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The opinion of the court was delivered by
Allegrucci, J.:
This is a declaratory judgment action filed by the plaintiffs against Henry P. Wheeler and Barr Brothers & Co., Inc., defendants/appellants. Plaintiffs seek a declaratory judgment that the 1954 bonds issued by the Kansas Turnpike Au thority (KTA) were properly defeased by the 1984 refinancing, and that plaintiffs banks properly discharged their fiduciary duties in permitting the defeasance. The district court granted summary judgment to the plaintiffs and the defendants perfected this appeal.
In 1954, the KTA issued $160,000,000.00 in turnpike revenue bonds to finance the construction of the Kansas Turnpike. The bonds were issued pursuant to a Trust Agreement adopted on October 1, 1954. The bonds have a stated maturity date of October 1, 1994. Under the Trust Agreement, the 1954 bondholders are given a first lien on the tolls and other revenues of the turnpike as security for the payment of interest and principal on the bonds. As long as the Trust Agreement is in effect, the turnpike revenues could not be pledged as security to another bond issue. The Trust Agreement designates Morgan Guaranty Trust Company of New York (Morgan) as trustee and the Fourth National Bank of Wichita (now Bank IV Wichita) as co-trustee. The Trust Agreement also designates as paying agents Bank IV Wichita, the First National Bank of Topeka (now Bank IV Topeka), and the First National Bank of Chicago. The interpretation of this Trust Agreement is the focus of the present action.
In 1984, approximately $36.6 million of the 1954 bonds remained outstanding. In order to finance a construction and improvement program for the Kansas Turnpike and the 18th Street Expressway in Kansas City, Kansas, and to release the first lien of the 1954 bondholders on the turnpike revenues, the KTA issued $134.7 million in new special obligation bonds. From the funds raised by the 1984 financing, $49,211,700.00 was used to purchase U.S. obligations which were then placed into an escrow account. The amount of the U.S. obligations placed into escrow by the KTA under the 1984 refinancing was determined to be sufficient to pay the principal and all interest on the 1954 bonds which remained outstanding in 1984. The KTA obtained a private opinion letter from the Internal Revenue Service determining that the refunding did not violate federal arbitrage laws. Under the refunding plan, KTA issued irrevocable instructions to Morgan to call the 1954 bonds on a series of six specified dates:
October 1, 1989 $1,213,000.00
October 1, 1990 $6,664,000.00
October 1, 1991 $6,889,000.00
October 1, 1992 $7,121,000.00
October 1, 1993 $7,362,000.00
April 1, 1994 $7,415,000.00
On February 14, 1986, Barr Brothers & Co., Inc., a Delaware corporation and municipal bond dealer, and Henry P. Wheeler filed a complaint in the circuit court of Cook County, Illinois. Barr Brothers and Wheeler are holders of bonds issued under the 1954 Trust Agreement. Barr Brothers and Wheeler brought the Illinois action individually and as a class action on behalf of all similarly situated bondholders, naming as defendants KTA, Morgan, Bank IV Wichita, Bank IV Topeka, and First National Bank of Chicago. The complaint alleged that the 1984 defeasance of the 1954 bonds was improper and a violation of the 1954 Trust Agreement. On April 10, 1986, the defendants in the Illinois action commenced this action for declaratory judgment in Shawnee County District Court.
On September 18, 1986, the Illinois action was dismissed by the Cook County circuit court. The court stated that “Kansas is the proper jurisdiction to hear and determine all the issues herein.”
The circuit court’s decision was affirmed on appeal by the Illinois Court of Appeals on June 11, 1987. Wheeler v. Kansas Turnpike Authority, 157 Ill. App. 3d 56, 510 N.E.2d 62 (1987). After discussing the rules relating to the doctrine of forum non conveniens, the Illinois appellate court found that the “most important” factor in its decision was “the public interest factor of having localized controversies decided at home.” 157 Ill. App. 3d at 58 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 67 S. Ct. 839 [1947]). The court stated:
“As we noted at the outset, the plaintiff s choice of forum will be disturbed only if the balance of factors strongly favors the defendant. After weighing the interests of the defendants discussed above, specifically, the difficulty in access to sources of proof, the cost of obtaining witnesses, the local interest of Kansas in having this dispute decided at home and the public interest factor as to the relative congestion of the courts, we believe that the balance of factors does in this case strongly favor the defendants. Moreover, after considering the public and private interests involved, it is evident that as related to the whole of the transaction between the parties, Illinois’ connection is minimal as compared to the interests of Kansas. Therefore, this action more properly belongs in Kansas.” 157 Ill. App. 3d at 60.
On April 22, 1987, the Shawnee County District Court denied the motion of defendants Barr Brothers and Wheeler for summary judgment on the grounds that Kansas lacked personal jurisdiction over them. Thereafter, both the plaintiffs and the defendants filed motions for summary judgment regarding the propriety of the 1984 refinancing plan. A pretrial conference was held on June 19,1987. On June 26, the defendants filed a motion for leave to file counterclaims, alleging breach of contract, breach of statutory contract, breach of fiduciary duty, securities violations, and common-law fraud. On August 4, 1987, the district court granted summary judgment on behalf of plaintiffs KTA, Morgan, Bank IV Wichita, Bank IV Topeka, and First National Bank of Chicago. Defendants appeal.
The defendants first contend that the 1984 defeasance of the outstanding 1954 bonds violates the terms of the 1954 Trust Agreement. They contend that the Trust Agreement does not permit the KTA to defease the outstanding 1954 bonds by issuing irrevocable instructions to call the bonds in a designated series of installments. Instead, the defendants contend that the Trust Agreement permits defeasance of the outstanding bonds only by the simultaneous redemption of all outstanding bonds at once and “at the earliest redemption date.”
Defeasance of outstanding bonds under the 1954 Trust Agreement is controlled by § 1201 of the Agreement:
“If, when the bonds secured hereby shall have become due and payable in accordance with their terms or shall have been duly called for redemption or irrevocable instructions to call the bonds for redemption shall have been given by the Authority to the Trustee, the whole amount of the principal and the interest and the premium, if any, so due and payable upon all of the bonds and coupons then outstanding shall be paid or sufficient moneys shall be held by the Trustee or the Paying Agents for such purpose under the provisions of this Agreement, and provisions shall also be made for paying all other sums payable hereunder by the Authority, then and in that case the right, title and interest of the Trustee and of the Co-Trustee shall thereupon cease, determine and become void, and the Trustee and the Co-Trustee in such case, on demand of the Authority, shall release this Agreement and shall execute such documents to evidence such release as may be reasonably required by the Authority, and shall turn over to the Authority or to such officer, board or body as may then be entitled by law to receive the same any surplus in any account in the Sinking Fund and all balances remaining in any other funds or accounts other than moneys held for the redemption or payment of bonds or coupons; otherwise this Agreement shall be, continue and remain in full force and effect.”
Section 1201 essentially provides two mechanisms by which the KTA could obtain the defeasance of outstanding 1954 series bonds. The KTA might defease the 1954 bonds by paying “the whole amount of the principal and the interest and the premium, if any, so due and payable upon all of the bonds and coupons then outstanding.” The second method of defeasance is for the KTA to require that “sufficient moneys” be held by the trustee or paying agents “for such purpose under the provisions of this Agreement, and provisions shall also be made for paying all other sums payable hereunder.” In the 1984 refunding, the KTA decided to adopt the second alternative. Section 1201 also designates three circumstances under which defeasance may occur:
(1) At maturity of the bonds on October 1, 1994, “when the bonds secured hereby shall have become due and payable in accordance with their terms”;
(2) when the bonds “shall have been duly called for redemption”; or
(3) when the KTA has given “irrevocable instructions to call the bonds for redemption.”
The plaintiffs in the present action appear to have complied with the terms of § 1201 by issuing irrevocable instructions to Morgan to call the bonds for redemption. There is no suggestion that the U.S. obligations placed into escrow are insufficient to pay the whole amount of the principal and interest due on the outstanding 1954 bonds. The propriety of the 1984 refunding also receives some support from the Kansas statutes which created the KTA and define its financing powers. The ability of the KTA to refund prior obligations by establishing trusts for payment of the outstanding obligations is reflected in L. 1953, ch. 308, § 17 (now codified at K.S.A. 68-2017). Section 17 provides that any turnpike project “if then in good condition and repair, shall become a part of the state highway system” when all of the principal and interest on bonds issued to finance the turnpike “shall have been paid or a sufficient amount for the payment of all such bonds and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders.” (Emphasis added.) The Trust Agreement recognizes the importance of Kansas statutory law in interpreting the Agreement. Section 1306 of the Trust Agreement provides in part: “This Agreement is executed with the intent that the laws of the State of Kansas shall govern its construction.” Section 1306 also provides: “All covenants, stipulations, obligations and agreements of the Authority contained in this Agreement shall be deemed to be covenants, stipulations, obligations and agreements of the Authority to the full extent authorized by the Enabling Act and permitted by the Constitution of the State of Kansas.”
In determining that the 1984 refinancing of the existing turnpike revenue bonds was proper, the district court found persuasive the reasoning of the Oklahoma Supreme Court in Application of Oklahoma Turnpike Authority, 416 P.2d 860 (Okla. 1966):
“The result reached here is entirely consonant with a virtually identical case decided by the Supreme Court of Oklahoma in 1966. [Citation omitted.] In fact, the only distinction even pointed to by defendants is that the record in the Oklahoma case apparently reflects that the refunded bonds were paid at the earliest date possible after the lien was released, the escrow established, and the bonds called. This is a distinction without a difference, however. Clearly, this is an option which KTA could have chosen under the Trust in the case at bar. It, however, made a different choice — a choice this Court has found not prohibited by either the Trust or ruling authority. The Oklahoma court did not require immediate redemption of called and refunded bonds. That is just the way it happened to have been done in that case.”
In Oklahoma Turnpike, the Oklahoma Turnpike Authority sought to refund three series of outstanding turnpike bonds. Two of the bond series, the 1961 series and the 1963 series, were issued under trust agreements which contained provisions identical to § 1201 of the 1954 Kansas Trust Agreement. 416 P.2d at 874-75. The other set of bonds, a 1950 series, was issued under a trust agreement which had “practically identical provisions with some immaterial variations.” 416 P.2d at 875.
The Oklahoma Supreme Court held that the provisions in the trust agreements of all three bond series permitted the turnpike authority to refund the bonds by issuing irrevocable instructions to call the bonds at future dates. The court stated:
“The quoted Section 1201 of each of the trust agreements securing the bonds of the three turnpikes being refunded provide that when irrevocable instructions have been given to call the bonds for redemption and sufficient moneys are held by the respective trustees to pay the principal and interest and premium (due on the date callable), the right, title and interest of such trustees shall cease and the trust agreements released and the balances of funds delivered to the Authority.” 416 P.2d at 876.
By issuing irrevocable instructions to the trustees to call the bonds for redemption and by insuring that the trustees held sufficient moneys to pay the principal, interest, and a premium, if any, the outstanding bonds were defeased, the obligations of the trustees were terminated, and the operation of the trust agreements was terminated.
In analyzing the Oklahoma Turnpike Authority’s rights and duties under the trust agreements, the Oklahoma Supreme Court stated:
“It is our opinion that the alternative provision of giving ‘irrevocable instructions to call the bonds for redemption’ coupled with the provisions for holding sufficient moneys to pay the principal, interest and (redemption) premiums, when considered in connection with the other parts of the quoted Section, can only be interpreted as an agreement or consent to advance refunding of the bonds.
“The Authority has or will give irrevocable instructions to call the bonds for redemption and has made provision that sufficient moneys be held for the purpose of paying the principal and the interest and the premium on all of the bonds when they become callable for redemption. These acts are in accord with the understanding expressed in the trust agreements. When the Legislature amended the statute in 1965, in the manner above set forth, it furnished the Authority an enlarged plan for refunding and furnished to the bondholders interim security for the safe and secure payment of the amounts due them when the bonds became redeemable. We fail to see wherein any security or rights have been impaired.” 416 P.2d at 875.
In attempting to distinguish Oklahoma Turnpike from the present case, the defendants argue that the decision of the Oklahoma court related solely to the series 1961 and series 1963 bonds which, at the time of the decision, were not then callable by the turnpike authority without the payment of a redemption premium. The defendants argue that the Oklahoma court “was not asked to consider advanced refunding of the 1950 bond issue which was already callable, just like the KTA’s 1954 Bonds.” The distinction advanced by the defendants does not find support in the Oklahoma decision. The Oklahoma court’s analysis of the turnpike authority’s rights under the defeasance provisions of the three trust agreements is not limited to occasions where the outstanding bonds are callable only upon the payment of a redemption premium. Instead, the Oklahoma court’s analysis applies with equal weight both to the immediately callable 1950 series bonds and the series 1961 and series 1963 bonds, which were non-callable. Moreover, the method of refunding approved by the Oklahoma court is inconsistent with the position advanced by the defendants. Although the series 1961 and series 1963 bonds were first callable for redemption on July 1, 1971, under the Oklahoma Turnpike Authority’s refinancing plans, these bonds were not redeemed until November 15, 1971. Thus, at the time the series 1961 and series 1963 bonds were redeemed, the bonds were callable for redemption upon the payment of a five percent redemption premium. 416 P.2d at 873. We find no support in the Oklahoma Turnpike decision for the callable/non-callable distinction advanced by the defendants.
The defendants argue that, in Oklahoma Turnpike, the delay in the redemption of the series 1961 and series 1963 bonds from July 1 to November 15, 1971, is a “minor point.” The delay, however, is an essential point, not a minor one. As discussed below, the defendants’ interpretation of the Trust Agreement requires grafting the phrase “at the earliest redemption date” onto the defeasance provisions of § 1201. Thus, under the interpretation advanced by the defendants, any delay in redeeming the bonds would be impermissible. The action of the Oklahoma Turnpike Authority in failing to immediately redeem the series 1961 and series 1963 bonds, coupled with the refusal of the Oklahoma court to require the immediate refunding of the bonds “at the earliest redemption date” or to impose any time requirement upon the redemption of the bonds, supports the district court’s reliance on Oklahoma Turnpike as persuasive authority in the present case.
The defendants next argue that the method of refunding adopted by the KTA violates § 307 of the Trust Agreement. Section 307 provides:
“Bonds and portions of bonds which have been duly called for redemption under the provisions of this Article, or with respect to which irrevocable instructions to call for redemption at the earliest redemption date have been given to the Trustee, in form satisfactory to it, and for the payment of the redemption price of which and accrued interest to the date fixed for redemption moneys shall be held by the Trustee or by the Paying Agents, in trust for the holders of the bonds or portions thereof to be redeemed, all as provided in this Agreement, shall not be deemed to be outstanding under the provisions of this Agreement.”
However, as noted by the district court in its memorandum decision, § 307 is only definitional in nature and does not explicitly or implicitly limit the timing of a permissible defeasance under § 1201. The district court stated that § 307
“has absolutely nothing to do with redemption prior to maturity. This section tells us which bonds are ‘outstanding’ for voting purposes and simply and logically provides that bonds which have been called for redemption at their earliest date and for which money has been set aside for payment are ‘not outstanding’ for these purposes. Likewise, there is absolutely no reason to read this language into Section 1201.”
We find the interpretation adopted by the district court is correct. Section 307 simply defines which bonds shall be considered “outstanding” under the Trust Agreement. Section 307 does not provide a time limit for defeasance under § 1201. Section 1201 permits a defeasance by the issuance of irrevocable instructions to call for redemption. There is no basis for inserting the phrase “at the earliest redemption date” from § 307 into the defeasance provisions of § 1201.
In support of their argument that § 307 serves to control the ability of the KTA to defease prior obligations, the defendants rely upon Ladt v. County of McCracken, 555 S.W.2d 620 (Ky. App. 1977). However, Ladt is wholly inapplicable in the present case. In Ladt, the trust agreement did not include an express defeasance provision comparable to § 1201 of the 1954 Kansas Trust Agreement (or to the trust agreements discussed in Oklahoma Turnpike). The Ladt court was, therefore, required to resort to a provision of the Kentucky trust agreement which is comparable to § 307 to permit a release of prior obligations. Ladt has no application in the present case where the rules relating to defeasance are independently and explicitly set forth in § 1201.
Section 1201 of the Trust Agreement defines the parties’ rights and obligations relating to the defeasance of prior turnpike obligations. The omission of the phrase “at the earliest redemption date” from the provisions of § 1201, although the phrase is used elsewhere in the Trust Agreement, clearly indicates that the parties entering into the Trust Agreement did not intend such a timing requirement to apply to § 1201.
The defendants next argue that the refinancing adopted by the KTA violates § 301 of the Trust Agreement. Section 301 deals with redemption of outstanding bonds and provides in part:
“The bonds issued under the provisions of this Agreement at the time outstanding may be redeemed prior to their maturity either
“(a) in whole, on any date not earlier than October 1,1962, at the option of the Authority, from any moneys that may be made available for such purpose, at the principal amount of the -bonds to be redeemed, together with the interest accrued thereon to the date fixed for redemption, plus a premium of 3% of such principal amount if redeemed on or prior to September 30, 1965, 2 ¥t% if redeemed thereafter and on or prior to September 30, 1968, 2% if redeemed thereafter and on or prior to September 30,1971,1 k% if redeemed thereafter and on or prior to September 30, 1974, 1% if redeemed thereafter and on or prior to September 30, 1977, Vi of 1% if redeemed thereafter and on or prior to September 30, 1980, and without premium if redeemed thereafter, or
“(b) in part, on any interest payment date not earlier than October 1, 1958, from moneys in the Kansas Turnpike Interest and Sinking Fund, at the principal amount of the bonds to be redeemed, together with the interest accrued thereon to the date fixed for redemption, plus a premium of 3% of such principal amount if redeemed on or prior to April 1, 1962, 2 k% if redeemed thereafter and or on prior to April 1, 1965, 2% if redeemed thereafter and on or prior to April 1, 1968,1 k% if redeemed thereafter and on or prior to April 1, 1971,1% if redeemed thereafter and on or prior to April 1, 1974, k of 1% if redeemed thereafter and on or prior to April 1, 1977, and without premium if redeemed thereafter.”
The defendants contend that the refinancing procedure adopted by the KTA violates § 301 because it complies with neither subsection (a) for a redemption in whole nor subsection (b) for a redemption in part. According to the defendants’ argument, the refinancing was not a redemption in whole because the bonds were called in a series of installments; nor was the refinancing a redemption in part because the financing for the redemption was obtained by issuing new turnpike bonds and was not accomplished through the use of “moneys in the Kansas Turnpike Interest and Sinking Fund,” reflecting accumulated turnpike revenues.
The district court correctly found that the 1984 refinancing was not prohibited by § 301. The district court stated: “[T]he call of the entire issue, albeit upon a redemption timetable, is a call of the ‘whole’ issue, as contemplated in Section 301(a) of the Trust.” Under the 1984 refinancing plan, all outstanding 1954 series bonds are redeemed prior to maturity. The district court found that, under the refinancing plan, “[e]very single unpaid bond was accelerated in its maturity date by KTA’s irrevocable instructions, some by several years.” The district court did not err in concluding that the issuance of irrevocable instructions to call all outstanding bonds in a series of installments was a valid redemption in whole.
The defendants argue that the refinancing plan does not comply with the requirements of § 301(a) because this subsection uses the singular “date” and does not permit a series of calls. The defendants’ argument is unpersuasive for several reasons. First, subsection (a) permits a redemption on “any date” after October 1, 1962. The subsection thus uses language essentially identical to that contained within subsection (b) relating to partial redemptions, which obviously contemplates redemption upon more than one occasion even though the subsection also uses the term “date.” That subsection (a) does not prohibit the 1984 refunding is also supported by a review of the purpose underlying § 301. Section 301(a) simply provides that outstanding 1954 series bonds may not be redeemed in whole prior to October 1, 1962; may be redeemed from October 1, 1962 to September 30, 1980, upon the payment of various designated premiums; or may be redeemed without premium “thereafter.” The subsection does not directly prohibit the method of refunding adopted in the present case.
Moreover, § 301 does not remain an independent obligation of the KTA after defeasance. Once the KTA has complied with the requirements for defeasance under § 1201,
“the right, title and interest of the Trustee and of the Co-Trustee shall thereupon cease, determine and become void, and the Trustee and the Co-Trustee in such case, on demand of the Authority, shall release this Agreement and shall execute such documents to evidence such release as may be reasonably required by the Authority . . .
Thus, when defeasance occurs under § 1201, the independent provisions of the Trust Agreement, such as § 301, no longer serve as independent binding obligations on the KTA. As indicated above, the 1984 financing procedures adopted by the KTA comply with the requirements of § 1201. Having properly defeased the bonds under § 1201, the KTA no longer remains subject to the independent redemption requirements of § 301.
The defendants next contend that the 1984 refunding was improper because Morgan, as trustee, was not authorized to invest the money obtained by the refunding under § 602 of the Trust Agreement. However, while § 602, which sets forth the requirements for the various accounts to be maintained by the trustee, does not explicitly contain authorization for the trustee to invest obligations obtained by refunding the 1954 bonds, neither does § 602 explicitly prohibit the procedures used to obtain advance refunding.
Both the Trust Agreement and Kansas law implicitly recognize the ability of KTA and Morgan, as trustee, under the Trust Agreement to invest moneys obtained from refunding procedures. Section 1201 provides that defeasance may occur where the principal, interest, and premium (if any) on outstanding bonds “shall be paid or sufficient moneys shall be held by the Trustee or the Paying Agents for such purpose under the provisions of this Agreement.” Section 1201 thus implicitly authorizes the trustee to invest funds to be used in paying the outstanding obligations. In addition, Kansas statutory law recognizes the authority of the KTA to invest moneys obtained from the refunding plan. G.S. 1949, 68-2004(n) (1955 Supp.) granted authority to the KTA to “do all acts and things necessary or convenient to carry out the powers expressly granted in this act.”
Finally, in 1982, the Kansas Legislature explicitly authorized the escrow investment of moneys obtained through refunding of the 1954 bonds. K.S.A. 68-2044. The Oklahoma Supreme Court, in Oklahoma Turnpike, dealt with the ability of the turnpike authority to rely upon legislative enactments passed subsequent to the trust agreements in issue. The Oklahoma court stated:
“At this point we observe that the outstanding bonds of the three named turnpikes were obviously issued prior to the 1965 amendment, but were issued under the statute prior to amendment which limited each refunding issue to the bonds of the project being refunded and limited the revenue pledged to the refunding bonds to that derived from the separate project. In view of this circumstance there may be some belief that the Authority may not rely upon the amended statute. Such belief is unfounded.” 416 P.2d at 874.
The court concluded:
“When the Legislature amended the statute in 1965, in the manner above set forth, it furnished the Authority an enlarged plan for refunding and furnished to the bondholders interim security for the safe and secure payment of the amounts due them when the bonds became redeemable.” 416 P.2d at 875.
We find that the 1984 refunding plan which set aside moneys for payment of the outstanding 1954 bonds was both implicitly recognized by the terms of the Trust Agreement and expressly supported by Kansas statutory law.
The second issue raised by the defendants is whether the district court relied upon improper and irrelevant facts in granting summary judgment. The defendants take issue with the district court’s findings that the 1984 refunding “was necessary to carry out certain needed repairs and improvements” of the Kansas Turnpike; statements by the court regarding the 1984 IRS opinion letter finding that the refunding plan did not violate federal law; and finally, the court’s statement that the defendants had originally filed their Illinois action after they had “deter mined that Illinois was the jurisdiction most likely to find in their favor.”
These findings and statements were not factors in the district court’s decision, which turned solely upon the terms of the 1954 Trust Agreement. The three facts which the defendants cite as irrelevant occurred during the course of the district court’s “highly summarized” background statement of the case. In its legal analysis of the Trust Agreement, the district court explicitly indicated that it did not consider the IRS letter or the alleged necessity for the 1984 refunding to be controlling issues. The other allegedly irrelevant fact relates to the district court’s conclusion that the defendants had originally filed suit in Illinois because they had concluded that it was the most favorable jurisdiction for their case. The district court’s statement appears to be based upon defendant Barr Brothers’ apparent solicitation of potential Illinois plaintiffs. On August 8, 1985, Barr Brothers ran an advertisement in the Wall Street Journal, stating: “ATTENTION ILLINOIS RESIDENTS,” urging all Illinois owners of 1954 Kansas Turnpike revenue bonds to contact Barr Brothers. In the present case, it is unnecessary to determine whether the district court’s conclusion was or was not a reasonable inference from Barr Brothers’ actions. A review of the district court’s conclusions of law fails to indicate that it played any role in the basis for the district court’s decision. Rather, the district court’s decision turns solely upon the terms and provisions of the Trust Agreement.
The defendants, in their brief to this court, advance several items of parol evidence supporting their interpretation of the Trust Agreement. However, having reviewed the Trust Agreement and concluding that it was unambiguous, the district court properly refused to consider extrinsic evidence. Brown v. Lang, 234 Kan. 610, 675 P.2d 842 (1984); Bailey v. Talbert, 179 Kan. 169, 294 P.2d 220 (1956).
The defendants next contend that the district court erred in denying defendants permission to file counterclaims. The defendants filed their motion for permission to file counterclaims against the plaintiffs on June 26, 1987. The defendants sought to amend their answer to include counterclaims relating to breach of contract, breach of statutory contract, breach of fiduciary duty, federal securities laws violations, and common-law fraud. The district court rendered summary judgment on plaintiffs’ petition for declaratory relief on August 4, 1987. On November 17, 1987, the district court denied the defendants’ motion for leave to file counterclaims, finding that the issue was “moot.”
Counts I through III of the defendants’ counterclaims (relating to breach of contract, breach of statutory contract, and breach of fiduciary duty) depend upon an interpretation of the 1954 Trust Agreement and whether the 1984 refunding was consistent with the terms of the Trust Agreement. The district court’s conclusion that the 1984 refunding was proper effectively resolved these counterclaims against the defendants. However, Counts IV and V of the defendants’ counterclaims (relating to federal securities laws violations and common-law fraud) also include allegations of independent intentional misrepresentations by the KTA. The resolution of the parties’ rights and obligations under the 1954 Agreement does not, therefore, totally resolve the issues set forth by Counts IV and V. However, even if part of the allegations made in these two Counts were not “moot,” the defendants’ counsel informed the district court at pretrial that no claim for fraud would be made in this case. In addition, this action was commenced on April 10, 1986, followed by extensive pretrial discovery and a pretrial conference which was held on June 19, 1987. The defendants’ motion to file their counterclaims was not filed until June 26, 1987, over fourteen months after this action was commenced. The district court has discretion to deny the motion as untimely. We find no error in the trial court’s denying the defendants permission to file their counterclaims.
Finally, the defendants argue that the district court erred in its conclusion that they were subject to personal jurisdiction in Kansas. The defendants first argue that the district court erred in concluding that the defendants fell within the provisions of the Kansas long-arm statute, K.S.A. 1987 Supp. 60-308.
The relevant portion of the Kansas long-arm statute provides:
“Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
“(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.” K.S.A. 1987 Supp. 60-308(b).
The defendants contend that 60-308(b)(5) does not apply to them in the present case since, as bondholders, they “are only third party beneficiaries under the Trust Agreement.” We disagree. The defendants possess enforceable contractual rights under the Trust Agreement, and have sought to enforce those rights both in Illinois and in the present action. The defendants voluntarily purchased bonds issued by a public agency of the State of Kansas and, thus, became creditors of that agency. The Trust Agreement provides that it is intended to be “for the sole and exclusive benefit of the parties hereto and the holders from time to time of the bonds issued hereunder,” and grants enforceable contractual rights to the bondholders. In their Illinois complaint, the defendants alleged that the plaintiffs owe “fiduciary and contractual duties to the Bondholder Class.” The defendants’ argument that they have not entered into an express or implied contract is without merit.
The defendants also argue that the district court’s exercise of personal jurisdiction in the present case is a violation of due process. The constitutional limitations upon the exercise of personal jurisdiction were reviewed by the United States Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). In Burger King, the Supreme Court restated the requirement that due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws. 471 U.S. at 474-75.
“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ International Shoe Co. v. Washington, 326 U.S., at 320. Thus courts in ‘appropriate case[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 292. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See, e.g., Keeton v. Hustler Magazine, Inc., [465 U.S.] at 780; Calder v. Jones, [465 U.S.] at 788-89; McGee v. International Life Insurance Co., [355 U.S.] at 223-24. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” 471 U.S. at 476-77.
In the present case, two courts in Illinois and one court in Kansas have concluded that Kansas was a proper jurisdiction for the resolution of the present controversy. A review of the facts present in the case fails to reveal that this conclusion was erroneous. Each bond contains the statement that “the holder hereof assents to all of the provisions of the [1954 Trust] Agreement.” The Trust Agreement is governed by Kansas law and the bonds issued under the Trust Agreement are secured by a lien on Kansas Turnpike revenues. All financial accounts held by the KTA are within the State of Kansas.
The defendants also contend that their purchase of the turnpike revenue bonds was solely a “passive investment activity.” However, the record fails to support this characterization of the defendants’ activities. In deciding whether to buy or sell 1954 series bonds, agents of defendant Barr Brothers regularly telephoned KTA officers in Kansas for information relating to the bonds. Defendant Wheeler wrote to the KTA in 1981, requesting financial information. Both defendants requested records from the KTA pursuant to the Kansas Open Records Act, K.S.A. 45-215 et seq., and inspected documents in Kansas pursuant to the terms of the 1954 Trust Agreement. These investigations by the defendants were not made pursuant to discovery in the course of Kansas litigation, and were made at the time discovery in the Illinois case was limited to the issue of personal jurisdiction.
In concluding that the defendants may properly be subjected to jurisdiction in Kansas, the district court stated in its memorandum decision:
“First, it is clear that the defendants voluntarily purchased a number of KTA Series 1954 Bonds. The defendants knew that these bonds were issued by a governmental entity of the State of Kansas and were secured by a lien on revenues to be generated from assets located in Kansas. Furthermore, the Kansas tollway is a creature of Kansas law and the KTA Series 1954 Bonds were a tax-free investment in Kansas. Certainly the above facts indicate that the defendants created continuing obligations between themselves and residents of Kansas, and have availed themselves of the privileges and benefits of Kansas law.”
“Applying these factors, the Court finds sufficient minimum contacts. Regarding contemplated future consequences, if the defendants in this case were to enforce their rights as lienholders, they would have to sue in Kansas, where all the secured property is. Furthermore, in examining the terms of the contract, the Trust Agreement contains a choice of law provision designating Kansas as the forum state. ‘Although such a provision standing alone would be insufficient to confer jurisdiction,’ it does reinforce the defendants’ ‘deliberate affiliation’ with Kansas and the ‘reasonable foreseeability of possible litigation’ here. Burger King, 471 U.S. at 482.
“Finally, what distinguishes the defendants in this case from all other KTA Series 1954 Bondholders, is that the defendants have filed a claim alleging a possible violation of the 1954 Trust Agreement. By doing so, they have invoked the choice of law provision of the Trust Agreement. Moreover, they have initiated a controversy over the 1954 bond issuance, which involves a Kansas co-trustee and paying agent, a security interest in Kansas property, and benefits under Kansas law. Certainly the defendants could foresee being haled into a Kansas court. Indeed, if they prevail, they will have to come here to enforce their lien. As a result the facts show that the defendants have established sufficient minimum contacts with the State of Kansas and have purposefully availed themselves of the privileges of conducting business in Kansas.
“Once it has been decided that the defendants purposefully established minimum contacts with Kansas, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice. Burger King, 471 U.S. at 476. These factors include ‘the forum state’s interest in adjudicating the dispute,’ and ‘the plaintiffs interest in obtaining convenient and effective relief.’ [Burger King] at 477.
“Applying these factors, it is clear that Kansas has an interest in resolving a dispute over the KTA tollway, a creature of Kansas law, and an essential highway to the economy of Kansas. All the assets of the KTA are located in Kansas and, furthermore, Kansas law controls on the substantive issues of this case.
“The interests of the parties would also be best served by resolving this dispute in Kansas. Almost all sources of proof and most of the witnesses are in Kansas. Also, the defendants have not demonstrated that they would be subject to enough hardships to render jurisdiction in Kansas unreasonable. Therefore, for the foregoing reasons, the assertion of personal jurisdiction by the State of Kansas over the defendants does not offend any ‘traditional notions of fair play and substantial justice.’ ”
The district court was correct in concluding that Kansas was a proper forum for the resolution of the present controversy and in asserting personal jurisdiction over the defendants.
In view of our decision herein, it is not necessary to address the issue concerning the trustee’s and co-trustee’s immunity based upon their good faith reliance upon the opinion of counsel.
Finding no error, we affirm the judgment of the district court.
Miller and Holmes, JJ., not participating. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State pursuant to K.S.A. 1987 Supp. 22-3602(b)(l) from the district court’s granting of the defendant’s motion to dismiss one count of theft, K.S.A. 1987 Supp. 21-3701(a).
The facts are not in dispute. The defendant failed to return the 1979 Chevrolet Monte Carlo which he borrowed from a friend on December 16, 1986. On December 30, 1986, the defendant was charged in Clay County, Missouri, with receiving the stolen 1979 Chevrolet Monte Carlo, pursuant to Mo. Rev. Stat. § 570.080 (1986). On the next day, the defendant was charged with theft of the same 1979 Monte Carlo in Sedgwick County, Kansas, pursuant to K.S.A. 1987 Supp. 21-3701(a). On February 11, 1987, the defendant pled guilty in Missouri to an amended misdemeanor charge of receiving stolen property and was sentenced to one year in the county jail and costs. The defendant moved to dismiss the complaint filed in Sedgwick County on September 4, 1987, asserting double jeopardy pursuant to K.S.A. 21-3108(3)(a). The district court granted defendant’s motion and dismissed the case. The State appeals from the dismissal.
The sole issue before this court on appeal is whether the prosecution of the defendant for theft is barred by K.S.A. 21-3108, which provides, in part:
“(3) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state or in the municipal court of any city of this state for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began.”
The State makes two arguments in support of its position that prosecution of the defendant in the present case is not barred by K.S.A. 21-3108(3)(a). First, the State argues that the statute has no application in the present case since Kansas did not have “concurrent jurisdiction” over the crime prosecuted in Missouri. Second, the State argues that the Kansas crime of theft as defined by K.S.A. 1987 Supp. 21-3701(a), and the Missouri crime of receiving stolen property, in violation of Mo. Rev. Stat. § 570.080, both require “proof of a fact not required in the other prosecution.”
The State correctly points out that, under Kansas law, a person may not be convicted of both theft and receiving stolen property on the same set of circumstances. To be convicted of receiving stolen property pursuant to K.S.A. 1987 Supp. 21-3701(d), the property must have been stolen by another and, therefore, the two crimes are mutually exclusive. See State v. Alvarez, 9 Kan. App. 2d 371, 373, 678 P.2d 1132, rev. denied 235 Kan. 1042 (1984). For that reason, the State argues that the Sedgwick District Court would not have had concurrent jurisdiction with the Missouri court for the crime of receiving stolen property.
We do not agree with the State’s interpretation of the term “concurrent jurisdiction.” While Kansas law would prevent a conviction of a defendant for both theft and receiving stolen property, a Kansas court would still have jurisdiction to convict a person of either crime. The concept of concurrent jurisdiction was discussed in State v. Russell, 229 Kan. 124, 622 P.2d 658 (1981). In Russell, this court held that K.S.A. 21-3108(3)(a) did not prevent the conviction of a defendant for driving under the influence of alcohol, although he had been previously convicted for the same crime in Missouri. This court found that, in driving under the influence of alcohol in both states, the defendant had committed two separate crimes, and neither Kansas nor Missouri would possess concurrent jurisdiction over the crime occurring in the other state. This court said:
“Under such circumstances, does the District Court of Johnson County, Kansas, have concurrent jurisdiction with the Circuit Court of Jackson County, Missouri? We think not. The concept of concurrent jurisdiction entails two different courts having jurisdiction over the subject matter of the controversy and either court being a proper forum for its resolution. [Citation omitted.]
“The issue before the Kansas court on trial of this charge would be whether defendant drove a vehicle in Kansas while under the influence of intoxicating liquor. Whether defendant may have committed a similar crime in Missouri is wholly immaterial to the Kansas case. The two crimes are separate and complete within themselves.” (Emphasis added.) 229 Kan. at 131.
Our decision in Russell was based upon the “rather unique” nature of the crime of driving under the influence, as compared with other crimes. We explained the difference:
“If the Kansas prosecution is barred by defendant’s plea of guilty in the Missouri court, it is only by virtue of the provision of K.S.A. 1979 Supp. 21-3108(3). In order for the statute to bar the Kansas prosecution the Kansas court herein must have concurrent jurisdiction with the Circuit Court of Jackson County, Missouri. The same conduct must give rise to both prosecutions with no additional fact being necessary to prove the prosecution — there must be a substantial identity of the crimes. The statute readily applies to crimes such as kidnapping and conspiracy, parts of which by their very nature can occur in different locations. The fact part of a single kidnapping occurs in Kansas and part occurs in Missouri would not be considered two kidnappings in applying the statute.
“Driving under the influence, however, is a rather unique crime. The proscribed conduct is the doing of a particular act while in a particular condition— yet, neither the act nor the condition, alone, is illegal. To convict, the prosecution must prove both the act and the condition. The drinking of intoxicating liquor is not the crime and the State does not have to prove when and where the same was consumed. The offense may be commenced and completed in less than one minute. . . . Conviction of the offense must rest upon proving both the act and the condition occurred at a particular place and time.” 229 Kan. at 130-31.
However, unlike the crime of driving under the influence, the conduct for which the State now seeks to prosecute the defendant is identical to the conduct for which he was previously prosecuted by the State of Missouri. In both cases, the defendant is alleged to have stolen a 1979 Chevrolet Monte Carlo. The Missouri prosecution alleged no additional facts, since Missouri law permits a defendant to be convicted for receiving previously stolen property. Mo. Rev. Stat. § 570.080. Although, under Kansas law, the Sedgwick District Court could not have convicted the defendant of both theft and receiving stolen property, the definition of concurrent jurisdiction is not limited to the ability of the court to convict a defendant upon a specified charge. Rather, under our decision in Russell, concurrent jurisdiction exists when two separate courts possess “jurisdiction over the subject matter of the controversy and either court [is] a proper forum for its resolution.” 229 Kan. at 131. In the present case, the subject matter of the controversy was the same for both the Missouri and Kansas prosecutions: one 1979 Chevrolet Monte Carlo, and both Kansas and Missouri had jurisdiction to prosecute.
The State’s second argument is no more persuasive than the first. The State argues that the Missouri crime of receiving stolen property and the Kansas crime of theft contain separate elements. According to the State’s position, the Missouri crime of receiving stolen property requires proof of the following elements:
“1) Receiving, retaining or disposing of
2) the property of another
3) intending to deprive the owner
4) occurring within the State of Missouri and done
5) with the knowledge that the property was stolen, or under circumstances where the defendant should have known it was stolen.”
The Kansas crime of theft requires proof of the following elements:
“1) Obtaining or exertion of unauthorized control over
2) the property of another
3) intending to permanently deprive them of their property
4) within the State of Kansas.”
It is apparent that all of the elements of theft required by Kansas law are contained within the Missouri crime of receiving stolen property, with one exception. The State asserts that Kansas law requires proof that the theft occur “within the State of Kansas” as an element of that crime.
We find two problems with the State’s position. First, in listing the requirements for the proof of theft in Kansas, the State cites only to the theft statute, K.S.A. 1987 Supp. 21-3701(a). This statute does not independently require that the theft occur within the State of Kansas. Kansas statutory law does provide limitations upon the territorial application of its criminal code. However, it does not require proof that the crime was committed entirely “within the State of Kansas.” K.S.A. 21-3104(1) requires that a defendant have some connection with the State of Kansas in order to permit a prosecution of that person for violations of the Kansas Criminal Code. However, this connection does not require proof that the crime be committed “within the State of Kansas,” as asserted by the State. Rather, the territorial requirements of K.S.A. 21-3104(l)(a) are satisfied if the defendant “commits a crime wholly or partly within this state.” (Emphasis added.) The Judicial Council’s comment to this section states:
“Subsection (l)(a) applies where all or part of a crime is committed in the state. Where the entire crime is committed in Kansas, there is no problem of jurisdiction. However, this subsection, as amplified by subsection (2) makes it clear that the state has jurisdiction where any element or the result of the crime occurs in Kansas. Under (l)(n) two states may have concurrent jurisdiction over the same crime.” (Emphasis added.)
Thus, from a factual standpoint, the State’s argument that the Kansas crime of theft contains an additional element not contained within the Missouri crime of receiving stolen property is incorrect. The State need not prove that the defendant committed the theft solely within the State of Kansas, but need only prove that “a constituent and material element” of the crime of theft occurred within this state. K.S.A. 21-3104(2).
A second and even more persuasive reason exists for rejecting the State’s argument. Essentially, the State has grafted onto the substantive requirements of the Missouri and Kansas crimes the venue and territorial jurisdictional requirements of each jurisdiction. The State then argues that, because each state’s crime has separate elements (the separate venue requirements), therefore each crime requires proof of a fact not required in the other, and K.S.A. 21-3108(3)(a) does not bar a second prosecution of the defendant in Kansas. The State’s method of analysis is merely a method of circumventing the requirements of K.S.A. 21-3108(3)(a), and would in essence nullify any application of the statute. The general requirements of venue and territorial juris diction apply to all of the crimes designated in the Kansas Criminal Code. The position advocated by the State would permit any prosecutor to ignore the requirements of K.S.A. 21-3108(3)(a) and prosecute a defendant for a crime for which he has been formerly prosecuted in another jurisdiction simply by arguing that the two jurisdictions contain separate venue requirements and that, therefore, each crime requires proof of a fact not required in the other prosecution. To accept the State’s argument, we would have to conclude the legislature passed K.S.A. 21-3108(3) intending that it have no effect on existing Kansas law. To the contrary, the intent was to substantially change existing Kansas law, as indicated by the Judicial Council notes to this section:
“Subsection (3) provides a bar to subsequent prosecution in case of prior prosecution in another jurisdiction or in a municipal or police court of this state.
“In the absence of statute, the rule against double jeopardy does not apply as between separate sovereignties. Generally, a prosecution in the federal court or in the courts of another state will not bar a prosecution in Kansas, based on the same conduct. However, there are exceptions. Former K.S.A. 21-104 provided that persons charged with stealing or robbing in another state and bringing stolen property into Kansas could plead a former conviction or acquittal in another state, territory or country. Former K.S.A. 65-2520 made conviction or acquittal under the federal narcotics laws a bar to prosecution under state law for the same unlawful conduct. Hence, the section is not without precedent in Kansas law.
“Under this section, an acquittal or conviction in a federal court or a court of any other state or a municipal or police court of this state having concurrent jurisdiction would bar a prosecution in Kansas based on the same conduct. Also, the section makes res judicata applicable between jurisdictions.”
The “separate sovereignties” doctrine, except for the exceptions noted, was the law in Kansas prior to the enactment of K.S.A. 21-3108. Earwood v. State, 198 Kan. 659, 426 P.2d 151 (1967).
K.S.A. 21-3108 serves to bar, as a general rule, subsequent prosecutions in Kansas for crimes which have been formerly prosecuted in other jurisdictions. The statute implicitly recognizes that the venue requirements of Kansas and the other jurisdiction will be different, and the clause in the statute which provides that a subsequent prosecution in Kansas may be undertaken where “each prosecution requires proof of a fact not required in the other prosecution” cannot be interpreted to include the separate venue requirements of Kansas and the other jurisdiction. K.S.A. 21-3108(3)(a). Otherwise, the bar to prosecu tion provided by the statute would become a nullity and the protection afforded by the statute would become meaningless.
The State makes one final argument in support of its appeal. The State cites Heath v. Alabama, 474 U.S. 82, 88 L. Ed. 2d 387, 106 S. Ct. 433 (1985), and states the holding in that'case “is contrary to K.S.A. 21-3108(3)(a) which explicitly allows a bar to prosecution in this case. The law of the states must, however, defer to the ultimate authority of the constitution. City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979).”
In Heath, the United States Supreme Court held that the double jeopardy protections of the federal Constitution did not prohibit successive state prosecutions for the same crime. The Supreme Court held that, because the states were separate sovereigns, each could independently, and successively, punish a defendant for the same crime arising from the same series of actions.
We assume the State is arguing that K.S.A. 21-3108(3) is unconstitutional. It is true that, in Heath, the Supreme Court held that separate states have the power to successively prosecute crimes which have been previously prosecuted by sepárate sovereigns. However, neither Heath nor any other decision of the United States Supreme Court has held or intimated that a state is required by the United States Constitution to do so. The essence of Heath and all other decisions of the United States Supreme Court applying the dual sovereignty doctrine is that separate sovereigns have the right and the option to subsequently prosecute a defendant for a crime for which he has formerly been prosecuted by another sovereign, but are not required to do so. The State has not cited any authority nor are we aware of any that suggests the decision of a state legislature to waive, by statute, that right and option is unconstitutional. We find no merit in the State’s argument.
We conclude that K.S.A. 21-3108(3) bars the prosecution of the defendant for theft of the 1979 Chevrolet Monte Carlo in the Sedgwick District Court based upon his conviction in the Circuit Court of Clay County, Missouri, of receiving the same 1979 Chevrolet Monte Carlo.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
In this appeal by the State, we are asked to determine two issues. Appellate jurisdiction of the first issue is claimed under K.S.A. 1987 Supp. 22-3602(b)(l), that is, an appeal “[f]rom an order dismissing a complaint, information or indictment.” Appellate jurisdiction of the second issue is claimed under K.S.A. 1987 Supp. 22-3602(b)(3), that is, an appeal “upon a question reserved by the prosecution.”
The journal entry filed herein states that Count II of the complaint (driving a motor vehicle while driving privileges are suspended, K.S.A. 1987 Supp. 8-262) was dismissed by the district court. The record shows conclusively that this is an incorrect statement. At the close of the State’s evidence in the jury trial herein, the trial court sustained defendant’s motion for judgment of acquittal as to Count II. We held in State v. Whorton, 225 Kan. 251, Syl. ¶ 4, 589 P.2d 610 (1979), that no appeal lies from a judgment of acquittal. In Whorton, the trial judge had even designated his action as a dismissal, but we held the trial judge’s characterization of his own action does not control the classification thereof. We conclude we have no jurisdiction to determine the first issue raised herein.
The second question was specifically reserved by the prosecution and is properly before us under the authority of K.S.A. 1987 Supp. 22-3602(b)(3). Whether we should entertain the ap peal on the question reserved must now be determined. It has long been the rule of this court that questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court in its rulings adverse to the State. State v. Adee, 241 Kan. 825, 826, 740 P.2d 611 (1987); State v. Willcox, 240 Kan. 310, Syl. ¶ 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. ¶ 1, 436 P.2d 377 (1968). Appeals on questions reserved by the State have been generally accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. at 325. We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Holland, 236 Kan. at 841.
The question reserved is the propriety of a trial court’s determination that, under the Nonresident Violator Compact of 1977 (Compact) (K.S.A. 8-1219), the division of motor vehicles could not suspend Hudon’s driver’s license for more than one year by virtue of the language contained in K.S.A. 1987 Supp. 8-256(a), and that the no-date-certain period of suspension was violative of the specifically designated period of suspension requirement of K.S.A. 8-1474. The Compact has not previously been before us. The question herein may well arise in other prosecutions, and we believe it is of sufficient statewide interest to warrant our determination thereof.
A summary of the background facts is appropriate at this point. Defendant Mark Hudon is a resident of Kansas. On January 11, 1986, Mr. Hudon was ticketed for speeding in Kansas City, Missouri. He neither appeared in court as required or paid his $37.00 fine.
Kansas and Missouri are both members of the Nonresident Violator Compact, a multi-state means of dealing with drivers who violate the traffic laws of another state. In Kansas the Compact is codified at K.S.A. 8-1219. Defendant’s failure to comply with the citation triggered the operation of the Compact. Ultimately, The State of Missouri reported to the Kansas Department of Revenue that Mark Hudon, possessor of a valid Kansas driver’s license, had failed to appear in court to pay his fine and costs within the specified time frame. Based upon this notice, the Kansas Department of Revenue withdrew Hudon’s driving privileges by suspending his driver’s license pursuant to K.S.A. 8-1219 “until Ticket is satisfied.” The date of withdrawal of driving privileges was June 17,1986. The Division of Vehicles of the Department of Revenue notified Hudon of its action on June 17, 1986, by mailing same to Hudon’s last known address, according to division records, at 2225 Rail Lane, Kansas City, Kansas 66103.
On July 20,1987, some 13 months later, Hudon was stopped in Johnson County after driving erratically at a high speed. He was arrested and charged the next day with one count of driving under the influence of alcohol (K.S.A. 1987 Supp. 8-1567), one count of driving while license cancelled, suspended, or revoked (K.S.A. 1987 Supp. 8-262), and one count of obstructing legal process or official duty (K.S.A. 21-3808). In the resultant jury trial, Hudon was convicted of obstruction of legal process (Count III) and was granted a judgment of acquittal on the suspended license charge (Count II), but the jury was unable to reach a verdict on the DUI charge (Count I). Subsequently, the State dismissed the DUI charge.
The relevant portion of the Compact is contained in Section (a) of Article IV thereof, as follows:
“Upon receipt of a report of a failure to comply from the licensing authority of the issuing jurisdiction, the licensing authority of the home jurisdiction shall notify the motorist and initiate a suspension action, in accordance with the home jurisdiction’s procedures, to suspend the motorist’s driver’s license until satisfactory evidence of compliance with the terms of the traffic citation has been furnished to the home jurisdiction licensing authority. Due process safeguards will be accorded.” (Emphasis supplied.)
K.S.A. 1987 Supp. 8-256(a) provides:
“The division shall not suspend a person’s license to operate a motor vehicle on the public highways for a period of more than one year, except as permitted under K.S.A. 40-3104 and 40-3118, and amendments thereto, and K.S.A. 8-262, 8-1219, 8-2107 or 8-2110, and amendments thereto.”
K.S.A. 8-1474 defines “suspension of a driver’s license” as follows:
“ ‘Suspension of a driver’s license’ means the temporary withdrawal by formal action of the division of a person’s license or privilege to operate a motor vehicle on the highways, which temporary withdrawal shall be for a period specifically designated by the division.”
The trial court held that the division of motor vehicles could not suspend Hudon’s driver’s license for more than one year by virtue of the language contained in K.S.A. 1987 Supp. 8-256(a), and that the no-date-certain period of suspension was violative of the specifically designated period of suspension requirement of K.S.A. 8-1474. In support thereof, the trial court relied on City of Overland Park v. Rice, 222 Kan. 693, 567 P.2d 1382 (1977). In Rice, the motorist was convicted of driving while his license was suspended. On appeal, he challenged the conviction contending the period of his suspension had expired at the time of a later incident and, therefore, he could not be guilty of the alleged violation. The length of the suspension was 60 days. The Kansas Division of Motor Vehicles’ order of suspension stated the “period of suspension runs from the date the department receives your license.” 222 Kan. at 694.
We reversed the conviction, finding that portion of the order referring to the beginning of the suspension “from the date the department receives your license” to be null and void, reasoning that the statutory definition of “suspension of driver’s license,” (K.S.A. 1972 Supp. 1972 Supp. 8-234[r]; repealed L. 1975, ch. 36, § 33) which called for the “temporary withdrawal . . . for a period specifically designated by the division of vehicles” should be construed “to require that a suspension of a driver’s license be made only by a formal order of the division of vehicles in which the period of suspension is specifically designated with a beginning date and an ending date so that no reference is required to be made to the happening of some future event or to some outside document.” 222 Kan. at 696. The Compact was not involved in the Rice case.
The whole purpose of the Compact is to compel the nonresident violator to make his or her peace with the issuing jurisdiction by paying the fine or contesting the action to a final resolution. The Compact is codified in K.S.A. 8-1219, and K.S.A. 8-1219 is specifically excepted from the one-year maximum suspension of driver’s licenses contained in K.S.A. 1987 Supp. 8-256(a).
Section (a) of Article IV of the Compact mandates that the period of suspension shall run “until satisfactory evidence of compliance with the terms of the traffic citation has been furnished to the home jurisdiction licensing authority.” Clearly, the burden is on the motorist to provide the evidence of compliance necessary to end the suspension. Reading K.S.A. 8-1219 and 8-1474 together, the legislative intent, consistent with the purposes of the Compact, is that the period of suspension in Compact cases shall be specifically designated as running from the date of suspension until satisfactory evidence of compliance is presented. The period of suspension imposed by the division of motor vehicles herein was clearly within its statutory authority, and the trial court erred in holding otherwise.
The State’s appeal on the question reserved is sustained. The State’s appeal from the judgment of acquittal is denied for lack of jurisdiction. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Ramon Garcia, appeals his convictions by a jury of one count of aiding and abetting felony murder, K.S.A. 21-3401, and one count of aiding and abetting burglary, K.S.A. 21-3715. The defendant was sentenced to a controlling term of life imprisonment.
Cecil E. Bammes was found dead on his farm near Wamego, Kansas, on Sunday, May 18, 1986. A neighbor of Bammes’ had heard four to five gunshots shortly after 5:45 p.m. on Friday, May 16, 1986. Bammes had been killed by two .22 caliber gunshot wounds to the head, and he was found lying face down in the yard near his pickup truck.
Both the truck and Bammes’ body were within the yard of his house. The yard was fenced and enclosed and there was some evidence introduced at trial that the victim habitually kept the gate to the yard closed. A photograph taken by one of the investigating law enforcement officers who arrived on the scene on May 21, 1986, shows the driver’s side door of the victim’s pickup truck standing open. The officer testified that the pictures were an accurate representation of the existing scene when he first arrived. The officer also stated that he had found the yard gate open and the house door open which, he testified, was unusual for the Bammes farm. Earl Bammes, the victim’s brother, checked the victim’s house after the homicide and found that a .22 caliber rifle and a radio were missing.
At the defendant’s trial, Joe Cueva testified that, several weeks before Bammes’ death, he had spoken with the defendant at a party in Topeka. Cueva testified that the defendant had told him he wanted to “rob” a place in Wamego because he believed there was a substantial amount of money there. Defendant told Cueva that the place he wished to “rob” belonged to an elderly person for whom defendant had worked in the past. Cueva, however, declined the defendant’s invitation to join him.
On the morning of Friday, May 16, 1986, Ramon Garcia, Michael Rodriguez, Victor Martinez, and two other variously identified Mexican males stopped at the Topeka residence of Lyle Cobler. Testifying at the trial, Cobler identified the two Mexican males from an FBI circular as Jesus (“Chango”) Hernandez and Chayo Gonzales Garcia. Cobler testified that defendant Garcia and the four others stayed for approximately 35 to 40 minutes. They then left in defendant’s white 1972 or 1973 four-door Chevrolet Impala. Cobler then went to get some cigarettes, returning 45 minutes to an hour later to discover that his home had been broken into and his .22 caliber revolver had been stolen.
The defendant was first questioned by the police on Wednesday, May 21, 1986. Kirk Thompson, a special agent of the Kansas Bureau of Investigation, testified that he interrogated the defendant on Wednesday afternoon. Thompson testified that the defendant originally told him that he had not been in the Wamego area for about a month and a half. The defendant told Thompson that he had not left the Topeka area the previous weekend and did not know anything about the incident under investigation. However, after further questioning, the defendant later acknowledged that he went for a drive in the country on Friday, along with Rodriguez, Martinez, and two Mexican males from Kansas City.
Later in the interview, defendant told Thompson that he had stopped at the Bammes farm and parked his car near the driveway. Thompson testified that defendant told him that the two Mexican males and Victor Martinez had left the car for a short time and then returned; defendant then drove all of the men back to Topeka. Defendant said that he had not heard any shots while he was at the Bammes farm. Finally, after additional questioning, defendant stated that he did hear one or two shots while parked at the Bammes farm. Defendant told Thompson that when the three men returned to the car, he saw a bulge, which he thought was a gun, in the pocket of one of the Mexican males.
Defendant was interrogated the following morning by Gerald Schmidt, an investigator for the Pottawatomie County Sheriff s Department. During the course of the interrogation, Schmidt told the defendant that he did not believe defendant’s story about coincidentally stopping at the Bammes farm, and asked the defendant, “Did you go there with the intention of robbing [him], or did you go there with the intention of killing him?” Defendant replied that he did not go there to kill him but that he went there to “rob” the house.
Michael Rodriguez testified that he slept most of the time during the ride out to the Bammes farm on Friday, May 16. Rodriguez testified that the defendant told him during the trip out to the farm that they were going there to buy a goat. He testified that after they arrived at the farm, Martinez and the two Mexican males left the car. After a few minutes, Rodriguez heard one gunshot followed by two more gunshots one to two minutes later. Rodriguez asked the defendant, “Did you hear that shot?” Defendant told Rodriguez, “They probably shot that man.” When the three men returned to the car, Rodriguez saw that one of the Mexican males was carrying a large, long object under a blanket.
Joe Cueva testified that he saw the defendant and the others in defendant’s car at a Topeka club between 8:00 and 10:00 p.m. on the evening of May 16, 1986. Cueva approached the car and spoke for a brief time with the group. Cueva testified that, while he was talking to them, he noticed two rifles laying on the floor of the car. Cueva also saw that one of the Mexican males, whom he identified at trial from an FBI circular as Chayo Garcia, had a .22 caliber revolver tucked in his pants. Cueva testified that the revolver was the same one he had previously seen at Lyle Cobler’s Topeka residence.
Alfonso Hluz testified that he saw the defendant on the afternoon of Saturday, May 17, 1986. Defendant asked Hluz if he wanted to buy a rifle. When Hluz agreed, the defendant sold him a .22 caliber rifle for $15.00. The rifle was introduced into evidence as Exhibit 19.
The information as originally filed by the State on June 26, 1986, charged the defendant as a principal; however, on August 20, 1986, an amended information was filed, adding the aiding and abetting language to each count. The trial court granted the defendant’s motion for acquittal as to the aggravated robbery count, and the jury found the defendant guilty of murder in the first degree and burglary, both as an aider and abettor. The defendant was sentenced to three to ten years for burglary and life imprisonment for the murder, the sentences to run concurrently.
Defendant first argues that Count 1 of the amended information does not charge the crime of felony murder because of the inclusion of the aiding and abetting language. He correctly notes that, under Kansas law, a person who counsels, aids, or abets in the commission of a crime may be charged and convicted as if he were a principal. State v. Goering, 225 Kan. 755, 758, 594 P.2d 194 (1979). However, while the aiding and abetting language was not required to charge the defendant with aiding and abetting the felony murder, it does not follow that the State is precluded from doing so, or that the inclusion of such language renders the information fatally defective. We are not aware of any Kansas appellate case, nor has one been cited by the defendant, that holds the inclusion of aiding and abetting language in the information renders it defective. In People v. Smith, 271 Mich. 553, 260 N.W. 911 (1935), the Michigan Supreme Court rejected such a conclusion and held that an information charging the defendant with aiding and abetting the commission of the offense of obtaining property by false pretenses was sufficient under the statute providing for prosecution of aiders and abettors as if he had directly committed the offense. The court reasoned:
“In the case at bar defendant was not injured by the particularity with which the offense was set forth in the amended information. It charged fully and particularly that one Guy Vanderwest had obtained money and property by false representations and pretenses, the manner in which he obtained them, and the means used; and it charged the defendant with aiding and abetting said Guy Vanderwest and, knowing the representations of said Guy Vanderwest to be false .... And in the charging part of the information, it charged the defendant with counseling, procuring, aiding, and abetting Guy Vanderwest in obtaining goods and property from Howard M. Rouse and Mary Rouse by false representations and pretenses.
“We think the information was good under the statute, that defendant was not injured by the particularity with which the offense was charged; but, on the other hand, we commend the prosecution for setting forth the facts more clearly than is made necessary by the statute which provides that every person concerned in the commission of an offense may be charged as a principal.” 271 Mich, at 561-62.
See People v. Marshall, 132 Cal. App. 2d 18, 281 P.2d 260 (1955). In the present case, the inclusion of the aiding and abetting language further clarifies the charges made against the defendant and does not render the information defective.
The defendant also argues that the amended information is defective in that it did not allege that the defendant killed Cecil Bammes or that there was a killing. Defendant claims such omission renders the information fatally defective because it omits an essential element of first-degree murder. The aggravated robbery count, of which the defendant was acquitted, did state that Cecil Bammes was killed during the course of the robbery. However, since the State did not attempt to incorporate by reference the allegations of Count 2 into Count 1, the State cannot rely on the allegation in Count 2 to cure a defect in Count 1. See State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986). We agree that the information must allege each essential element of the offense charged, and a conviction based upon an information which fails to do so is void. State v. Micheaux, 242 Kan. 192, 196, 747 P.2d 784 (1987); State v. Bird, 238 Kan. 160, 708 P.2d 946 (1985). We do not, however, find that Count 1 is defective. While we agree with the defendant that the information does not separately and explicitly state that Bammes died, the information does state that the defendant did “unlawfully, willfully and feloniously . . . intentionally counsel, aid, abet or procure two Mexican males ... to kill and murder a certain human being, namely: Cecil E. Bammes, by shooting him in the head with a small caliber pistol or revolver, believed to be an R&G .22 caliber blue steel revolver, . . . said crime defined as MURDER IN THE FIRST DEGREE.” Although we have held that an information which charges an offense in the language of the statute is sufficient, the exact statutory words need not be used if the meaning is clear. State v. Micheaux, 242 Kan. at 197; State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). In Micheaux, we said:
“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. . . .
“. . . 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.” 242 Kan. at 197-99.
We conclude upon a careful reading of the information that the crime of felony murder was sufficiently charged in Count 1.
The defendant next contends that the district court erred in permitting the State to amend Count 3 of the amended information, which permitted the jury to find the defendant guilty of burglary if it found a burglary of either the house or the pickup truck.
The victim’s body was found lying face down in his yard near his pickup truck. After the State finished the presentation of its evidence, the court permitted the State to amend the amended information by adding the term “or pickup truck” to Count 3. Thus, after the amendment, defendant was charged with burglarizing “the farm house or pickup truck of Cecil E. Bammes.” Burglary was one of two underlying felonies alleged in Count 1, which was the felony-murder charge. Defendant contends that there was insufficient evidence to convict him of a burglary of the pickup truck, and, because there is an uncertainty as to whether the jury in its general verdict found him guilty of burglarizing the house or the pickup truck, his conviction for burglary and felony murder must be reversed.
The State argues that it is unnecessary to determine whether the defendant’s felony-murder conviction rests upon the burglary of the house or the burglary of the pickup truck. The State cites People v. Guffie, 749 P.2d 976 (Colo. App. 1987), in support of its argument. In Guffie, the defendant contended that his conviction for felony murder could not stand, since the jury had returned only a general verdict of guilty and did not specify which of the two possible robbery victims it concluded he had in fact robbed. The Colorado Court of Appeals upheld the conviction, stating:
“Unanimity in a verdict means only that each juror agrees that each element of the crime charged has been proven to that juror’s satisfaction beyond a reasonable doubt. Jurors are not required to agree on what particular evidence is probative on a specific element of a crime, particularly if the evidence supports alternative theories of how that element occurred. [Citation omitted.]
“. . . Hence, the felony element of felony murder may be satisfied by a showing that the decedent was killed during the commission of an aggravated robbery of one of several alternative victims. It is therefore not necessary that jury members unanimously agree on the specific victim of the underlying felony in convicting a defendant of felony murder, provided each juror is convinced beyond a reasonable doubt of the aggravated robbery of any one or more of the alternative victims.” 749 P.2d at 979-80.
The State’s reliance upon Guffie is misplaced. Guffie simply stands for the proposition that, where there is sufficient evidence to support two or more alternative felony theories, a jury need not designate which felony theory it is relying upon in convicting the defendant for felony murder. The Guffie court expressly found that there was sufficient evidence to support a conviction of the defendant for the robbery of either of the two alternative victims:
“Here, sufficient evidence was presented from which the jury could have found that defendant killed the homicide victim while robbing him or assisting in his robbery; there was also sufficient evidence that defendant robbed or assisted in the robbery of both the second victim and his girlfriend. The jury was properly instructed on complicity. Because there was sufficient evidence of alternative means of committing felony murder, jury unanimity as to the identity of an aggravated robbery victim of the underlying felony was not required.” Guffie, 749 P.2d at 980.
The rule stated in Guffie has no application where one of the alternative felony theories is invalid, either on constitutional grounds or for a lack of sufficient evidence to support an independent conviction of the defendant on one of the felony theories.
In State v. Green, 94 Wash. 2d 216, 616 P.2d 628 (1980), the defendant was convicted of aggravated first-degree murder “in the course of or in furtherance of rape in the first degree or kidnapping in the first degree.” 94 Wash. 2d at 230. After concluding that there was insufficient evidence to support a conviction of the defendant for kidnapping, the Wáshington Supreme Court held that the murder conviction could not stand, and remanded the case for a new trial. Since there was insufficient evidence to support one of the felony theories upon which the murder conviction was based, the murder conviction could not stand.
“In the instant case, the jury instructions and verdict form did not require the jury to unanimously find appellant committed or attempted to commit either first degree kidnapping or rape or both. As instructed, it was possible for the jury to have convicted Green with six jurors resting their belief of guilt upon kidnapping and the other six resting their belief upon rape. Thus, it is impossible to know whether the jury unanimously decided that the element of rape had been established beyond a reasonable doubt.” 94 Wash. 2d at 233.
In Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), the United States Supreme Court recognized that a general verdict of guilty could not stand if the jury relied upon two or more independent grounds, one of which was insufficient. In Stromberg, the appellant was convicted of violating a California penal statute which condemned the display of a flag for any one of three purposes. The jury was instructed:
“ ‘Proof, beyond a reasonable doubt, of any one or more of the three purposes alleged in said information is sufficient to justify a verdict of guilty under count one of said information.’ ” 283 U.S. at 364.
The United States Supreme Court set aside the appellant’s conviction, stating:
“We are unable to agree with this disposition of the case. The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. . . .
“. . .The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” 283 U.S. at 367-70.
In Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), the United States Supreme Court discussed the rule of Stromberg:
“One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury’s decision rested. See, e.g., Williams v. North Carolina, 317 U.S. 287 [, 292, 87 L. Ed. 279, 63 S. Ct. 207] (1942); Cramer v. United States, 325 U.S. 1, 36, n 45 [, 89 L. Ed. 1441, 65 S. Ct. 918] (1945); Terminiello v. Chicago, 337 U.S. 1, 5-6 [, 93 L. Ed. 1131, 69 S. Ct. 894] (1949); Yates v. United States, 354 U.S. 298, 311-312 [, 1 L. Ed. 2d 1356, 77 S. Ct. 1064] (1957).” 462 U.S. at 881.
The State responds by contending, in essence, that the house and pickup truck were within the same curtilage; further, that theft was an element of the burglary and, since Kansas follows the “single impulse larceny theory,” there could be only one theft, hence only one burglary. Simply stated, the State contends this was one continuous act of burglary and, while the evidence might or might not be sufficient to support a conviction of burglary of the pickup truck alone, there was sufficient evidence to support “that one or both of the house and/or pickup truck, both within the curtilage of the Bammes farmstead, was in fact burglarized.” If the State’s argument is to prevail, it must find support in K.S.A. 21-3715, which provides:
“Burglary. Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.”
The word “curtilage” does not appear in the statute; however, building and motor vehicle are specifically included. In State v. Fisher, 232 Kan. 760, 658 P.2d 1021 (1983), this court rejected the State’s argument that anything capable of being constructed is a structure and hence legally capable of being burglarized. In Fisher, we held that hog pens enclosed by a fence were not included in the “or other structure” language of K.S.A. 21-3715. In so holding, Justice McFarland speaking for a unanimous court, said:
“The hog pens in question are essentially small areas enclosed by three-foot-high fences. Obviously, the only persons to whom such low sides would constitute actual physical barriers are young children. The applicable rules of statutory construction do not support the inclusion of fenced areas such as these hog pens within the term ‘structure’ as used in K.S.A. 21-3715.
“It is a fundamental rule penal statutes must be strictly construed in favor of the persons sought to be subjected to their operation. The rule of strict construction simply means ordinary words are to be given their ordinary meanings. Such a statute should not be read so as to add to or to subtract from that which is readily found therein. State v. Conner, 4 Kan. App. 2d 207, 209, 603 P.2d 1038 (1979), rev. denied 227 Kan. 927 (1980); State v. Floyd, 218 Kan. 764, 766, 544 P.2d 1380 (1976); Esters v. State, 1 Kan. App. 2d 503, Syl. ¶ 3, 571 P.2d 32 (1977).” 232 Kan. at 761-62.
“It is quite clear that an otherwise open area enclosed by a low fence is not a structure within the meaning of the criminal trespass statute, K.S.A. 21-3721. The crimes of burglary and criminal trespass are, of course, closely related. This relationship was discussed in [State v.] Williams [, 220 Kan. 610, 556 P.2d 184 (1976),] as follows:
“ ‘In the Kansas criminal trespass statute the properties sought to be protected are land, structures, vehicles, aircraft or watercraft. Except for land these are some of the same properties named in the Kansas burglary statute. Both statutes relate to a knowing and unauthorized entry or remaining within the properties. However, the burglary statute has for its purpose the protection of the property and the occupants from a felony or theft therein, while the trespass statute has for its purpose merely a restriction against the unauthorized entry or remaining within the property.’ 220 Kan. at 613-14.
“It would be rather incongruous if such a three-foot-high fenced enclosure were to be held a structure for purposes of the burglary statute when the same is clearly not a structure for purposes of the criminal trespass statute.
“No Kansas cases have been found where penetration of low-fenced enclosures, such as the hog pens herein, have been held to constitute burglary. The following are examples of the traditional type of buildings and structures which have previously been held to have been capable of being burglarized: a granary, which has a floor, door and roof, State v. Groning, 33 Kan. 18, 5 Pac. 446 (1885); State v. Martin, 223 Kan. 78, 573 P.2d 576 (1977); a buggy house, State v. Garrison, 52 Kan. 180, 34 Pac. 751 (1893); a chicken house, which has walls, doors and a roof, State v. Poole, 65 Kan. 713, 70 Pac. 637 (1902); a cave which has a door attached to it and is used for the storage of vegetables and victuals, State v. Sanders, 81 Kan. 836, 106 Pac. 1029 (1910); and a movable freight car, State v. Mooney, 93 Kan. 353, 144 Pac. 228 (1914).” 232 Kan. at 763.
We find no merit to the State’s argument and conclude that, under the facts of the present case, a burglary of the pickup truck and the house were separate offenses. We must therefore determine if there is sufficient evidence to support a conviction of the defendant for burglarizing the pickup truck.
The standard in determining the sufficiency of the evidence in a criminal case is whether the evidence, “viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Van Cleave, 239 Kan. 117, 121, 716 P.2d 580 (1986). In the present case, the only evidence supporting a finding that the pickup truck had been burglarized is the photograph of the open door to the pickup truck. As the district court noted, this only proved the door was open when the picture was taken. There is no evidence that anything was removed from the pickup truck, or that it had been touched or tampered with in any way. The victim’s brother, Earl Bammes, testified that his brother always carried a rifle in the pickup truck. However, Elmer Bammes, Cecil’s nephew, also testified that the only time he rode in Cecil’s pickup truck, he did not see a rifle or a rifle rack. No rifle was found in the pickup truck after the discovery of the body. However, Earl and Elmer testified as part of a proffer to the court in chambers, and not in open court. No evidence was presented to the jury of any property missing from the truck. Viewed in the light most favorable to the prosecution, the evidence is not such that a rational factfinder could have found beyond a reasonable doubt that the pickup truck had been burglarized.
Since one of the two alternative burglary theories advanced by the State is not supported by sufficient evidence, the defendant’s conviction for burglary and his conviction for felony murder based upon that burglary must be reversed. Although our decision is dispositive of this appeal, and this case must be remanded for a new trial, other issues raised in this appeal may be raised in the second trial. For that reason, we will consider some of those issues at this time.
The defendant argues that it was fundamentally unfair and a violation of due process of law to apply the principles of criminal liability expressed in the aiding and abetting statute in combination with felony murder. Defendant contends it is unjust to combine the concepts of aiding and abetting with felony murder.
The defendant presents no support for his argument other than a citation to cases which merely state the general rule that the independent actions of one conspirator, which are not the natural and probable outcome of the common design of the conspiracy and outside its common purpose, are not chargeable to the other members of the conspiracy. See State v. Keleher, 74 Kan. 631, 87 Pac. 738 (1906); State v. Furney, 41 Kan. 115, 21 Pac. 213 (1889). Nothing in either case suggests that a person who intentionally aids, abets, advises, hires, counsels, or procures another to commit a felony inherently dangerous to human life is not guilty of felony murder when a death occurs during the commission of that felony. Indeed, the position advanced by the defendant is inconsistent with the recent decision of this court in State v. Dunn, 243 Kan. 414, 758 P.2d 718 (1988). In Dunn, this court affirmed the defendant’s felony-murder convictions, which were based upon her intentionally aiding and abetting the commission of the underlying felonies. The court stated:
“A person is criminally responsible for the crimes of others if that person intentionally aids and abets the others in the commission of the crime. K.S.A. 21-3205. The element of intent necessary in aiding and abetting may be inferred from circumstantial evidence. State v. Goering, 225 Kan. 755, 758, 594 P.2d 194 (1979). Here, Dunn was present at the crime scene and there was evidence that she acted in furtherance of the offense. The jury concluded that Dunn was a knowing participant in the crimes of aggravated robbery and/or aggravated kidnapping. This felonious intent is sufficient for conviction of felony murder.” 243 Kan. at 431.
Next, the defendant argues that the trial court erred in refusing to suppress evidence of the extrajudicial statements he made to law enforcement officers. The defendant asserts two grounds for excluding evidence of his extrajudicial statements. First, he contends that the State has failed to establish that the statements were voluntarily made, or made in compliance with K.S.A. 75-4351. That statute provides in part:
“A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English ....
“(e) when such person is arrested for an alleged violation of a criminal law of the state or any city ordinance. Such appointment shall be made prior to any attempt to interrogate or take a statement from such persons.”
The evidence in the record indicates that the district court did not err in concluding that the defendant’s statements were voluntarily and understandingly made. Agent Thompson testified that, while he interrogated the defendant at a slower pace than normal, defendant gave very specific answers to specific questions during the interrogation. Investigator Schmidt testified that he at no time had any difficulty in communicating with the defendant. While Schmidt also spoke to the defendant slowly, he testified that he had no problems conversing with him. Another law enforcement officer also testified that he had no special problem in communicating in English with the defendant. In State v. Zuniga, 237 Kan. 788, 703 P.2d 805 (1985), this court stated:
“The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear communication between one who is in custody and the officers who are questioning him. The statute does not state a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the statement, the trial court must still determine whether an in-custody statement was freely, voluntarily and knowingly given, with knowledge of the Miranda rights. That determination must be based upon the totality of the circumstances. In State v. Newfield, 229 Kan. 347, 357, 623 P.2d 1349 (1981), we said:
“ ‘In determining the voluntariness of a confession, it is to be viewed in light of the totality of circumstances, including the following factors: (1) The duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. Essential to the inquiry is the determination that the statement was the product of the free and independent will of the accused. If the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.. State v. Prince, 227 Kan. 137, 144, 605 P.2d 563 (1980); State v. Watkins, 219 Kan. 81, 97, 547 P.2d 810 (1976); State v. Creekmore, 208 Kan. at 934. The burden of proving the statement was voluntary rests with the State. State v. Kanive, 221 Kan. at 35.’ ” 237 Kan. at 791-92.
The trial court, in the present case, as in Zuniga, after conducting a full hearing on the issue, concluded that the statements given by the defendant to law enforcement officers were freely, voluntarily, and knowingly given. The evidence in the record does not support a conclusion that the trial court abused its discretion in refusing to suppress the defendant’s extrajudicial statements.
The defendant also argues that the trial court erred in failing to suppress his statement to Investigator Schmidt that defendant had gone to the Bammes farm to “rob” the house. During the interrogation on the morning of May 22, 1986, Investigator Schmidt told defendant that he did not believe his story. Schmidt asked the defendant whether he had gone to the Bammes farm to kill Bammes or to rob him. Defendant replied that he had not gone to the farm to kill Bammes, but to “rob” the house.
The defendant contends that his statement should have been suppressed as an involuntary reaction to improper tactics by the interrogator. However, there is nothing in the record to indicate that Schmidt’s question was unfair or that it deprived defendant of the ability to freely, voluntarily, and knowingly respond.
Finally, the defendant contends that the district court abused its discretion in admitting into evidence State’s Exhibit 19, a .22 caliber semi-automatic rifle. The defendant contends that there was insufficient evidence to establish that Exhibit 19, the rifle purchased by Hluz, was the .22 caliber rifle taken from the Bammes farm. The defendant also contends that the prejudicial effect of the rifle’s presence in the courtroom outweighed any probative value it may have had.
The general rules relating to the introduction into evidence of physical objects were discussed in State v. Nicholson, 225 Kan. 418, 590 P.2d 1069 (1979):
“The admissibility of physical evidence lies within the sound discretion of the trial court and is to be determined on the basis of its relevance in connection with the accused and the crime charged. State v. Nemechek, 223 Kan. 766, 769, 576 P.2d 682 (1978); State v. Smallwood, 223 Kan. 320, Syl. ¶ 3, 574 P.2d 1361 (1978) and cases cited therein. See also State v. Treadwell, 223 Kan. 577, 579, 575 P.2d 550 (1978). Moreover, relevant evidence is defined under K.S.A. 60-40l(fe) as evidence having any tendency in reason to prove any material fact. The determination of relevancy is a matter of logic and experience, not a matter of law. State v. Nemechek, 223 Kan. at 769-770; see also State v. Alderdice, 221 Kan. 684, 689, 561 P.2d 845 (1977); State v. Faulkner, 220 Kan. 153, 155, 551 P.2d 1247 (1976). 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. State v. Boone, 220 Kan. 771, Syl. ¶ 3, 556 P.2d 880 (1976).” 225 Kan. at 419-20.
In the present case, the victim’s brother testified that Exhibit 19 was “just like” one of the rifles his brother had owned. The defendant had sold Exhibit 19 to Hluz the day after the alleged burglary. Michael Rodriguez testified that when the two variously identified Mexican males returned from the Bammes house on the evening of May 16, one of them was carrying a large, long object under a blanket. Joe Cueva testified that when he saw the defendant’s car on the evening of May 16, there were two rifles on the floor of the car. The evidence was relevant, and the defendant’s objection goes to the weight and not the admissibility of Exhibit 19. The district court did not err in admitting Exhibit 19 into evidence.
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Per Curiam:
This is an original proceeding in discipline filed by Bruce E. Miller, disciplinary administrator, against Bradley J. Smoot, of Lawrence, an attorney duly admitted to the practice of law in Kansas.
The facts are not in dispute.
The respondent, Bradley J. Smoot, pled guilty on September 30, 1986, in the United States District Court for the District of Kansas to one count of possession of approximately one gram of cocaine, in violation of 21 U.S.C. § 844 (1982). On November 25, 1986, the United States District Court sentenced the respondent to a term of imprisonment of one year. The sentence was suspended upon the condition that the respondent “be confined in a jail-type or treatment institution” for a period of four months, and the respondent was placed on probation for two years. As an additional condition, the respondent was ordered to participate in a program for drug abuse which may include drug testing at the direction of the United States Probation Office. Possession of cocaine, under 21 U.S.C. § 844, is a misdemeanor. Under Kansas law, possession of cocaine is a class C felony. K.S.A. 65-4127a.
A formal complaint was filed by the disciplinary administrator against the respondent on March 30, 1987. A hearing was held before the Kansas Board for Discipline of Attorneys on August 18, 1987. At the time of the hearing, the respondent had previously served his four-month term in a federal detention facility, and was on probation. The hearing panel made the following additional findings of fact:
“The Respondent voluntarily removed himself from the practice of law in October of 1986 and had not practiced since and is now working for a real estate development company.
“Admitted into evidence were numerous testimonials of the Respondent’s good reputation in the community and his competent, conscientious and professional legal ability.
“There was no question raised in these proceedings of the Respondent’s competence to practice law or that his professional conduct had ever been influenced by his use of narcotics.
“There was ample evidence of Respondent’s full cooperation with' the Disciplinary Administrator’s office in these proceedings, his remorse for his actions, and apologies for his conduct.
“As part of the requirements of his probation, he is involved in community volunteer service work once a week.
“There was no question but that Respondent’s possession of cocaine was for anything but for personal use.”
The panel, however, was divided in its conclusions and recommendation to this court. Two members of the hearing panel found there was clear and convincing evidence that the respondent’s actions were prejudicial to the administration of justice and, therefore, had violated DR 1-102(A)(5) (1987 Kan. Ct. R. Annot. 123), but concluded his conduct did not reflect adversely upon his ability to practice law, nor did his conduct reflect a moral turpitude making him unworthy to practice. They therefore recommended that respondent be publicly censured and be required, if feasible, to perform pro bono legal service in his community for a limited time. The third member of the hearing panel concluded that respondent had violated DR 1-102(A)(3) and (6) (1987 Kan. Ct. R. Annot. 123), and recommended that the respondent’s license to practice law be suspended indefinitely. Respondent elected not to file exceptions to the panel’s Final Hearing Report.
The court, after carefully reviewing the record, concurs with the conclusions and recommendation of the majority report of the panel.
It Is Therefore Ordered and Adjudged that Bradley J. Smoot be and he is hereby disciplined by public censure and that he perform 100 hours of pro bono legal service which shall be completed by January 1, 1989.
It Is Further Ordered that the respondent shall be under the supervision of the disciplinary administrator, who shall approve the pro bono legal services to be performed and verify the respondent’s compliance with this order.
It Is Further Ordered that this order of public censure shall be published in the official Kansas Reports and that respondent shall pay the costs of this action.
Miller, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by Robert Earl Davis following his conviction of rape (K.S.A. 21-3502), aggravated robbery (K.S.A. 21-3427), and aggravated assault (K.S.A. 21-3410). The primary issue raised on the appeal involves the interpretation of a section of the Kansas Juvenile Offenders Code adopted by the 1982 Kansas legislature.
The facts in the case are essentially undisputed and are as follows: During the months of January and February, 1983, defendant Davis was involved in assaults on three different women. Each of the assaults occurred in an area near the Kansas University campus in Lawrence. In each instance, defendant threatened his victim with a knife and proceeded either to take her property or to compel her to have sexual relations. On February 11,1983, four days after the last offense, defendant was stopped by a Kansas University police officer in the area where the three attacks had occurred. Defendant fit the physical description of the assailant given by the victims. He was wearing similar clothing and carried a knife which matched the description given by the victims. Defendant was taken to the Law Enforcement Center for questioning and, after being advised of his Miranda rights, voluntarily waived them and admitted to attacking the three young women. Defendant was arrested and, since defendant was sixteen (16) years of age, a juvenile offender complaint was filed against him. The complaint charged five counts, all of which would be felonies if committed by an adult.
On February 18, 1983, following a detention hearing, the district attorney filed a motion for authorization to prosecute defendant as an adult pursuant to K.S.A. 1982 Supp. 38-1636 which provides as follows:
“38-1636. Authorization for prosecution as an adult, (a) At any time after commencement of proceedings under this code against a respondent who was 16 or more years of age at the time of the offense alleged in the complaint and prior to entry of an adjudication or the beginning of an evidentiary hearing at which the court may enter adjudication as provided in K.S.A. 1982 Supp. 38-1655, the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute.
“(b) The motion may also contain a statement that the prosecuting attorney will introduce evidence of the offenses alleged in the complaint and request that, on hearing the motion and authorizing prosecution as an adult under this code, the court may make the findings required in a preliminary examination provided for in K.S.A. 22-2902 and amendments thereto and the finding that there is no necessity for further preliminary examination.
“(c) Upon receiving a motion to authorize prosecution as an adult, the court shall set a time and place for hearing on the motion. The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent. The motion shall be heard and determined prior to any further proceedings on the complaint.
“(d) If the respondent fails to appear for hearing on a motion to authorize prosecution as an adult after having been properly served with notice of the hearing, the court may hear and determine the motion in the absence of the respondent. If the court is unable to obtain service of process and give notice of the hearing, the court may hear and determine the motion in the absence of the respondent after having given notice of the hearing once a week for two consecutive weeks in a newspaper authorized to publish legal notices in the county where the hearing will be held.
“(e) In determining whether or not prosecution as an adult should be authorized, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution of an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent;' (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue. Subject to the provisions of K.S.A. 1982 Supp. 38-1653, written reports and other materials relating to the respondent’s mental, physical, educational and social history may be considered by the court.
“(f) The court may authorize prosecution as an adult upon completion of the hearing if the court finds that the respondent was 16 or more years of age at the time of the alleged commission of the offense and that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged. In that case, the court shall direct the respondent be prosecuted under the applicable criminal statute and that the proceedings filed under this code be dismissed.
“(g) If the respondent is present in court and the court also finds from the evidence that it appears a felony has been committed and that there is probable cause to believe the felony has been committed by the respondent, the court may direct that there is no necessity for further preliminary examination on the charges as provided for in K.S.A. 22-2902 and amendments thereto. In that case, the court shall order the respondent bound over to the district judge or associate district judge having jurisdiction to try the case.
“(h) If the respondent is convicted, the authorization for prosecution as an adult may attach and apply to any future acts by the respondent which are or would be cognizable under this code if the order of the court so provides.” (Emphasis supplied.)
The motion contained the statement that the prosecuting attorney would present evidence of the offenses alleged in the complaint and requested that, on hearing the motion and authorizing prosecution as an adult under the code, the court make the findings required in a preliminary hearing as provided for in K.S.A. 22-2902 and direct that there is no necessity for further preliminary examination on the charges and order defendant bound over to the district court having jurisdiction to try the case. The waiver hearing was set for March 10, 1983.
Prior to the waiver hearing, defendant moved to limit the evidence at the waiver hearing solely to his status as a juvenile or an adult. The court ruled that it did not have the right to deny the' prosecution an opportunity to present evidence concerning the offenses at the waiver hearing, and defendant’s motion to limit evidence was denied. The waiver hearing was then held on March 10 and 11, 1983. Thirteen witnesses testified, including the three female victims who testified as to the manner in which the alleged offenses were committed. Other witnesses testified as to the defendant’s basic life style and activities. A clinical psychologist gave his opinion that defendant was a danger to himself and especially to society and that a minimum of six years treatment would be needed for his rehabilitation. A member of the staff of the Youth Center of Topeka testified that that facility was not totally secure and that the average stay at the Youth Center was two and one-half years. It also appeared from the testimony that defendant had a prior adjudication for burglary and that he had been released from his probation on February 10, 1983, shortly after the three offenses were committed, but before it was determined that defendant was involved.
At the conclusion of the evidence, the court stated its findings as to each of the eight statutory factors set forth in K.S.A. 1982 Supp. 38-1636(e). It found that there was substantial evidence to support the prosecution of Robert Earl Davis as an adult. The court then ordered the State to continue the proceedings as adult proceedings. The State thereupon renewed its request (1) that the court find that there had been sufficient evidence provided to establish probable cause, and (2) that the court direct that there was no need for further preliminary examination on the charges. The court held that sufficient evidence had been presented to show probable cause and that the waiver proceeding would serve as the preliminary hearing, and there was “not a necessity for further preliminary examination on the charges.” Thereafter, defendant entered a plea of nolo contendere to one count each of rape, aggravated robbery, and aggravated assault. The defendant has only appealed from the order authorizing his prosecution as an adult entered pursuant to K.S.A. 1982 Supp. 38-1636.
The first issue raised by defendant on the appeal is that the district court erred by interpreting K.S.A. 1982 Supp. 38-1636 to require the court at the waiver hearing to permit the prosecuting attorney to present evidence of the alleged offenses which would properly be introduced at a preliminary hearing. Stated in an other way, if the prosecutor offers such evidence, must the court permit such evidence at the waiver hearing? The issue presented is one of first impression and requires an interpretation of K.S.A. 1982 Supp. 38-1636. Defendant argues that the language of K.S.A. 1982 Supp. 38-1636(fc) does not make it mandatory for the prosecutor to present evidence in the format of a preliminary examination in order to show the existence of the alleged offense. Defendant maintains that the juvenile court does not have to grant the request nor make the findings required in a preliminary examination, and that the decision to permit the introduction of such evidence and to make the findings as in preliminary examination rests in the sound discretion of the juvenile court. In support of his position, defendant relies on the philosophy of prior decisions of the Kansas appellate courts and argues that presenting such evidence at the waiver hearing is contrary to the construction and purpose of the juvenile code in that it gives undue weight to the offense, and is, therefore, prejudicial to the juvenile.
It is the position of the State that the language of K.S.A. 1982 Supp. 38-1636 is clear and unambiguous. It contends that the statute clearly vests in the prosecutor the discretion whether or not to present evidence of the alleged offenses. The State points out that such evidence is often necessary to prove some of the eight statutory factors which the court must consider in determining the waiver issue, such as whether the offense was committed in an aggressive, violent, premeditated, or willful manner. The State maintains that the statutory provision permitting the waiver hearing to serve as a preliminary examination indicates legislative recognition that it is often necessary to call the same witnesses to show the manner in which the crime occurred as it is to show that the crime occurred. In short, the State argues that the statute clearly provides for prosecutorial discretion as to whether or not to present relevant evidence of the offenses, and judicial discretion to determine whether or not that evidence, if presented, establishes probable cause for prosecutorial purposes.
In support of its position, the State points out that at least the first three of the statutory factors to be considered under K.S.A. 1982 Supp. 38-1636(e) reasonably require evidence of the alleged offenses to the extent of a preliminary examination. The State points out that the new statutory procedure makes it possible to avoid unnecessary delays, relieves both the defendant and the State of the burden of presenting the same evidence twice, reduces the inconvenience to the victims and other witnesses, and frees up much-needed court time.
We have considered the language of K.S.A. 1982 Supp. 38-1636 and the contentions of the parties and have concluded that the trial court did not err in interpreting the statute to require the court at the waiver hearing to permit the prosecuting attorney to present any relevant evidence of the offenses alleged in the complaint which could properly be offered at a preliminary hearing. In conducting the waiver hearing, a trial court has a broad judicial discretion to conduct the hearing as the circumstances of the case may require. In its sound discretion, the court may close certain portions of the hearing and open other portions. This was the procedure followed by the trial court in the case now before us. We agree with the State that it lies within the discretion of the prosecutor whether to present evidence of the alleged offenses at the waiver hearing. The prosecutor also has the discretion whether to request the court to make the findings required in a preliminary examination by K.S.A. 22-2902 and the finding that there is no necessity for a further preliminary examination. The court must then act judicially to determine whether it should consider the evidence as probative only on the issue of waiver or for the purpose of establishing probable cause. We find no error in the ruling of the trial court in this regard.
The defendant’s second point on the appeal is that the trial court erred in finding that the defendant should be prosecuted as an adult because there was no substantial evidence to support that finding. The record discloses that the trial court listened to the testimony of thirteen witnesses over a period of two days. At the conclusion of the hearing, the trial court entered its decision setting forth in the record its comprehensive findings as to each of the eight statutory factors. There was substantial competent evidence to support the findings of the trial court (1) that the offenses were serious and committed in an aggressive and violent manner against the persons of others; (2) that the defendant was on probation for burglary at the time the offenses were committed; (3) that the defendant had maturity and the ability to act in a socially acceptable manner; (4) that existing juvenile facilities could not treat and rehabilitate the defendant prior to the expiration of the court’s jurisdiction under the juvenile code; and (5) that the interests of the community would be better served by criminal prosecution. We hold there was substantial evidence to support the findings of the trial court that defendant should be prosecuted as an adult.
The defendant’s final contention is that the trial court erred in permitting the prosecutor to ask certain questions on cross-examination of defendant, because they were outside the scope of direct examination. We find no error. The questions asked of defendant by his counsel on direct examination were concerned with defendant’s maturity and life goals. The questions presented by the prosecutor on cross-examination were reasonably relevant in that regard.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.;
Plaintiffs, John Brown, Barbara Brown, and K & L Tank Truck Service, Inc., (plaintiffs), appeal from a judgment rendered in a trial to the court for breach of a written contract. While numerous issues were presented to and decided by the trial court, only two are on appeal: (1) Whether the trial court erred in its construction of the terms of the contract, and (2) whether the trial court erred in its determination of the amount of damages awarded plaintiffs. We find no error in the trial court’s determination of either issue and affirm the judgment.
From 1966 to 1977, defendants Herman and Elizabeth Lang owned K & L Tank Truck Service (K & L), which provided fluid hauling services for the oil industry in and around Garden City. Plaintiffs John and Barbara Brown were friends of the defendants.
Along with Leroy Valentine, defendants Lang also owned Vala Construction and Supplies, Inc. (Vala), a roustabout construction company which sold oil equipment and provided contracting services to area drillers. Vala was incorporated in 1974 and its capital stock was owned 50% by Valentine and 50% by Herman Lang. The articles of incorporation provided each man with a right of first refusal to purchase the other’s stock. If either decided to sell his stock he was required to offer it to the other before selling to an outside party. Lang owned the land occupied by Vala and K & L, which shared offices and used the same yard facilities. Vala paid K & L $750.00 per month for rent and for some bookkeeping services.
In 1976, defendants offered to sell to the Browns the entire K & L operation and their 50% of Vala. On March 24, 1977, the parties signed a contract. The contract conveyed equipment and vehicles used to haul crude oil, fresh water and salt water, other related equipment, a lease for a salt water disposal well, and all of the physical assets of K & L as itemized in the agreement, along with 50% of the capital stock in Vala. The contract ascribed values to each item, placing the value of the Vala stock at $32,500.00. The total purchase price was $300,000.00. After executing this contract, Lang delivered to the designated escrow agent the Vala capital stock. The Browns assumed operation of K & L, which they incorporated, in July, 1977, and began making the specified monthly payments of $2,492.90, which were accepted by the Langs. The Langs ceased participation in the management of K & L and Vala.
At this point a dispute arose between Herman Lang and Leroy Valentine over the transfer of Langs’ stock to the Browns. Valentine thereafter filed suit against the Langs, the Browns, and the escrow agent, seeking to void the sale and transfer of Langs’ Vala stock to the Browns because Valentine had neither waived his right of first option to purchase the stock nor acquiesced in the sale. (Valentine v. Lang, et al, No. 77-C-250 [D.C. Finney County, April 16, 1979].) The trial court agreed with Valentine and voided the transfer óf Vala stock/ The escrow agent returned the stock certificates to defendant Herman Lang. Vala later went into receivership and was dissolved by court order in December, 1979.
On May 31, 1979, plaintiffs filed this suit against the defendants seeking damages for breach of contract. Plaintiffs also sought a judgment construing the purchase price and payment terms defined in the contract which were patently inconsistent.
One of the pretrial issues raised by the parties was the admissibility of parol evidence concerning events and circumstances between the parties leading to execution of the contract in question. Plaintiffs asserted that the contract was clear and unambiguous, requiring no parol evidence for interpretation. Defendants asserted a number of alleged ambiguities which appeared on t-he face of the agreement, warranting consideration of parol evidence to clarify the parties’ intentions. Paragraphs 6 and 7 of the contract state:
“6. Second party agrees to pay to the first party, and the first party agrees to accept as full payment for the sale and transfer of said permit, and for the purchase price of all personal property and the business hereinbefore described as well as the 50% of the capital stock of Vala Construction and Supplies, Inc., the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) which shall be paid in the following manner:
The sum of FIVE THOUSAND DOLLARS ($5,000.00), cash, as earnest money, simultaneously with the execution of this agreement;
The sum of FORTY-FIVE THOUSAND DOLLARS ($45,000.00) on or before the 1st day of July, 1977;
“7. The deferred balance of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), shall be paid in ONE HUNDRED TWENTY (120) equal monthly installments, with interest included at the rate of 7 %% per annum, in the monthly amount of TWENTY-FOUR HUNDRED NINETY-TWO DOLLARS and 90/100 ($2,492.90) and with the first payment thereof being due and payable on the 1st day of September, 1977, with a like installment on the 1st day of each month thereafter until fully paid. The party of the second part shall have full prepayment privileges of any part of the unpaid deferred balance at any prior time without penalty.”
The first alleged ambiguity arises due to the conflict between the stated principal, interest, and installment terms, and the specified monthly payment amount. Monthly payments of $2,492.90 for a term of 120 months would amount to $299,148.00, yielding an effective annual interest rate of only 3.67%, contrary to the rate of 7.5% specified by the contract. By contrast, interest of 7.5% per annum on the deferred balance of $250,000.00 would require either 120 monthly payments of $2,967.54, or payments of $2,492.90 for 158.19 months. Plaintiffs contended that the contract when read from the four corners of the instrument was clear and unambiguous, that the stated monthly payment of $2,492.90 should control and that traditional rules of construction of ambiguous documents did not apply.
The trial court agreed with plaintiffs that the contract needed no parol evidence for interpretation stating:
“[T]he contract, when considered from the four corners of the instrument, is sufficiently clear and unambiguous as to indicate the intent of the parties .... The alleged ambiguities pointed out in the brief of the Defendants are not sufficient, taken in light of the contract read as a whole, to necessitate the use of parol evidence to determine the agreement of the parties.”
After this decision, defendants then moved the court to determine as a matter of law its interpretation of the monetary provisions of the contract. The court found:
“It is the finding of this Court that the Contract of Sale and Assignment, between the parties, executed March 24, 1977, provides for a purchase price of Three hundred thousand dollars ($300,000.00) with the sum of Five thousand dollars ($5,000.00) paid as Earnest Money at the time of the execution of the agreement, the further sum of Forty-five Thousand dollars ($45,000.00) to be paid on or before the first day of July, 1977, and the balance of the purchase price, that being the sum of Two hundred fifty thousand dollars ($250,000.00), to be paid in 120 equal monthly installments, with interest on the balance of the purchase price paid at the rate of 7-lh% per annum.”
After full trial on the issues in this case, including a number of claims which are not contested on appeal, the trial court made twenty-one findings of fact, two of which are relevant to this appeal:
“4. Plaintiffs are entitled to a reduction in the total purchase price of the contract dated March 24, 1977, in the sum of $32,500.00 plus interest, that being the amount agreed to as Defendant’s share of Vala Construction and Supplies, Inc., which Defendants due to prior Court order are unable to deliver to Plaintiffs.
“5. The evidence presented does not support damages on behalf of Plaintiffs for the Defendants’ inability to transfer their share of Vala Construction, other than the price agreed on of $32,500.00. The evidence in this case indicated that Vala Construction was a month-to-month tenant of K & L Tank Truck Service, Inc., and that Plaintiffs have suffered no damage from their failure to obtain 50% of Vala Construction other than the agreed value of 50% of Vala Construction. The action of Defendants in their failure to convey 50% of Vala Construction was due to prior litigation and does not indicate fraud on behalf of the Defendants in their actions concerning Vala Construction.”
Plaintiffs assert error in the court’s interpretation of the monetary provisions of the contract and in its allowance of damages for the breach by defendants in being unable to deliver 50% of the capital stock of Vala. At the outset the defendants assert a jurisdictional challenge to the first point. The trial court, in ruling on pretrial motions, made its determination that the contract was not ambiguous on October 30, 1981, and entered its findings on the monetary aspects of the contract in a journal entry dated January 13, 1982. The trial was held January 25, 1982, and the memorandum decision of the court was not filed until June 11, 1982. Plaintiffs appealed from that decision. Defendants argue that this court has no jurisdiction because the notice of appeal did not specify the order of January 13, 1982. The argument is totally without merit. The court’s October and January orders were merely pretrial rulings governing further proceedings and were specifically referred to in the June 11, 1982, memorandum decision. This court has jurisdiction.
Turning to plaintiffs’ first issue on appeal, they now assert, contrary to their position at trial, that the contract was ambiguous and that certain rules of construction should have been applied. They contend the monthly payment in the contract should control over the other provisions and reach this conclusion by asserting certain rules of construction. We agree with the trial court’s determination and see nothing to be gained here by a discussion of certain well known rules of construction which are only applied when the contract is found to be ambiguous. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 602 P.2d 1299 (1979).
A careful reading of the contract clearly supports the court’s initial findings of no ambiguity when the contract is considered from its four corners and in its entirety. When the intent of the parties to a contract is clearly ascertainable by construing the document from its four corners it is not considered ambiguous; although some terms may be conflicting, extrinsic evidence is inadmissible and rules of construction applicable to ambiguous contracts do not apply. A mere mathematical or typographical error in a contract which does not create such an inconsistency that the overall intent of the parties cannot be determined from the four corners of the instrument does not result in an ambiguous contract. It merely creates an inconsistency subject to interpretation by the court considering the contract as a whole. The contract itself expresses the parties’ agreement to the $250,000 balance with a payment term of 120 months, and an annual interest rate of 7.5%. The only variance with these terms is the monthly payment amount, erroneously stated in the contract to be $2,492.90. Proper computation of the principal, interest and time terms previously set forth requires 120 monthly payments of $2,967.54, a difference of $474.64 per month. Plaintiffs contend the monthly payment terms control the remaining terms. However, such a construction focuses on an isolated provision to the detriment of the contract as a whole. In Clark the court discussed the rules of construction as applied to written contracts and said:
“ ‘In placing a construction on a written instrument reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision. [Citations omitted.] . . .
“ ‘Prior to a resort to extrinsic evidence, the instrument is to be interpreted from its “four corners.” That is to say, all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other portions of the instrument. [Citations omitted.]
“ ‘The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings. [Citations omitted.]’ ” 226 Kan. at 624.
Within the four comers of the contract before us, it is clear the parties agreed on the specific terms defining the installment portion of the contract. There being no ambiguity in this regard, there was no need to resort to parol evidence or rules of construction in order to construe the contract. The error in this instance was simply a mathematical or typographical error in the amount of the monthly payment which was not discovered by either party until long after the contract was executed and acted upon.
The remedy in cases of mutually mistaken computation is not to bind the parties to the erroneous figure, whereby one party inevitably profits at the expense of the other. In an analogous context, that of erroneously adding the prices of a number of items, Professor Corbin has stated the proper approach:
“The mistake in computation may be a truly ‘mutual’ mistake, made by both parties alike. Such a case should cause no difficulty. If the mistake was such as to cause the parties to assent to the terms of agreement, there being no assent to any other terms, the bargain should be set aside, with a proper restitutionary remedy at the suit of the party harmed by the mistake. If, however, the parties had in fact agreed upon the price of each of several items, thereafter making an error of addition, there is a valid contract in accordance with the correct addition of the agreed items. If the transaction is executed and the buyer has paid too much, he can recover the excess payment. No preliminary decree of reformation is necessary. If the transaction is still executory, the true agreement is enforceable as to both parties. If the erroneous agreement is in writing, reformation is proper but not necessary.” 3 Corbin on Contracts § 609 (1960).
We hold that under the facts of this case, where the monetary terms of the contract are clear and unambiguous as to principal amount, interest rate and number of payments, those terms will control an interpretation of the contract even though the monthly payments do not coincide with the other terms. The trial court was correct in its determination that the more specific terms of principal, interest and time controlled over the erroneous calculation of the monthly payment.
Plaintiffs’ next contention is that the trial court erred in its allowance of damages for the defendants’ breach of the contract in being unable to deliver the Vala stock. The trial court found there was insufficient evidence to support plaintiffs’ claims to damages in excess of the $32,500.00 value of the stock. The negative finding by the trial court indicates the plaintiffs simply failed to carry their burden of proof of any additional damages. Plaintiffs sought damages for lost rent to be paid by Vala to K & L, an amount equal to the salary paid Valentine and lost profits or value of the stock in an amount of $236,800 in addition to the $32,500 agreed value of the Vala stock.
In Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719 (1976), we held:
“The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” Syl. ¶ 5.
A careful review of the record discloses no undisputed evidence of the damages alleged by plaintiffs which was arbitrarily or capriciously ignored by the trial court. To the contrary the judgment is adequately supported by the evidence.
Finally, although not specified as an issue on appeal, we note that plaintiffs in the final paragraph of their brief assert the court committed error in assessing costs to the plaintiffs. The allowance of costs lies within the sound discretion of the trial court. Wood v. Gautier, 201 Kan. 74, Syl. ¶ 2, 439 P.2d 73 (1968); K.S.A. 60-2002(a). We find no abuse of that discretion.
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The opinion of the court was delivered by
Herd, J.:
This is an action to foreclose a real estate mortgage. Mutual Life Insurance Company of New York (MONY), plaintiff/appellee, is the mortgagee and Donald E. Bernasek and Merle L. Bernasek, his wife, defendants/appellants, are the mortgagors. Oketo State Bank, W. R. Grace & Company, and Farmers Group Purchasing, Inc., defendants, are lienholders of the Bernaseks, junior to MONY. This appeal is from the trial court’s judgment for MONY.
Donald E. Bernasek and his wife, Merle L. Bernasek, owned 440 acres of farmland in Marshall County. The dismal agricultural economic conditions of the late 1970’s drove the Bernaseks to financial disaster. They sought long-term financing. On December 20, 1979, they made a loan application to MONY which was favorably received. On February 4, 1980, MONY made a non-assignable loan commitment to the Bernaseks in an amount not to exceed $425,000. The Bernaseks accepted the commitment. The amount of the loan was later reduced to $375,000 with Bernaseks’ agreement.
Due to some confusion as to the applicability of Regulation Z of the Federal Truth in Lending Act (TILA), 12 C.F.R. 226 et seq. (1980), to this transaction MONY decided to use an abundance of caution and comply with the Act. On July 14, 1980, it served an “Advance Disclosure Statement” and a “Rescission Notice” on the Bernaseks. They were given until no later than midnight, July 17, 1980, to cancel the transaction. They did not cancel, rather, they accepted the loan proceeds, executed a note in the amount of $375,000 and gave a mortgage on 440 acres of land on July 18, 1980. The loan was disbursed pursuant to the Advance Disclosure Statement except for two variations. These changes reduced the net disbursement to the Bernaseks by $10,124.49. The Bernaseks, nevertheless, executed and acknowledged the July 18 disbursement closing report authorizing the disbursement of the loan proceeds according to those terms. Oketo State Bank received $72,000 on its note out of the loan proceeds. When the balance of $154,556.02 was distributed to the Bernaseks by MONY, Oketo claimed that balance. The Bemaseks endorsed the draft to Oketo, leaving themselves no operating capital. This proved disastrous. They immediately defaulted on the MONY loan.
MONY filed this foreclosure action on August 13, 1981. The Bemaseks promptly filed a petition in bankruptcy which stayed the foreclosure action for some time. Eventually the automatic stay was lifted and MONY obtained judgment on December 30, 1982. By the terms of that judgment the Bemaseks were permitted to pursue their TILA claim against MONY. Accordingly they filed a counterclaim on February 14, 1983, setting out MONY’s alleged violations of Regulation Z. On February 26, .1983, the Bemaseks attempted to rescind the transaction by mailing MONY a Rescission Notice accompanied by their quitclaim deed to 385 acres of the foreclosed real estate, which they valued at $385,000. In spite of this ploy the sheriff s sale was held on March 8, 1983, and the entire tract of 440 acres was sold to MONY.
After an evidentiary hearing on the Bemaseks’ counterclaim the trial court rendered judgment for MONY, holding the transaction was exempt from TILA as an agricultural loan exceeding $25,000 and that the attempted rescission by the Bemaseks had no legal effect. This appeal followed. We affirm.
The sole issue on this appeal is the applicability of the Truth in Lending Act. TILA is intended to aid consumers in making informed decisions concerning the extension of credit by requiring the use of uniform vocabulary and disclosures of the costs of credit. 15 U.S.C. § 1601 (1976). The Act as well creates certain consumer rights which must also be disclosed. 15 U.S.C. § 1636. To compel compliance Congress created a cause of action for consumers which includes civil penalties and attorney fees. 15 U.S.C. § 1640(a)(2)(A), and (a)(3). The resulting federal right against lenders may be litigated in state court pursuant to the supremacy clause of Article VI of the United States Constitution. United Missouri Bank of Kansas City v. Robinson, 7 Kan. App. 2d 120, 638 P.2d 372 (1981).
On the facts of this case, the trial court correctly found that the TILA by its terms did not apply to this loan. The TILA exempted all agricultural loan transactions of over $25,000. 15 U.S.C. § 1603(5) (1976); 12 C.F.R. § 226.3(e) (1980). That exemption has now been repealed. 15 U.S.C. § 1603 (1982). However, the repealer does not affect this case. In spite of the exemption the Bernaseks argue MONY’s act of volunteering some of the Regulation Z requirements brought this transaction under the Act.
The TILA provides, and the courts have held, the Act should be liberally construed in the consumer’s favor; however, equitable considerations cannot be ignored in the process.
“There are times when the lender has made a good faith effort to comply with the uncertainties of the TILA and when the borrower has not been misled or damaged. In these instances holding the lender liable would amount to nothing more than a windfall for the borrower. The purposes of the TILA are not served by harassment of well-intentioned lenders.” Super Chief Credit Union v. Gilchrist, 232 Kan. 40, 46, 653 P.2d 117 (1982).
The Bernaseks argue MONY should be estopped to deny the validity of its voluntary representations, notwithstanding that MONY’s disclosures were not required by federal law. They specifically claim MONY represented in its July 14 “Rescission Notice” that the Bernaseks possessed a three-day right of rescission under TILA, running through midnight July 17, 1980, which MONY should now be estopped to deny. Thus, they invoke the doctrine of equitable estoppel.
The Bernaseks go on to argue that if MONY is estopped to deny the validity of the rescission notice it should then be required to comply with the Bernaseks’ right to rescind as it exists under federal law. They claim the rescission notice gives them the right to rescind within three days of the date of the notice “or any later date on which all material disclosures required under the Truth in Lending Act have been given . . . .” The Bernaseks claim essential facts were undisclosed and that the actual closing statement was not signed until July 18 “so there was nothing to rescind prior to that date.” They then conclude the rescission notice did not expire according to its own terms but, being faulty and misleading, is limited only by the three-year statute of limitations provided for in 15 U.S.C. §1635. The Bernaseks exercised their claimed rescission rights February 26, 1983, within three years of the July 18, 1980, closing date. This argument is valid only if MONY is estopped to deny the applicability of TILA.
The doctrine of equitable estoppel is well established:
“Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.” Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 6, 642 P.2d 75 (1982).
While actual fraud, bad faith or an attempt to mislead or deceive is not essential to create an equitable estoppel, it is necessary to show both misrepresentation and detrimental reliance to invoke the doctrine. Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117, Syl. ¶ 2, 650 P.2d 738 (1982).
We find substantial competent evidence to support the trial court’s finding there was no misrepresentation on the part of MONY or detrimental reliance by the Bernaseks. Though not required by the TILA, the rescission notice MONY gave the Bernaseks on July 14,1980, was binding on MONY as granted. It was in no way a misrepresentation. The Bernaseks thus had the right to cancel the entire transaction until midnight, July 17, 1980. They chose not to cancel, and are bound by that choice. The Bernaseks claim the commitment of $425,000 was a misrepresentation upon which they detrimentally relied causing them to decline rescission. This argument lacks validity. The Bernaseks had prior knowledge of the reduction in loan amount. The July 14, 1980, Advance Disclosure Statement which accompanied the rescission notice contained the information about the reduced amount. In spite of this specific notice, the Bernaseks did not cancel as they had every right to do through July 17, but instead accepted the proceeds of the loan.
The Bernaseks next contend the variations between the advance disclosure statement furnished them and the actual closing statement amounts to the misrepresentation and detrimental reliance needed to entitle them to the rescission they desire. An examination of the facts surrounding this issue causes us to reject this argument also. The only changes made from the advance disclosure statement and the actual disbursements on July 18 were the advance interest to MONY and the small increase in the payoff to The Fourth National Bank of Wichita. The loan amount remained the same. These changes were explained to the Bernaseks on July 18, 1980. They agreed to them as evidenced by their signatures on the disbursement closing report. The loan was closed and the proceeds disbursed. The Bernaseks received $154,556.02 after the holders of claims and liens against the security were paid with the Bernaseks’ consent and agreement. The Bernaseks could have cancelled the transaction on July 18 had they disagreed with the proposed disbursement. Again they chose to close the transaction. We find no misrepresentation or detrimental reliance. This transaction was exempt from TILA, and the exempt nature was not altered by MONY’s voluntary act in the Bernaseks’ favor. The Bernaseks nevertheless received a three-day right to rescind, and they knowingly, freely and voluntarily waived that right. We conclude, as in Cosgrove v. Young, that MONY’s conduct gave the Bernaseks “a benefit to which they were not entitled as opposed to inducing reliance by the defendants to their detriment.” 230 Kan. at 719. Thus, there is no merit to the Bernaseks’ argument. There is no legal basis herein upon which to apply the doctrine of equitable estoppel.
Since the foregoing is dispositive of this appeal, a discussion of the other points would serve no purpose.
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Per Curiam:
This is an action in the nature of mandamus instituted by the attorney general, seeking an order of this court requiring The Honorable Jay Don Reynolds, a judge of the Sixteenth Judicial District of this state, to permit the attorney general to prosecute a criminal case pending in that district. Respondent Donald Good, a practicing attorney in Meade County, is the defendant in the pending case of State v. Good, Meade County case No. 83-CR-30, wherein Good is charged with aggravated assault, K.S.A. 21-3410, and battery, K.S.A. 21-3412. Respondent Glenn I. Kerbs is the attorney of record for defendant Good in the Meade County case. Respondent Mickey Moorman is the County Attorney of Meade County. Respondent Tom Smith was employed by the Board of County Commissioners of Meade County as a special prosecutor, under the provisions of K.S.A, 19-723, to prosecute the Meade County case.
The facts are not in dispute, Before the case was filed, the county attorney, Moorman, recognized that he had a conflict because of numerous prior dealings with the prospective defendant, Good. Moorman conferred about the matter with Judge Don Smith, the administrative judge of the district, and explained to him the reasons that Moorman felt that he was disqualified. Moorman later testified:
“I felt that it was most expedient to have someone else initiate a prosecution or decide whether or not there should be a prosecution in regard to Mr. Good.
“When I determined that I would probably have some difficulties, I conferred with Judge Don Smith, the Administrative Judge, and indicated to him that I felt like there was going to be a difficulty. I indicated to him that rather than try to find a special counsel in this Judicial District, I would contact the Attorney General’s office and ask if they would review the case for the purpose of prosecution.
“. . . I indicated to him [Judge Smith] that it was my intentions to contact the Attorney General’s office and ask if they would review this matter, rather than ask him to appoint a special prosecutor. He indicated that sounded like a good idea and that would avoid conflicts in the Judicial District, because of the prominence of Mr. Good’s firm.
“THE COURT: After you conferred with the Attorney General’s office, did you have any subsequent conversations on this subject with the Administrative Judge?
“MR. MOORMAN: I’m - I’m not sure.”
The complaint in the Meade County case was signed, verified and filed by an assistant attorney general, who appeared for the State when the matter came on for preliminary examination. At that point, the defendant orally challenged the authority of the attorney general to prosecute the district court case. After argument, Judge Reynolds held that the attorney general had no authority to prosecute the case in the trial court; that there was therefore no approved representation of the State of Kansas; and that the county attorney should, within ten days, confer with the board of county commissioners, pursuant to K.S.A. 19-723, and secure the appointment of a special prosecutor. The proceeding was recessed pending the appearance of an attorney engaged by the board of county commissioners to prosecute the case. The board of county commissioners later authorized the employment of respondent Tom R. Smith as special prosecutor in the case. Before any further action was taken in the district court proceeding, this case was filed by the attorney general.
The issue, as presented in the briefs of the respective parties, is whether the attorney general has the power to commence and prosecute any criminal case in any district court of this state. We do not think so broad a question need be decided. The controlling issue is whether the attorney general was properly appearing before the Meade County District Court as the prosecutor in the case of State v. Good, and whether his office is legally entitled to continue that prosecution.
The constitution and statutes of this state are helpful, but the specific authority of the attorney general to prosecute cases in the trial courts is not spelled out in detail. Likewise, our earlier decisions do not reach the question before us. Article 1, § 1 of the Constitution of Kansas designates the attorney general as one of the executive officers of this state. The constitution is silent as to the attorney general’s powers and duties. K.S.A. 75-702 makes it incumbent upon the attorney general to appear for the State and prosecute or defend, in any court, any civil or criminal matter in which the State may be interested, when the attorney general is “required by the governor or either branch of the legislature” to do so. Absent gubernatorial or legislative direction, that statute requires the attorney general to appear and defend only those cases which are before the Kansas Supreme Court. K.S.A. 75-108 also imposes -upon the attorney general the duty to protect the interests of the State in any action when informed of such action by the governor.
K.S.A. 19-702 imposes a duty upon the county attorneys to appear in the several courts of their respective counties and prosecute or defend on behalf of the state all suits, civil or criminal, arising under the laws of this state, in which the state or the respective county is interested. K.S.A. 19-711 provides that when the county attorney is disabled, any court before whom it is his duty to appear may appoint an attorney to act as county attorney. K.S.A. 19-723 authorizes the board of county commissioners to employ an additional attorney to assist the county attorney.
K.S.A. 75-704 imposes a duty upon the attorney general to consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties. K.S.A. 41-1107 imposes a duty upon the county attorneys to enforce the intoxicating liquor laws, and when the county attorney neglects or refuses to do so, imposes that duty upon the attorney general.
In State, ex rel., v. Dawson, 86 Kan. 180, 119 Pac. 360 (1911), we were confronted with a dispute between the governor and the attorney general. Construing Laws of Kansas 1879, ch. 166, § 71, the forerunner of K.S.A. 75-702, we held that inquisitions under the prohibitory laws were “proceedings” within the import of the statute, and that the attorney general was required to conduct such a proceeding when directed to do so by the governor. In State v. Finch, 128 Kan. 665, 280 Pac. 910 (1929), the issue before us was whether the attorney general may control a liquor prosecution in the trial court without the concurrence of, or in opposition to, the county attorney. We reviewed the powers of the attorney general as delineated in our earlier cases and at common law, citing numerous cases from other jurisdictions, and said, “the attorney-general’s powers are as broad as the common law unless restricted or modified by statute.” 128 Kan. at 671. We noted that the attorney general is by statute the central head of our intoxicating liquor law enforcement. We cited and discussed R. S. 1923, 21-2125, the predecessor of K.S.A. 41-1107, and concluded that, though the attorney general is not required to take part in a liquor prosecution, if he does appear in such a case he is entitled to take full charge and to control the course of the prosecution despite the desires of the county attorney.
Heinz v. Shawnee County Comm’rs, 136 Kan. 104, 12 P.2d 816 (1932), was an action by the former county attorney of Shawnee County against the board of county commissioners to recover attorney fees for services performed pursuant to contract with the board while the plaintiff was county attorney. The services were rendered in the Kansas Supreme Court in appeals taken in criminal cases by defendants who had been convicted in the District Court of Shawnee County. We held that, while the county attorney was required by statute, R. S. 1923, 19-702, to prosecute criminal cases in the Shawnee County courts, he was not obligated to appear in the federal courts, the courts of other counties, or the Kansas Supreme Court, and we concluded that he was entitled to recover the value of the services performed for the county in this court. In that opinion, we said:
“It may be observed here that it is a common practice for the county attorney freely to assist the attorney-general. The county attorney is not, however, bound to do so. He could not be ousted from office for failure to perform an official duty if he refused. The statute provides that the attorney-general shall consult with and advise county attorneys, when requested, in all matters pertaining to their official duties (R. S. 75-704); but there is no reciprocal statute, and assistance given the attorney-general by the county attorney is given as a matter of professional courtesy and from desire to serve. This cooperation will doubtless be manifested in the future as it has been in the past; but the attorney-general should not press the matter too far, and boards of county commissioners should not press the matter too far.
“The statute under interpretation expresses a general grant of power, and not a limitation upon power. The county board has the care of county property, and has management of all the business and concerns of the county, the management of which is not committed to others. However, to prevent usurpation and confusion in the conduct of public business, we say there is an implication that one officer or board shall not intrude upon the province of another. The county attorney looks after criminal cases in the district court, the attorney-general looks after criminal appeals in the supreme court, and the implication is that the county board may not take the conduct of criminal cases out of the hands of either. The county attorney may not displace the attorney-general, the attorney-general may not displace the county attorney except on direction of the governor or the legislature, and neither the cpunty attorney nor the attorney-general may displace the board of county commissioners in general management of county affairs. We have no such case here.
“While the attorney-general conducts the state’s side of criminal appeals he does so primarily in the interest of the general welfare. Protection of the financial interest of the county in the results of an appeal is purely incidental. That interest is a matter of special concern to the county, and to permit the county board to protect that interest directly, by tender of assistance to the attorney-general, does not contravene the principle that delegation of power of management and control to one public officer excludes exercise of the power by another public officer.” 136 Kan. at 108.
The case at hand illustrates the mutual cooperation and assistance which exists between the offices of the attorney general and the county attorneys discussed in Heinz. The record in this case clearly discloses that the county attorney sought assistance from the attorney general. Moorman, having a conflict, could not prosecute Good. Rather than seek the appointment of a special prosecutor, the county attorney opted to seek assistance from the attorney general. It is a common practice for the attorney general, when requested by a county or district attorney, to send one of his assistant or deputy attorneys general to assist the county attorney. Not infrequently the attorney general is requested to take over the prosecution of a particular case.
The attorney general did not take unilateral action in entering the Good case. The act of the county attorney in referring the file to the attorney general’s office, when the county attorney himself was disqualified, constituted a request for the attorney general to take whatever action was necessary and was an invitation to prosecute the case. Once a request is made by a county attorney to the attorney general to prosecute a case, the attorney general has discretion. If members of his staff have time to handle the prosecution, the attorney general’s1 office may take over that function; if staff members are otherwise occupied, the attorney general may decline the invitation. He is not bound to take over every local prosecution in which his assistance is requested. K.S.A. 75-704 imposes a duty upon the attorney general to consult with and advise county attorneys, but it does not impose a duty upon the attorney general to prosecute. That function is discretionary, and is of great benefit. It saves the counties the expense of employing special prosecutors, and provides a pool of experienced prosecutors who may handle the trial of criminal cases upon request of the county attorneys.
The attorney general is the chief law enforcement officer of the state. State, ex rel., v. Rohleder, 208 Kan. 193, 194, 490 P.2d 374 (1971). He is also designated by K.S.A. 22-2202(19) as one of the State’s prosecuting attorneys. When the attorney general is requested by a county attorney to prosecute a case in the trial court, the attorney general may file a complaint and prosecute the case to its conclusion independent of any court order. Once the attorney general enters the case, he controls the prosecution and may not be removed except for cause.
We conclude that the respondent judge erred in holding that the attorney general had no authority to prosecute the case of State v. Good under the facts then before him. The attorney general, having been invited by the county attorney to handle the case, was properly and legally appearing as prosecutor in the trial court, and is legally entitled to continue that prosecution.
The petition is granted, and the respondent Judge Jay Don Reynolds is directed to permit the attorney general or any authorized assistant or deputy attorney general to prosecute the case of State v. Good now pending in the District Court of Meade County, Kansas.
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The opinion of the court was delivered by
McFarland, J.:
This is an interlocutory appeal by the State pursuant to K.S.A. 22-3603 from an order of the district court suppressing and excluding evidence. The Court of Appeals dismissed this interlocutory appeal on the basis the order appealed from was not final. This court granted the State’s petition for review.
Defendant Sherman L. Galloway is charged with rape (K.S.A. 21-3502); aggravated sodomy (K.S.A. 21-3506); aggravated robbery (K.S.A. 21-3427); and kidnapping (K.S.A. 21-3420). This is not the first time this case has been before this court on an interlocutory appeal by the State. (State v. Galloway, 232 Kan. 87, 652 P.2d 673 [1982], hereinafter referred to as Galloway I.)
The complex factual situation underlying this case was stated in Galloway I as follows:
“On May 12, 1981, at approximately 12:30 a.m., Ms. G, a Kansas University (KU) graduate student, was attacked by a black male as she walked home. The man forced her into his car and drove her to Clinton Park in Lawrence where he raped her and sodomized her. He then left the park taking with him Ms. G’s clothing,- a set of keys to KU buildings issued to her, a backpack containing a textbook with the victim’s name in it, a swim cap, a coin purse and other items. Ms. G went to her apartment immediately after the incident and reported-it to the police, who came and took her statement that night. The next day she aided the police in assembling a composite of her assailant and notified them of the items of personal property taken from her by the rapist.
“On July 8, 1981, at approximately 10:20 p.m., Ms. R was jogging on the KU campus when she was attacked from behind by a black male wearing a sleeveless tank top shirt. He threatened Ms. R with a knife and dragged her down a hill into a bushy area where he raped and sodomized her. Ms. R managed to struggle free and run to a nearby street where she received a ride from a passing motorist. She notified the KU police, who went to the area and found a billfold containing the driver’s license of Sherman L. Galloway. The next day officers of the KU police department (KUPD) submitted to Ms. R a photographic lineup of eight black males. From the photographs she identified Sherman L. Galloway.
“During the afternoon of July 9, 1981, a warrant for the arrest of Sherman L. Galloway was issued charging him with the rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506) of Ms. R. The same day Lt. Detective Vic Stmad of the KU police department obtained a search warrant for the residence of Sherman Galloway. The officers were authorized to seize ‘one (1) sleeveless tank top shirt appearing to be brown in color with horizontal stripes and one (1) knife with a curved blade approximately % inch wide and approximately three to four inches long.’
“KU Detectives Strnad and Mike Riner and Lawrence police Detective Mike Hall executed the warrants during the evening of July 9, 1981. Detective Hall found a knife, which he seized, in the drawer of a nightstand. Next to the knife he observed a ring with KU keys on it. Detective Hall showed the keys to Detective Riner who also recognized them as KU keys. The officers then seized the keys. Other property taken in the search included drug paraphernalia and a portable food warmer marked ‘Property of Domino’s Pizza. If found return to Domino’s for reward.’
“On July 14, 1981, Detective Hall contacted Ms. G and showed her a ring of KU keys. She identified the keys as those taken from her by the person who sexually assaulted her on May 12. She later identified Galloway as her assailant from a photographic lineup.
“On July 22, 1981, Detective Hall obtained a warrant authorizing another search of Galloway’s residence, along with his automobile. Property listed on this search warrant included most of the things taken from Ms. G when she was attacked. During this search,officers found and seized Ms. G’s backpack, textbook, class notes and swim cap.
“On July 24, 1981, an amended complaint was filed charging Galloway with rape and aggravated oral sodomy concerning Ms. R and kidnapping (K.S.A. 21-3420), aggravated robbery (K.S.A. 21-3427), rape and aggravated oral sodomy concerning Ms. G. The Ms. R charges were later severed from the Ms. G charges.
“On September 25, 1981, Galloway filed a motion to suppress the KU keys seized from his residence on July 9, 1981. The trial court granted the motion and the State took an interlocutory appeal. The Court of Appeals, in an unpublished opinion, upheld the trial court. This court then granted the State’s petition for review.” 232 Kan. at 87-89.
This court in Galloway I reversed the district court’s suppression of the seized keys and the Court of Appeal’s affirmance thereof and remanded the case for further proceedings. The issue in Galloway I focused upon the State’s right to seize the ring of keys during the execution of the search warrant. As indicated in the statement of facts, the charges relative to victims Ms. R and Ms. G, while contained in one complaint, had been severed. Defendant has been convicted of the charges relative to victim Ms. R and the conviction has been affirmed by this court in an unpublished opinion. (State v. Galloway, No. 54,304, filed March 26, 1983.) The issues herein solely relate to the charges pending relative to victim Ms. G.
After the case was remanded to the district court for further proceedings, certain evidentiary motions were heard. The dis trict court sustained defendant’s motions: (1) to suppress a composite photograph of a completed “Identi-Kit”; and (2) the photographic lineup identification of the defendant by the victim. Additionally, the district court held, on the State’s motion in limine, the State would not be permitted to introduce any evidence relative to observation of the keys by defendant’s wife. (Whether these rulings were temporary or final is one of the issues on appeal and the facts relative thereto will be set forth in detail in the discussion of that issue.) The State then filed this interlocutory appeal pursuant to K.S.A. 22-3603 as to all three adverse rulings.
I. JURISDICTIONAL ISSUES
The first jurisdictional issue is whether the evidentiary rulings herein are the proper subjects for an interlocutory appeal pursuant to K.S.A. 22-3603. It should be noted the district court did not base any of the complained-of rulings on violation of defendant’s constitutional rights. K.S.A. 22-3603 provides:
“Interlocutory appeals by the state. When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.” (Emphasis supplied.)
Defendant, in reliance on State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980), contends K.S.A. 22-3603 authorizes an interlocutory appeal by the State from orders of suppression only when the evidence is suppressed as having been obtained in violation of a defendant’s constitutional rights. The Court of Appeals, in Boling, held the statute did not authorize interlocutory appeals by the State from rulings excluding evidence predicated upon statutory rules of evidence.
The State argues the Court of Appeals’ construction of K.S.A. 22-3603, as expressed in Boling, is too narrow and the statute authorizes interlocutory appeals in any situation where the complained-of exclusion of evidence substantially impairs the State’s ability to prosecute the case.
This precise issue has been decided in State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). In Newman this court stated:
“We have concluded that the narrow interpretation of the term ‘suppressing evidence’ in K.S.A. 22-3603 set forth in Boling should be rejected and should not be followed in this state. We hold that the term ‘suppressing evidence’ as used in that statute is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude State’s evidence so as to substantially impair the State’s ability to prosecute the case.” p. 34.
We conclude the State has made an adequate showing the complained-of exclusion of evidence substantially impairs the State’s ability to prosecute the case. Accordingly, we further conclude the challenge to jurisdiction asserted in this issue is without merit.
In the second jurisdictional issue defendant contends the complained-of rulings excluding evidence were temporary rather than final orders and, hence, are not proper subjects for appellate review. By virtue of the nature of this issue, the relevant facts must be set forth in considerable detail.
After the mandate was received in Galloway I, the State filed a motion requesting: (1) all pending motions of defendant be set for hearing; and (2) the case be set for trial. One of defendant’s motions sought suppression of the police investigation composite picture (Identi-Kit) of the alleged rapist.
On January 7, 1983, the district court set a trial date of February 7, 1983. On January 27, 1983, the State filed a motion raising an issue whether statements made by the defendant’s wife to a police officer, concerning the wife’s observation of the university keys at defendant’s residence, were protected by marital privilege. On February 2, 1983, defendant filed a motion to suppress photographic lineup identification evidence and requested an order in limine excluding in-court identification testimony.
All motions then pending were called for hearing on February 4, 1983. The State had issued subpoenas for witnesses to be present on the various evidentiary issues. The witnesses were present. For some unexplained reason only legal arguments were heard at the February 4 hearing, and no witnesses were called to testify. At the conclusion of the hearing the district court reserved judgment on the defendant’s motions to suppress the Identi-Kit photographs and the photographic lineup identification. Relative to the marital privilege issue, the district court indicated it saw no difficulty with defendant’s wife testifying as to observation of the keys but, in essence, would defer any ruling thereon until defense counsel submitted some authority.
Sometime during the weekend of February 5/6, 1983, the district court notified all parties that, due to a snowstorm and resulting poor parking conditions at the Douglas County Courthouse, the trial would be continued for one week from Monday, February 7, to Monday, February 14, 1983.
On Tuesday, February 8, 1983, defendant filed a motion seeking his discharge because of an alleged violation of his statutory right to a speedy trial pursuant to K.S.A. 22-3402. Later that day the district court assembled the parties concerned and held a hearing on the speedy trial motion. The district court denied defendant’s motion for discharge. Then, without prior notice to the State, the district court took up defendant’s motions to suppress the police investigation composite photograph and photographic lineup identification, and the State’s motion pertaining to the wife’s observation of the university keys at the couple’s residence.
During the February 8 hearing, the district court sustained defendant’s motion to suppress the Identi-Kit photograph and the photographic lineup identification. Additionally, the district court held testimony of the wife’s observation of the keys would be excluded on the basis of marital privilege. The specific language utilized by the district court is crucial to the determination of this issue and must be set forth in considerable detail.
In commencing the February 8, 1983, hearing, the district court complimented the defense attorney, Mr. Heeb, for his timely filing of the speedy trial motion as it made it possible for the court to have a hearing and the court wanted also to “dispose of some of the other matters in this case that I have now had time to reflect upon.” (Emphasis supplied.) After denying defendant’s speedy trial motion, the district court announced:
“Now the reason I’m glad you filed that and filed it promptly is because I wanted to make some rulings in connection with some of these other matters that I have had time to research and reflect upon, and I would now enter the following orders: With regard to the Identi-Kit, the motion in limine will be granted as to presentation of the Identi-Kit picture except as might be appropriate for rebuttal.” (Emphasis supplied.)
The district court informed the parties the composite photograph (Identi-Kit) was “properly excluded as hearsay.” The court then considered an issue involving K.S.A. 60-455 (other crimes or civil wrongs evidence), which is not an issue on appeal.
After addressing the K.S.A. 60-455 issue, the district court ruled on the State’s motion relative to the propriety of the wife’s testimony on her observation of the university keys at the marital residence, stating:
“THE COURT: Three: With regard to the privileged communication. Under 60-407 ordinarily the admissibility of all evidence is tested as to its relevance unless an exclusion — unless some exclusion or privilege keeps that evidence out. 60-428 excludes confidential communication. Six Washburn Law Journal 157, which' counsel was nice enough to furnish me says that the rationale is protection of the marital harmony. I believe I already indicated that any statements made by the defendant to the wife would appear to be privileged communication, and I now adopt that as the Court’s ruling. I think it is. And anything he said to her should be properly suppressed. Although there is not any authority which I have been able to put my finger on quickly as to her observation as to the keys, I can’t see any difference between the spoken word and leaving the keys for the wife to see. Whether he says T got the keys’ and says something about them, or leaves them there where the wife can see them is part and parcel of the same thing, and if the rationale is in fact to protect marital harmony then there is nothing to hide from the spouse, nothing to worry about her seeing because it seems to me she should not be allowed to testify against him in that regard either. Therefore the motion in limine will be granted. There will be no statements made about the keys or seeing the keys on the part of the wife. Here again I must note that if the defendant offers some explanation or gets into the subject there easily could arise the situation of a waiver, and we will have to watch carefully because even though the order is in effect there could be a waiver of the privilege by virtue of testimony by way of explanation.” (Emphasis supplied.)
The district court then took up the defendant’s motion to suppress the prosecutrix’s pretrial photographic lineup identification of the defendant as her attacker. The battle on this issue had been fought in part on testimony by the prosecutrix at the preliminary hearing relative to her in-court identification of defendant wherein the following had occurred on direct examination:
“Q. Could you describe or give the description of what the person looked like?
“A. Well, he was — he just looked like a medium height man, medium weight, muscular, kind of trim, not fat and not thin. A real full round face was one thing that I noticed.
“Q. Okay. I’d like you to look around the courtroom and I’ll ask you if the person that’s in the courtroom that put you in the car that night at knifepoint.
“MR. HEEB: Objection, Your Honor, she stated that she never did see the individual and never saw the individual’s face. There’s no — there’s no background or foundation to believe that she can make any kind of an identification.
“THE COURT: It’s still a proper question. Objection is overruled.
“A. Well I never saw a good full front view, but I do think it’s him (indicating).
“Q. Okay. You mean the person sitting over here in the gray-green overalls? “A. Right.
“Q. Okay. Let the record reflect that the witness has identified the defendant. Why do you feel that it was him? What is it about him that makes you feel that way?
“A. Well, it looks like him. Like I told you that if you put me in a room with fifty people I probably wouldn’t be able to pick him out.
“Q. Okay.
“A. Out of a crowd like that.
“Q. Okay.
“MR. HEEB: Your Honor, I move to strike that identification. It’s obviously based on an in-court situation where there’s a defendant sitting in jail garb and she picked him out and says he looks like the man, but she’s — by her own admission couldn’t pick the man out of a room of fifty people. That’s improper identification and I move to strike that testimony.
“THE COURT: I think the identification is subject to cross-examination. It’s a tentative identification and you can ask all those questions, but it’s still a proper question and the response was proper. Objection is overruled.” (Emphasis supplied.)
The district court in ruling on the suppression of the photographic lineup motion stated:
“Four: As to the in-court identification and photo lineup. I read again very carefully the quoted testimony from the transcript. It appears to me that the witness has said under oath that ‘If you put me in a room with fifty people I couldn’t pick him out’. Apparently she was shown a lineup or photographic lineup of six people knowing at the time that there was a man in custody, and I gather knowing that something of hers was found with this man. In other words the odds were changed from one to fifty, to one to six. The point I would make is if she can’t pick one out of fifty it’s not fair to make the odds one out of six in order to make an identification or to rehabilitate her testimony. She has apparently said, ‘He looks like the man’. She could take the stand and she can say that. But you can’t go any further with regard to the photographic lineup because she also made it clear although ‘He looks like the man’ she ‘Couldn’t pick him out of a room with fifty people in it’. So the motion in limine on that item is granted.
“MR. HEEB: I’m sorry. I didn’t quite understand. Is there to be no evidence concerning the photo lineup?
“THE COURT: That’s right. She can say on the stand he looks like the man, and I suspect on cross-examination she will be asked if she hadn’t said, ‘If you put him in a room with fifty people . . .’ she couldn’t pick him out. I don’t expect the State would offer that, although they might. But the most you’ve got from this witness is that ‘He looks like the man’. It’s obvious to me the State’s case is not based upon that identification other than ‘He looks like the man’, but it’s clear the State does not have the defendant identified beyond a reasonable doubt visually. The State is using the property of the victim which were the keys which were found in the defendant’s house, and they’re relying upon the sameness to another crime which may or may not be admissible after we conduct the Bly Hearing.” (Emphasis supplied.)
It should be noted, for the sake of accuracy, it is undisputed that eight rather than six photos were involved in the photographic identification.
The district court concluded its activities in disposing of the various motions by declaring:
“I suspect that we need not journalize those orders as long as you understand what they are because we have them clearly on the record, and I will have them in front of me here.” (Emphasis supplied.)
The assistant district attorney representing the State advised the court she had not been told that motions other than the motion for dismissal would be taken up at the hearing. The court responded that it had not thought it would be able to take up the various pretrial motions until “during the trial,” but the one-week postponement in the trial due to the snowstorm had given the court an opportunity to “research and reflect upon” the various motions. The district court continued:
“I wasn’t trying to foreclose you, but having put the trial over for a week I have had the better part of the day to do the research and I’m happy I did because now I do have time for what I was going to do. If you have anything else that might affect the motion in limine my order will stand until you can show some reason why it shouldn’t stand, and you have the rest of the week to do that.” (Emphasis supplied.)
At the previous hearing, the State had argued the matter fully and had nothing further it could present on the issues. The State has advised the witnesses, if called, would not have added any new facts to alter the ruling as to the motion in limine.
The following day, February 9,1983, the State filed a Notice of Interlocutory Appeal with the Douglas County District Court. The appeal was docketed with the Clerk of the Appellate Courts on Thursday, February 10,1983. On the same day the appeal was filed, February 9, the State also filed two requests for transcripts. In its first request the State sought transcripts on the hearings held on February 4 and 8, 1983. In its second request the State sought transcripts on the preliminary hearing testimony of the prosecutrix and Detective Mike Hall.
In its interlocutory appeal, pursuant to K.S.A. 22-3603, the State seeks appellate review of the district court’s orders ex- eluding evidence of the police investigation composite photograph (Identi-Kit), the photographic lineup identification, and the testimony of defendant’s wife pertaining to her observation of university keys at the couple’s residence.
On Thursday, February 10, 1983, the trial judge learned of the State’s interlocutory appeal through a radio news report. The court, on the same day, then directed both counsel to appear before it. The court made inquiry of the State as to whether it had, in fact, filed an interlocutory appeal. When the State responded in the affirmative, the court stated:
“Let me advise counsel that this case will be tried on Monday. There will be no interlocutory appeal. There has not yet even been a Jackson-Denno Hearing to appeal from. When I left the courtroom the other day you indicated to me you wanted to offer evidence and I told you I would hear it. If you get it in before trial, that is just fine. If you are not going to get it in until during the trial my order on the motion in limine stands, but you’re not going to the Supreme Court until you have a Jackson-Denno because you don’t have a final order to appeal from.” (Emphasis supplied.)
Little would be gained by inclusion herein of a detailed recitation of what transpired during the balance of the February 10, 1983, conferences (there were two). It is obvious the district court was agitated over the State having filed a notice of interlocutory appeal and was confused regarding the nature of a Jackson-Denno proceeding. Further, the district court was operating on the belief the State could seek an appeal only on a question reserved pursuant to K.S.A. 22-3602(fc)(3). Additionally, on February 10, 1983, the district court made statements to the effect its rulings entered two days previously were temporary, rather than final orders. Moreover, representations were made by the district court it could just cancel its previous orders. Without dwelling further on the February 10,. 1983, conferences, we can understand why the State felt it had no alternative but to proceed with its pending interlocutory appeal. We also note the district court’s proceedings on February 10, 1983, are apparently contrary to K.S.A. 22-3603 which explicitly provides further proceedings in the trial court shall be stayed pending determination of an interlocutory appeal. See also Supreme Court Rule 4.02(e), 232 Kan. cviii.
In dismissing the State’s appeal in this case because there were allegedly no final orders to appeal from, the Court of Appeals emphasized the oral orders of February 8, 1983, had not been journalized. In State v. Bohannon, 3 Kan. App. 2d 448, 596 P.2d 190 (1979), the Court of Appeals stated:
“Oral orders which are appealable must, when entered, be on the record, and should expressly state whether the announcement alone is intended to constitute entry of the order or whether the trial court expects the order to be journalized and approved by the court before it is deemed to have been formally ‘entered.’ ” 3 Kan. App. 2d 448, Syl. ¶ 1.
The two elements of Bohannon have been met in this case. First, the orders of suppression appeared on the record — a transcript was made of the February 8, 1983, hearing. Second, the district court advised the parties there was no need to journalize the orders as long as the litigants understood “what they are because we have them clearly on the record, and I will have them in front of me here.”
It is clear from the record of the proceedings on February 8, 1983, the three rulings relative to exclusion of evidence: (1) were final orders; (2) substantially impaired the State’s ability to prosecute the case (as previously held); and (3) are proper subjects for an interlocutory appeal by the State pursuant to K.S.A. 22-3603.
Having disposed of the jurisdictional issues, we shall consider the substantive questions presented in this appeal.
II. DID THE DISTRICT COURT ERR IN SUPPRESSING A COMPOSITE (IDENTI-KIT) OF DEFENDANT PREPARED BY A POLICE OFFICER AT THE DIRECTION OF THE PROSECUTRIX?
The alleged attack upon Ms. G. occurred on May 12,1981. The following day she was interviewed by Detective Donoho of the Lawrence Police Department for the purpose of assembling a composite (Identi-Kit) likeness of her assailant.
The procedure utilized in assembling the composite was described in detail by Ms. G in her testimony at the preliminary hearing held herein. The Identi-Kit consisted of many transparent overlays each depicting a different facial characteristic or hair style. Detective Donoho initially presented Ms. G with a composite which the prosecutrix characterized as a “Joe Average” portrait. Ms. G was then asked what was wrong with it and overlays were added or deleted in accordance with her series of responses. This procedure took from fifteen to thirty minutes. A photograph was taken of the end product and has been designated State’s Exhibit No. 9. Ms. G identified Exhibit No. 9 as accurately depicting the final Identi-Kit composite. Illustrative of Ms. G’s testimony relative to the construction of the composite is the following excerpt from defense counsel’s recross-examination of Ms. G at the preliminary hearing:
“Q. Did he get the face as round as you would have had it if you could have free hand drawn it?
“A. What I told him to do finally was to sketch it down to make it so the chin wasn’t so pointed to get a shorter type looking face.
“Q. Was there anything else you tried to get him to do to change the drawing that he was unable to do with the materials that he had?
“A. No. I didn’t ask for anything else. I couldn’t remember it specifically enough to — I would say it just kind of looks wrong, looks right.
“Q. So the eyes then for instance are the closest representation that you could construct according to the materials that were available and the fact that you didn’t see your assailant’s face, is that correct?
“MR. HAMMEL [Assistant District Attorney]: Judge, I’m going to object to that. I don’t believe she ever stated she didn’t see her assailant’s face. That’s not in evidence.
“MR. HEEB: I think that is in evidence, Your Honor.
“THE COURT: I think it’s a misstatement of facts. Objection is sustained.
“Q. (By Mr. Heeb) Concerning their observations that you did have of your assailant and the available choices of eyes, overlays, that is the closest that you could come up with, is that correct?
“A. Yeah, I think so.
“Q. Is the same true for the nose?
“A. Yeah, we didn’t play with the nose too much.
“Q. Okay. And the mouth, is that true?
“A. Right.
“Q. But the shape of the face is not the way you would have had it, it’s a modification based on materials that were available, is that correct?
“A. Yeah, I think so.”
The defendant’s motion to suppress the photograph of the composite contended:
“2. That the composite picture was not based on a description by the complaining witness; rather, Detective Donoho constructed a face and then modified it through replacement of various facial features which he chose in response to Ms. [G’s] comments.
“3. That Ms. [G] testified at the preliminary hearing that the [Identi-Kit] composite did not accurately depict her recollection of her alleged assailant.
“4. That the composite picture produced by Detective Donoho is hearsay evidence and inadmissible; it was assembled by Detective Donoho based not on what he saw but on what was told to him by someone else; the composite picture has no standing as to the truth or accuracy of the matter contained in it.”
In sustaining defendant’s motion to suppress the photograph of the composite, the district court stated:
“With regard to the Identi-Kit, the motion in limine will be granted as to • presentation of the Identi-Kit picture except as might be appropriate for rebuttal. I suspect that is the way it was going to happen anyway, but I am satisfied after reading [42] ALR 3d 1217 that such an exhibit is properly excluded as hearsay in that it relies upon the operator’s skill as well as what the victim says, and I repeat, it’s not excluded as it might be appropriate for rebuttal.”
See Annot., Admissibility in Evidence of Composite.Picture or Sketch Produced by Police to Identify Offender, 42 A.L.R.3d 1217. .
In State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967), the defendant was convicted of two counts of first-degree robbery. The victims of the robberies were able to identify defendant in a police photographic lineup. In affirming the conviction, this court stated:
“This court has held the testimony of a witness as to the identity of an accused is admissible if based upon the accused’s voice, features, or other distinguishing characteristics (State v. Hill, 193 Kan. 512, 394 P.2d 106; State v. Nixon, 111 Kan. 601, 207 Pac. 854; State v. Herbert, 63 Kan. 516, 66 Pac. 235), including the extrajudicial identification of an accused in a police lineup (Peterson v. State, 198 Kan. 26, 422 P.2d 567; State v. Hill, supra).
“Although the courts are somewhat divided as to the competency of evidence of extrajudicial identification, there is respectable authority holding that prior identification of an accused may be shown by the testimony of the identifying witness in corroboration of the testimony of the same witness identifying the accused at the trial. (20 Am. Jur., Evidence § 353; 22A C.J.S., Criminal Law § 725; Anno. 71 A.L.R.2d 449; 1 Wharton, Criminal Evidence §§ 181, 182 [12th ed. 1955]; 4 Wigmore, Evidence § 1130 [3d ed. 1940].) The rationale of many of the cases appears to be that evidence of former identification made under proper circumstances is impressed with such trustworthiness as to entitle it to consideration by the jury (e.g., People v. Hurley, 151 Cal. App. 2d 339, 311 P.2d 49; Basoff v. State, 208 Md. 643, 119 A.2d 917).” 198 Kan. at 9-10 (Emphasis supplied.)
Continuing:
“We think the reasoning adopted by the authorities favoring the admission into ' evidence of the extrajudicial identification of an accused is sound and should b.e applied where, as in the instant case, prior identification is made from photographs.” 198 Kan. át 10.
Different jurisdictions have varying views on the nature and admissibility of composite identification. People v. Rogers, 81 Ill. 2d 571, 411 N.E.2d 223 (1980), which cites State v. Childs, 198 Kan. 4, contains an in-depth analysis of this area of the law.
In Rogers defendant was convicted of armed robbery. At trial a photocopy of a composite (Identi-Kit) photograph was admitted into evidence to corroborate the identification testimony given by the prosecuting witness. On appeal the Illinois Court of Appeals reversed defendant’s conviction upon the ground it was error for the trial court to have admitted the composite into evidence. People v. Rogers, 75 Ill. App. 3d 866, 394 N.E.2d 813 (1979). The Illinois Supreme Court granted the State leave to appeal, pursuant to Rule 315, 73 Ill. 2d 475, and reversed the ruling of the Illinois Court of Appeals, reinstating the defendant’s conviction.
As in the instant action, the victim of the crime assisted the police in making a composite image of his assailant. The victim also identified the defendant in a photographic lineup. At trial the State introduced a photocopy of the composite created and the defendant objected thereto. The complaining witness admitted, as here, he was not in total agreement with the sketch. 81 111. 2d at 573-74. The police officer who assembled the composite testified to the description provided by the witness and the procedures employed in assembling the composite. 81 111. 2d at 574.
In reinstating defendant’s conviction, the Illinois Supreme Court rejected the thesis that composite photographs were hearsay and therefore inadmissible, stating:
“An Identi-kit consists of several transparent overlays. On each overlay is a printed variation of a facial feature. The eyewitness selects the variation of each feature which most closely matches that of the offender. Since each overlay is numbered, the composite can be easily duplicated. (See Annot., 42 A.L.R.3d 1217, 1220 (1972).) The Identi-kit composite is an extrajudicial identification; that is, it is an identification made prior to or outside of the trial in which the evidence of the identification is sought to be introduced. (Annot. 71 A.L.R.2d 449,452 (1960); Note, Admissibility of Extrajudicial Identifications, 32 Okla. L. Rev. 462, 462-63 (1979).) The admissibility of such evidence may be challenged on two grounds. First, it may be alleged that the surrounding circumstances under which the identification was obtained were unnecessarily suggestive. Then, on constitutional grounds, the extrajudicial identification evidence will be barred from use at trial. (See, e.g., Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (in-court identification must be free from taint of illegal lineup).) It is the second ground, concerning evidentiary rules, upon which the defendant claims that the trial court erred in admitting the Identi-kit composite sketch in our case. Citing People v. Turner (1968), 91 Ill. App. 2d 436, and People v. Fair (1977), 45 Ill. App. 3d 301, defendant asserts that the identification constituted impermissible hearsay. He also argues that the com posite, admitted through the testimony of the prosecuting witness, was no more than a prior consistent statement which cannot be introduced to bolster the witness’ testimony in the absence of impeachment. The State also premises its argument first on hearsay principles, stating that the extrajudicial identification should be admissible as substantive evidence of prior identification since the declarant was available for cross-examination at trial and the identity of the defendant was a critical issue in dispute. The State also asserts that the prohibition against the admission of prior consistent statements is inapplicable in situations where identification evidence is involved.
“Several jurisdictions have addressed the issue concerning the propriety of permitting evidence of an extrajudicial identification in a trial where the identity of the accused is an issue. Some courts have allowed the prior identification to be admitted as corroboration testimony, stating that the evidence relates to the weight and sufficiency of the in-court identification rather than to its admissibility. (State v. Childs (1967), 198 Kan. 4, 422 P.2d 898 (photograph identification); Judy v. State (1958), 218 Md. 168, 146 A.2d 29 (photograph).) Other courts hold the extrajudicial identification to be admissible as independent substantive evidence of identity. (People v. Gould (1960), 54 Cal. 2d 621, 254 P.2d 865, 7 Cal. Rptr. 273 (photograph identification).) Another court has ruled that although the Identi-kit composite itself was inadmissible, the preparing police officer could testify as to the operation of the Identi-kit. (Butler v. State (1970), 226 Ga. 56, 172 S.E.2d 399.) Other jurisdictions have held, pursuant to statute, that evidence of prior identification is permissible as either corroboration of impeached identification testimony (State v. Lancaster (1971), 25 Ohio St. 2d 83, 267 N.E.2d 291 (police artist sketch)) or as substantive proof of identity where the identifier is subject to cross-examination and the evidence is fair and reliable (State v. Ginardi (1970), 111 N.J. Super. 435, 268 A.2d 534 (Identi-kit composite sketch)). For a list of States which have adopted evidence rules providing for the admissibility of prior identifications, see 11 Moore’s Federal Practice, section 801.41 [4.-2], at VIII-40 (2d ed. 1976). On the other hand, several jurisdictions have held evidence of prior identification to be inadmissible hearsay and have refused its admission in evidence unless the evidence falls within an exception to the hearsay rule. See, e.g., People v. Coffey (1962), 11 N.Y.2d 142, 182 N.E.2d 92, 227 N.Y.S.2d 412 (police artist sketch); Commonwealth v. Rothlisberger (1962), 197 Pa. Super. 451, 178 A.2d 853 (artist sketch); Commonwealth v. McKenna (1969), 355 Mass. 313, 244 N.E.2d 560.
“From these cases it is apparent that the courts generally consider sketches and Identi-kit composites as out-of-court identifications and the use of them to be governed by the rules applicable to the admission of evidence concerning out-of-court identifications. The applications of these rules in the cases usually involve a discussion of the hearsay rule.
“It appears that no single facet of the law has been productive of as much confusion as has the application of the hearsay evidence rule. The varied treatment given evidence of pretrial identification in the cases discussed amply demonstrates this assertion. The definition of hearsay itself is deceptively simple and is generally accepted to be testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter. (People v. Carpenter (1963), 28 Ill. 2d 116, 121; McCormick, Evidence sec. 246, at 584 (2d ed. 1972).) The confusion arises, as is often the case, in the application of the definition. Often, a broad, sweeping generalization is made in the reported decisions and by attorneys that all extrajudicial statements made out of the presence of a defendant are hearsay and therefore not admissible. However, in many situations, testimony may be offered of an out-of-court assertion to prove the facts of the matter asserted, and yet the reason for the exclusion of hearsay evidence will be absent. We find the facts now before us to constitute such a situation.
“The reason for excluding such evidence is found in the last phrase of the definition stated above: ‘[A]nd resting for its value upon the credibility of the out-of-court asserter.’ The basis for excluding evidence under the hearsay rule lies in the fact that an opportunity to ascertain the veracity of the testimony is absent (29 Am. Jur. 2d, Evidence sec. 493, at 552 (1967)), and not that the evidence offered may technically fall within the definition of the term. Thus, the essential requirement of the testimonial offering is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the fact asserted. People v. Robinson (1978), 73 Ill. 2d 192, 200; People v. Clark (1972), 52 Ill. 2d 374, 389; People v. Cook (1965), 33 Ill. 2d 363, 370; People v. Carpenter (1963), 28 Ill. 2d 116, 121.
“This court, in the past, has approved the giving of testimony that the victim of a crime has identified the defendant from a photograph or from a lineup. (People v. Cook (1965), 33 Ill. 2d 363, 371; People v. Miller (1963), 27 Ill. 2d 336; People v. Gray (1962), 24 Ill. 2d 229; People v. Brown (1959), 16 Ill. 2d 482.) Although in these cases the witness was permitted to testify as to his out-of-court identification as corroboration of his in-court identification, this accepted evidence of out-of-court statements was in no case admitted as substantive evidence, even though the one who made the statements is present in court and subject to cross-examination. See People v. Spicer (1979), 79 Ill. 2d 173, 179; People v. Bailey (1975), 60 Ill. 2d 37, 43; People v. Cook (1965), 33 Ill. 2d 363, 371; People v. Moretti (1928), 330 Ill. 422, 424; People v. Scott (1921), 296 Ill. 268, 273.
“In People v. Clark (1972), 52 Ill. 2d 374, 388-90, this court noted the general rule that although the witness may be present in court and subject to cross-examination, he may not testify as to statements he made out of court for the purpose of corroborating his testimony given at trial relative to the same subject, except to rebut a charge or inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication. This general rule does not, however, apply to statements of identification. The justification for this exception is based on the notion that, by the time of trial, the witness’ mind has become so conditioned that there is little likelihood that he would not identify the person in court. The exception has been explained thus:
“ ‘The psychology of the situation is practically the same as when recent contrivance is alleged. To corroborate the witness, therefore, it is entirely proper *** to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person.’ (Emphasis in original.) (4 Wigmore, Evidence sec. 1130, at 277 (Chadbourn rev. ed. 1972).)
Although this exception in favor of identification testimony is widely acknowledged, it has not been applied by the courts in a uniform manner. See Annot., 71 A.L.R.2d 449 (1957).
“To resolve the uncertainty as to the law in this State concerning evidence of out-of-court identification, we set forth herein the rules that should govern the admissibility of such evidence. If a third person were to testify that he saw or heard A identify B as the person who committed the offense, that would obviously and clearly be hearsay testimony and would not be admissible. However, if A testifies that he previously identified B and his veracity is tested by cross-examination, the reason for excluding the third person’s testimony has been removed. The third person should then be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination concerning the out-of-court identification. Evidence of such out-of-court identification by both A and the third person should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence. Before the third person is permitted to testify as to A’s identification of B, A should first testify as to his out-of-court identification.
“In this case, Moake testified, under oath, as to his statement concerning the description of the robber which he gave to Detective Ashman. Moake also testified as to the authenticity of the photocopy of the Identi-kit composite sketch. The jury was able to observe Moake’s demeanor, and, more importantly, Moake was subject to cross-examination and was, in fact, cross-examined. Under these facts alone, we would hold that the admission of the' sketch did not constitute error. The additional fact that Detective Ashman testified at the trial supports our decision; the officer’s testimony served to authenticate the photo.copy and to establish the veracity of Moake’s testimony. We therefore hold that the hearsay rule does not operate to bar the admission of the extrajudicial identification.
“As hereinbefore stated, the composite and testimony concerning the production thereof constituted extrajudicial statements of identification. We have long permitted the admission of authenticated prior identification evidence where the identifier is present at trial and available for cross-examination. (See, e.g., People v. Wilson (1953), 1 Ill. 2d 178, 188-89, cert. denied (1954), 347 U.S. 928, 98 L.Ed. 1080, 74 S.Ct. 530; see generally McCormick, Evidence sec. 251, at 603 (2d ed. 1972); Comment, Hearsay Witnesses’ Prior Statements, and Criminal Justice in Illinois, 1974 U. 111. L.F. 675 (1974).) In People v. Cook (1965), 33 Ill. 2d 363, 371, we recognized the significance of identification evidence:
“ ‘We have consistently approved and regarded as convincing evidence the fact that the victim of a crime has identified the defendant from a photograph or a police line-up.’
We find equally convincing the evidence of a description given to the police shortly after the commission of the crime and the sketch produced therefrom.
“We therefore hold that the trial court did not err in its admission in evidence of the composite sketch. The identification evidence did not constitute impermissible hearsay evidence; the identifying witness Moake testified under oath and was subject to cross-examination as to his out-of-court statements. Furthermore, tire evidence was not admitted as substantive evidence but as prior identification evidence to corroborate the prosecuting witness’ in-court identification of the defendant. As such, it was properly admitted. We reject defendant’s assertion that the discrepancies in the physical description Moake gave to the police shortly after the crime rendered the sketch unreliable. These matters did not concern the admissibility of the evidence, but, rather, concerned the credibility of Moake and the weight to be given the identification evidence.” 81 111. 2d at 574-81.
We believe the rationale of the Illinois Supreme Court expressed in People v. Rogers, 81 Ill. 2d 571, is sound and it is consistent with our holding in State v. Childs, 198 Kan. 4.
The composite was made at the direction of Ms. G and she fully identified the photograph as an accurate depiction of the completed Identi-Kit composite. There was nothing so unduly suggestive relative to the creation of the Identi-Kit composite, as to require its suppression on constitutional grounds.
As for the evidentiary grounds on which exclusion is sought herein, an Identi-Kit composite is not inadmissible hearsay. Rather than substantive evidence, it is prior identification evidence introduced to corroborate the witness’ in-court identification of the accused. The means or manner in which the extrajudicial identification is made relates to the weight and sufficiency of the evidence rather than its admissibility. Following People v. Rogers, 81 Ill. 2d 571; State v. Childs, 198 Kan. 4.
We conclude the district court erred in excluding the photograph of the Identi-Kit composite.
III. DID THE DISTRICT COURT ERR IN GRANTING DEFENDANT’S MOTION TO SUPPRESS THE ALLEGED VICTIM’S PRETRIAL PHOTOGRAPHIC LINEUP IDENTIFICATION BECAUSE THE PROCEDURES EMPLOYED BY THE POLICE IN THE LINEUP WERE SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION?
On July 16, 1981, slightly more than two months after the alleged rape and sodomy, Ms. G went to the Douglas County Judicial and Law Enforcement Center to view a photographic lineup. The photographs were of eight black males who were quite similar in appearance. In fact, when first shown the photographs Ms. G commented to the effect, “You’re not making it easy.” After several minutes of studying the photographs, Ms. G picked out defendant’s photograph and said she thought that man was her attacker, but she was not one hundred percent sure. Ms. G apparently knew there was a man in custody on a rape charge who had the missing keys.
At the preliminary hearing held in late July, 1981, Ms. G was asked, on direct examination by the State, about the attack upon her and then asked if she could identify her attacker. Although what transpired is set forth earlier in this opinion, we repeat the following excerpt from the preliminary hearing transcript for convenience:
“Q. Could you describe or give the description of what the person looked like?
“A. Well, he was — he just looked like a medium height man, medium weight, muscular, kind of trim, not fat and not thin. A real full round face was one thing that I noticed.
“Q. Okay. I’d like you to look around the courtroom and I’ll ask you if the person that’s in the courtroom that put you in the car that night at knifepoint.
“MR. HEEB: Objection, Your Honor, she stated that she never did see the individual and never saw the individual’s face. There’s no — there’s no background or foundation to believe that she can make any kind of an identification.
“THE COURT: It’s still a proper question. Objection is overruled.
“A. Well I never saw a good full front view, but I do think it’s him (indicating).
“Q. Okay. You mean the person sitting over here in the gray-green overalls?
"A. Right.
“Q. Okay. Let the record reflect that the witness has identified the defendant. Why do you feel that it was him? What is it about him that makes you feel that way?
“A. Well, it looks like him. Like I told you that if you put me in a room with fifty people I probably wouldn’t be able to pick him out.
“Q. Okay.'
“A. Out of a crowd like that.
“Q. Okay.
“MR. HEEB: Your Honor, I move to strike that identification. It’s obviously based on an in-court situation where there’s a defendant sitting in jail garb and she picked him out and says he looks like the man, but she’s — by her own admission couldn’t pick the man out of a room of fifty people. That’s improper identification and I move to strike that testimony.
“THE COURT: I think the identification is subject to cross-examination. It’s a tentative identification and you can ask all those questions, but it’s still a proper question and the response was proper. Objection is overruled.” (Emphasis supplied.)
On cross-examination defense counsel inquired of Ms. G as follows:
“Q. You’ve testified that you would not be able to identify your assailant in a room of fifty people, is that correct?
“A. Yeah — well, I doubt that I would be able to.”
A year and a half after the preliminary hearing, more than three months after this court’s opinion in Galloway I,232 Kan. 87, and less than one week before trial was scheduled to commence, defendant filed a motion to suppress the State’s photographic lineup evidence on the basis it was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In granting the motion, the district court stated:
“As to the in-court identification and photo lineup. I read again very carefully the quoted testimony from the transcript. It appears to me that the witness has said under oath that If you put me in a room with fifty people I couldn’t pick him out’. Apparently she was shown a lineup or photographic lineup of six people knowing at the time that there was a man in custody, and I gather knowing that something of hers was found with this man. In other words the odds were changed from one to fifty, to one to six. The point I would make is if she can’t pick one out of fifty it’s not fair to make the odds one out of six in order to make an identification or to rehabilitate her testimony. She has apparently said, ‘He looks like the man’. She could take the stand and she can say that. But you can’t go any further with regard to the photographic lineup because she also made it clear although ‘He looks like the man’ she ‘Couldn’t pick him out of a room with fifty people in it’. So the motion in limine on that item is granted.
“MR. HEEB: I’m sorry. I didn’t quite understand. Is there to he no evidence concerning the photo lineup?
“THE COURT: That’s right.” (Emphasis supplied.)
The issue before the trial court was whether the photographic lineup was impermissibly suggestive. It is difficult to see how the witness’ statement relative to her difficulty with in-court identification occurring at the subsequent preliminary hearing has any relevance to the issue.
In Kansas a pretrial identification of a defendant by use of photographs will be suppressed only if the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Chiles, 226 Kan. 140, 143-44, 595 P.2d 1130 (1979); State v. Wilson, 221 Kan. 92, 95, 558 P.2d 141 (1976); State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976).
On cross-examination at preliminary hearing, Ms. G testified relative to the photographic lineup as follows:
“Q. At the time of the picture line-up had you been told by any police officers that items believed to have belonged to you, had been recovered?
“A. No, I didn’t—
“Q. Were you told that the police had a suspect in the case?
“A. Not in this case. For the other rape incident they said that there was one, a suspect in custody for that.
“Q. Okay. What did the officer say to you about that other case and how it related to your case?
“A. That they found the keys, that they traced them back to me after having caught a man for the other rape and that’s how I was connected with it.
“Q. Did they suggest to you that the suspect’s picture toas among those pictures shown to you in the picture line-up?
“A. I guess they never said that. I assumed it would be, but they never told me.
“Q. What officer told you about the suspect and the keys in the other case?
“A. Mike Hall, only after I asked him.
“Q. Only after you asked him?
“A. Yeah.
“Q. Okay. And it’s your testimony on direct examination that you were told to look at these pictures and make your best guess as to which picture was of the individual who attacked you, is that your testimony?
“A. Well, the way he put it was look at the pictures and see if you can identify the man who attacked you and if you’re not sure, if you can’t remember, that’s fine. If you can pick him out for sure that’s fine.” (Emphasis supplied.)
The police officer present at the photographic lineup, Detective Mike Hall, corroborated Ms. G’s testimony relative to the photographic identification.
In State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980), this court, in affirming a conviction for aggravated robbery, was confronted with an allegation of suggestive, pretrial photographic identification. In Ponds the detective in charge of the investigation phoned the victim and informed her the police had arrested the man they believed to be the robber. 227 Kan. at 628. The detective then went to the victim’s home and showed seven photographs to the prosecutrix. Two of the photographs were of the defendant, one recent and the other seven years old. The detective, in presenting the photographs asked: “Which one of these men is the one that robbed you? Can you identify any of them as being the one that robbed you?” 227 Kan. at 628. On appeal defendant contended the trial court erred in refusing to suppress the prosecutrix’s photographic and subsequent courtroom identification. The trial court ruled the photographic lineup identification was admissible and refused to suppress any future in-court identification. 227 Kan. at 629. The trial court did suppress the prosecutrix’s preliminary hearing identification on other grounds. 227 Kan. at 629. Defendant argued the police procedures, especially the comments of the detective, rendered the photographic identification so impermissibly suggestive as to create a substantial likelihood of misidentification. 227 Kan. at 628. In rejecting defendant’s appeal this court held:
“We have recognized the potential for impermissibly suggestive pretrial identifications. In each case, the totality of circumstances is analyzed to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. See State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980); State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976).” 227 Kan. at 629.
Additionally, the court found no merit in defendant’s contention the photographic lineup was rendered impermissibly suggestive by the detective’s comment the police had a person in custody who they believed had robbed the victim.
“There is nothing unusual or suggestive in a statement that the police have arrested a suspect or in the request to pick ‘the one that robbed you.’ Detective Brown’s confirmation that Ms. Winters’ choice was also the police suspect was not suggestive since it followed the photo identification.” 227 Kan. at 630.
We conclude there was no competent evidence presented upon which the district court could have determined the photographic identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. The order of the district court excluding evidence of the photographic lineup is reversed.
IV. DID THE DISTRICT COURT ERR IN EXCLUDING EVIDENCE OF OBSERVATION BY DEFENDANT’S WIFE OF THE KEYS ON THE BASIS OF MARITAL PRIVILEGE?
K.S.A. 60-423(£>) provides:
“(b) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse.” (Emphasis supplied.)
K.S.A. 60-428(c) provides:
“(a) General rule. Subject to K.S.A. 60-437 and except as otherwise provided in subsections (b) and (c) of this section, a spouse who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife. The other spouse or either his or her guardian or conservator may claim the privilege on behalf of the spouse having the privilege.” (Emphasis supplied.)
On January 27, 1983, the State filed a motion with the district court in which the State sought permission to inquire of defendant’s wife relative to her observation of certain University of Kansas keys recovered at defendant’s residence by Detective Hall while executing a search warrant issued in connection with another crime. During the police investigation, Mrs. Galloway •purportedly made a comment to Detective Hall concerning her observance of the keys at defendant’s residence. Allegedly she had observed the keys over a two to three month period following the alleged rape and sodomy of the prosecutrix. Detective Hall had found the keys in the back of a nightstand drawer which was full of other material. The nightstand was located in a bedroom at the marital residence.
The district court held that no evidence could be introduced relative to the wife’s observation of the keys, based on marital privilege.
Marital privilege is thoroughly discussed in State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). In Newman we held:
“The statutory marital privilege between husband and wife does not extend to all observations of the acts of one spouse by the other. The marital privilege is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another.” Syl. ¶ 3.
The wife’s alleged observation of the keys in the back of a crowded drawer lacks any indicia of a communication. The location of the keys would support an inference of intended concealment and at least establish no intention to transmit or repose confidential information in the wife. The observation alleged herein is clearly outside the ambit of marital privilege.
For the reasons set forth above, the judgment of the Court of Appeals dismissing the appeal is reversed. The judgment of the district court excluding evidence is reversed and the case is remanded for further proceedings. | [
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Whereas, on the 27th day of February, 1984, Charles K. Hyter, an attorney admitted to practice law in the State of Kansas, entered a plea of guilty in the United States District Court for the District of Kansas to one count of felony income tax evasion in violation of 26 U.S.C. § 7201, and
Whereas, the United States District Court for the District of Kansas accepted the plea and found the defendant, Charles K. Hyter, guilty, and
Whereas, on the 2nd day of March, 1984, Charles K. Hyter voluntarily surrendered to the Office of the Disciplinary Administrator his certificate to practice law pursuant to Supreme Court Rule 217, 232 Kan. clxx, and the court, after due consideration, finds that such certificate should be accepted and the said Charles K. Hyter disbarred from the practice of law in the State of Kansas, and
Whereas, there are other complaints of professional misconduct on file and pending in the Office of the Disciplinary Administrator,
Now, Therefore, it is Ordered and Decreed that the privilege of Charles K. Hyter to practice law in the State of Kansas is hereby revoked, the said Charles K. Hyter is hereby disbarred and the Clerk of the Appellate Courts is directed to strike the name of Charles K. Hyter from the roll of attorneys authorized to practice law in the State of Kansas.
It Is Further Ordered and Decreed that all disciplinary proceedings against Charles K. Hyter shall be terminated.
It Is Further Ordered and Decreed that the certificate of Charles K. Hyter to practice law in the State of Kansas is hereby declared cancelled and void and the costs of this action are hereby assessed to Charles K. Hyter.
It Is Further Ordered and Decreed that this order shall be published in the official Kansas Reports and that the Clerk of the Appellate Courts shall comply with the requirements of Rule 217.
By Order of the Court dated and effective this 6th day of March, 1984. | [
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The opinion of the court was delivered by
Lockett, J.:
The defendants, Clifford M. Randle, Mary E. Randle and Raymond Randle (appellants) appeal from the district court’s judgment against them. The district court found that the defendants had been unjustly enriched $25,000.00 at the expense of the plaintiff, Minter-Wilson Drilling Co., Inc. (M-W). M-W cross-appeals contending the amount of the judgment was inadequate.
The Randles are co-owners of property in Finney County, Kansas. From 1969 to 1975 the property was rented out as pasture land. Three quarter-sections of the land were part of a new lease negotiated between the Randles and Rodney Ardery (Ardery) to begin on January 1, 1975, for a term of fifteen years. Ardery was to develop the land so that it was suitable for farming. In addition, Ardery was to drill irrigation wells on the property and install the equipment necessary to irrigate the land at his expense. Ardery would give the Randles 25% of the crops grown on the land.
Ardery negotiated with M-W for the purchase of water pumps and pipe, to drill the wells and install the pumping equipment purchased from M-W on the Randle land. M-W was to drill and equip the wells for a cost of $57,081.00. The cost included $42,170.00 for the equipment installed and the remainder for the drilling of the holes. Ardery paid M-W $14,271.00 as a down payment. Ardery and M-W contracted that the balance due M-W for the drilling arid pumping equipment plus the finance charges was to be paid by Ardery in four annual installments of $14,094.75 each. On January 27, 1975, M-W sold the pumping equipment to Ardery (without retaining a security interest in the equipment). M-W assigned its contract with Ardery to the F.M.C. Corporation Pump Division (FMC). M-W unconditionally guaranteed to FMC the complete indebtedness of Ardery. The Randles did not participate in the negotiations between Ardery and M-W, although they knew M-W had been hired to drill the wells. M-W completed the drilling and installed the pumps on three wells in March, 1975.
Ardery planted crops on the land in 1975, 1976 and 1977. The Randles netted $85.00 from the crop share in 1975. They suffered a loss of $3,300.00 on the property in 1976. In 1977, Ardery had severe financial problems and was unable to secure financing to plant that year’s crops. Raymond and Clifford Randle signed a loan guaranty for Ardery with the State Bank of Satanta (Bank), so that Ardery could borrow $165,000.00 needed to plant a crop in 1977. The Bank took the 1977 crop as security for its loan. The value of the 1977 crop, when harvested; was $24,600.00 short of the loan amount and the Randles were still paying on this loan on the trial date, January 17, 1983. In 1977, the Randles and Ardery agreed to terminate their farm lease agreement.
The Randles’ property was leased to Ardery’s mother in 1978 and 1979. Because of expenses, the Randles received no crop payments from the tenant. In 1980, the property was leased to another tenant who remained the tenant as of the date of trial in this matter, January 17, 1983.
The Randles and Ardery made a payment of $17,500.00 to FMC in April, 1977. Ardery subsequently defaulted on the contract with FMC with almost $40,000.00 still owing. On June 5,1979, FMC filed an action against M-W for the balance due on the contract with Ardery, which M-W had guaranteed. M-W joined Ardery as a third-party defendant. On October 31, 1979, summary judgment was granted against M-W. M-W paid $40,000.00 to FMC in satisfaction of the judgment on November 26, 1979. Ardery filed a confession of judgment to M-W on December 4, 1979, for $42,000.00.
Some time in December, 1979, M-W’s attorney notified Raymond Randle by letter that M-W had a claim against the Randles for payment for the well equipment it had supplied Ardery. M-W wanted possession of the well equipment or payment for the equipment. Raymond Randle spoke with the secretary-treasurer of M-W in person in January, 1980, concerning the equipment. The M-W officer informed Randle that they expected to be paid for the well equipment or have the well equipment returned to them. The two men discussed the possible purchase of the well equipment. Randle stated he would visit with his brother and sister-in-law, co-owners of the farm property, about the purchase of the equipment. No agreement on the purchase of the equipment was reached between the Randles and M-W. M-W decided to pick up its equipment and notified the Randles of its decision. The Randles would not permit M-W to take the equipment and the Randles claimed an interest in the well equipment because of their farm lease with Ardeiy.
On February 15,1980, M-W filed an action against the Randles seeking payment of their $42,000.00 judgment against Ardery, reasonable use value of the well equipment or the return of the equipment. M-W proceeded on two theories: First, that the Randles had guaranteed Ardery’s contract payments to M-W; secondly, that the Randles were unjustly enriched by their use of the wells without payment. On April 10, 1980, the Randles filed their answer claiming no interest in the equipment M-W sold to Ardery. The Randles filed a third-party petition against Ardery demanding judgment over and against Ardery for any judgment M-W obtained against them.
On September 22, 1980, Ardery filed for bankruptcy in the United States District Court for the District of Kansas listing M-W and the Randles as unsecured creditors. Ardery failed to include the well equipment purchased from M-W as an asset in the bankruptcy. On May 19, 1981, Ardery was granted a “Discharge of Debtor” and thereafter released as a third-party defendant by the trial court.
M-W filed a motion requesting that they be allowed to remove the well equipment. On December 10, 1980, the court ordered the Randles to stop using the wells and equipment involved in the pending action. The order was vacated on September 2, 1981. On April 8, 1982, the Randles moved for summary judgment and the trial court granted the motion for summary judgment on the guarantee theory, but not on the unjust enrichment theory. A trial was conducted to the court on January 17, 1983. The court determined that M-W should have the right to possession of the pumping equipment or a money judgment against the Randles in the amount of $25,000.00. The judge allowed the Randles to choose which judgment should be awarded M-W. The Randles requested the court to award a money judgment to M-W. The court found the Randles had been unjustly enriched in the amount of $25,000.00. The Randles appeal the court’s judgment.
After examination of the record, we have determined that the trial court erred in its judgment. Neither M-W nor the Randles were the owners of the pumping equipment. Therefore, M-W could not obtain a judgment against the Randles for unjust enrichment nor could the Randles be granted title to the pumping equipment.
M-W originally sold Ardery the pumping equipment January 27, 1975. M-W failed to secure any interest in the equipment it sold Ardery. Ardery was only indebted to M-W on his note for the balance of the purchase price and finance charges. On January 27,1975, M-W assigned the note to FMC. When Ardery failed to pay the installments due on the note, FMC filed an action June 5, 1979, against M-W who had guaranteed Ardery’s note. M-W joined Ardery as a third-party defendant claiming Ardery was indebted to M-W under the note. On October 31,1979, FMC was granted summary judgment against M-W. M-W paid $40,000.00 to FMC in satisfaction of the judgment on November 26, 1979. On December 4, 1979, Ardery confessed judgment to M-W for $42,000.00. M-W obtained only a money judgment; it had not claimed nor obtained any interest in the pumping equipment it originally sold Ardery.
The Randles entered into a farm lease with Ardery January 1, 1975. The Randles never claimed any title to the pumping equipment purchased by Ardery and denied any obligation due M-W because of Ardery’s contract with M-W for the purchase of the equipment. The Randles’ only right to the pumping equipment could arise if Ardery failed to give the Randles one-fourth of the crops harvested during the farm lease. The farm lease contained a provision that allowed the Randles an equitable lien on Ardery’s share of the crops or his personal property located on the Randles’ land, if he failed to give the Randles their share of the crops. The Randles received their share of the growing crops each year the lease was in effect and therefore could not claim an equitable lien.
Ardery, the owner of the pumping equipment, filed for bankruptcy. M-W and the Randles were listed as unsecured creditors in the bankruptcy. When Ardery received his discharge in bankruptcy, the M-W judgment claim of $42,000.00, and any equitable claims due the Randles, was legally discharged. Later, when Ardery was dismissed as a third-party defendant in this case, there remained no person claiming ownership of the property that the court could affect with its judgment.
Title to the pumping equipment is actually vested in the bankruptcy trustee. Ardery’s failure to list the equipment as an asset did not deprive the trustee in bankruptcy of the property. Who is entitled to the pumping equipment is not a question for the Kansas courts in this action, but for the United States Bankruptcy Court for the District of Kansas. When a district court has no jurisdiction of the subject matter of the appeal, an appellate court does not acquire such jurisdiction by an appeal from the ruling of the district court. An appellate court may raise the question of jurisdiction on its own motion. When a court is without jurisdiction of the subject matter of an action, its authority in respect thereto extends no further than to dismiss the action. In re Miller, 228 Kan. 606, Syl. ¶ 2, 620 P.2d 800 (1980).
The trial court is reversed and the case is remanded for dismissal for lack of jurisdiction. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a conviction of felony theft (K.S.A. 21-3701). This prosecution arose out of the theft of a 1964 Chevrolet automobile from a used car lot in Pratt which occurred on the night of July 22,1981. The car had no license tag, but a pickup truck on the same lot had a dealer’s tag attached. That tag was also stolen at the same time. The police were notified. On August 21, 1981, a policeman observed the stolen vehicle in Wichita. The dealer’s stolen license tag was on the car. The defendant, Daniel J. Jackson, was driving the vehicle and there was a woman passenger. Defendant’s clothing and personal items were in the car, and he indicated to the police that it was his car.
At the trial, defendant took the witness stand and testified that he had purchased the car for $150 on August 17,1981, from a man he did not know at Caesar’s Palace, a private club in Wichita. Defendant testified that he had been living out of the car and did not know that the car had been stolen. Defendant testified that he was in Derby, Kansas, on the night the car was stolen. He presented no testimony to corroborate his testimony, even though he claimed that he was with a friend on that evening. The defendant offered no documents of title or a contract of sale and presented no witnesses to the sale, even though he testified that a girlfriend and a male friend were with him at the nightclub on the evening he purchased the car. The jury did not believe the defendant’s testimony, and he was convicted.
Following his conviction, the defendant was sentenced to the custody of the Secretary of Corrections. He was evaluated at the Kansas Reception and Diagnostic Center which recommended that he be placed on probation. The defendant was placed on probation on June 2, 1982, on the condition that he reside at Sunrise, Incorporated, an alcoholic treatment center. A motion to revoke probation was filed on August 19, 1982. Defendant was returned to Pratt County for a probation revocation hearing which was held on September 13, 1982. The district court revoked the defendant’s probation and he was placed in the custody of the Secretary of Corrections to serve his original sentence of three to ten years. The defendant took an appeal from his conviction and also from his probation revocation. Defendant Jackson and his court-appointed attorney have filed separate briefs with this court.
The first point on the appeal challenges the sufficiency of the evidence to prove that the defendant was guilty of theft. The evidence presented by the State at the trial is summarized above. The standard for review in a criminal case where it is claimed that the evidence was not sufficient to support a verdict of guilty is this: Whether the evidence when viewed in the light most favorable to the prosecution convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). On appeal, an appellate court does not weigh the evidence and, if the essential elements of the charge are sustained by any competent evidence, the conviction must stand. On the basis of the evidence presented at the trial in this case, we have no hesitancy in holding that the evidence presented by the State was sufficient to sustain the conviction.
The second point raised on the appeal is that the trial court erred by unduly limiting the voir dire examination of the jury by the defendant who appeared pro se. Defendant claims that as a result he was denied a fair trial. We have carefully examined the transcript of the proceedings in this case and concluded that this point has no merit. A trial court has a broad discretion in controlling the voir dire examination in criminal cases. In the absence of a showing of an abuse of discretion and prejudice, the rulings of a trial court limiting a defendant’s voir dire examination of jurors will not be made the basis for a reversal of a case. State v. Lytle, 177 Kan. 408, 280 P.2d 924 (1955). The record discloses that the trial court never limited the scope of the voir dire examination by the defendant except by requiring both counsel to ask questions of the jury collectively and then to follow up with specific questions to individual jurors where applicable. One question asked by the defendant was very confusing and the court suggested that it was not a fair question. The court rephrased the question in a fair and understandable way. The defendant then passed the jury for cause. We find that this point is without merit.
The defendant next complains that the trial court improperly admitted hearsay evidence that the automobile operated by the defendant was suspected of having possibly been used in a burglary. The defendant objected on the grounds of irrelevance, not hearsay, We have considered the record and concluded that the defendant has not shown that the admission was in any way prejudicial so as to deny the defendant a fair trial. The police officer who made the arrest simply testified that, at the time he first observed the vehicle, his partner suggested to him that this was a car on which there was a pick-up order because it was possibly used in a burglary. There was no evidence whatsoever presented that the car had actually been used in another crime. Under the circumstances, we find no reversible error.
The defendant’s fourth point on the appeal is that the trial court erred in denying the defendant’s motion for a continuance after his court-appointed attorney was permitted to withdraw. The record shows that the defendant chose to defend himself. The trial court had previously granted other continuances in the case, and the disposition of the case had been delayed. The trial court obviously found that further delay was not needed. At the time the continuance was denied, the defendant failed to make any showing that a continuance was needed to obtain other witnesses or that he would be prejudiced by trial of the case at the time previously set. The defendant has failed to show that he would have done anything differently than he actually did at the trial. We find no abuse of discretion by the trial court in denying defendant’s motion for a continuance.
The final point raised by the defendant is that the trial court erred in failing to issue subpoenas for defendant’s witnesses to appear at the probation revocation hearing. The record shows that the State moved to revoke the defendant’s probation on August 18,1982. The hearing was set for September 13,1982. On August 30, 1982, the defendant filed a motion requesting the court to issue subpoenas for twenty-nine witnesses. All but one of the witnesses listed were from the Lamed area. At the hearing held on September 13, 1982, the State announced that it was calling three witnesses who had also been subpoenaed by the defendant. At that time, the trial court advised defendant Jackson that subpoenas had not been issued for any of the witnesses listed in his motion. The defendant protested, stating that the witnesses were essential for his defense and that the witnesses subpoenaed were indirectly linked with the allegations upon which the probation revocation hearing was based. The court stated in the record that it could not imagine how twenty-nine witnesses could be used in a probation revocation hearing and that the court felt that defendant was trying to use the procedures and functions of the court for some perverse reason, which was unknown to the court. The probation revocation proceeding then was held, and the defendant’s probation was revoked,
In Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972), the United States Supreme Court held that the minimum requirements of due process in revoking paroles include, among others, the opportunity to be heard in person and to present witnesses and documentary evidence. K.S.A. 22-3716(2), which governs the procedure at a probation revocation hearing, provides that the defendant shall have the right to present the testimony of witnesses and other evidence on his behalf. In Toman v. State, 213 Kan. 857, 859, 518 P.2d 502 (1974), this court held that the Kansas statute complied with due process requirements as judicially declared in Morrissey.
We have no cases which deal directly with the question whether the State has a duty to subpoena witnesses for a defendant appearing pro se. Here the defendant was representing himself. If the defendant had been represented by counsel, his counsel would certainly have taken the necessary step to insure the appearance of witnesses after defendant filed his motion to subpoena witnesses. If the court felt there was an abuse of process by the defendant, it should have set defendant’s motion for hearing and determined which witnesses could have been of assistance to the defendant at the hearing in light of the charges which were the basis for the probation revocation. In this case, the court summarily denied subpoenas for all the witnesses requested by the defendant and made no attempt to assist defendant in limiting the defense witnesses to those whose testimony might be helpful. It was not until the actual hearing of the case that the court advised defendant that no subpoenas had been issued. Where a defendant appears pro se, a trial court should, if reasonably required, assist the defendant in obtaining subpoenas for defense witnesses, which are necessary for a fair presentation of the defendant’s position at the hearing. Under all the circumstances, we have concluded that defendant was denied a fair hearing and that the order of the court revoking defendant’s probation should be set aside and the case remanded to the district court with directions to afford defendant a new probation revocation hearing so that he can present his witnesses on that issue.
We note that the defendant, in his pro se brief, raises other points which we have considered and find to be without merit.
For the reasons set forth above, the judgment of conviction is affirmed. The order of the district court revoking defendant’s probation is reversed and the case is remanded to the district court with directions to grant defendant a new hearing on revocation of defendant’s probation. | [
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The opinion of the court was delivered by
McFarland, J.:
This case comes before us on a certification from the United States Court of Appeals, Tenth Circuit, under authority of the Uniform Certification of Questions of Law Act, K.S.A. 1982 Supp. 60-3201 et seq.
The two certified questions are:
I. WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE?
II. DO STAFF DOCTORS AS, DISTINGUISHED FROM THE SUPERINTENDENT OR HEAD OF THE HOSPITAL OR INSTITUTION, HAVE LEGAL IMMUNITY UNDER KANSAS LAW FROM CIVIL LIABILITY RESULTING FROM A RELEASE OR FAILURE TO WARN OF THE RELEASE OF A DANGEROUS PATIENT?
The factual background giving rise to the litigation may be summarized as follows. On December 25,1973, Butler and Carol Elliott returned to their Hutchinson, Kansas, home after a few days’ absence. As they walked into their home, the Elliotts were confronted by their nineteen-year-old grandson, Bradley Durflinger, who was armed with a hatchet and a meat fork. It was Bradley’s intention to kill his grandparents and steal their automobile. The planned attack was averted. The following day Butler Elliott filed a petition in the probate court of Reno County, Kansas, seeking commitment of Bradley to a mental hospital on the grounds he was, or probably would become, dangerous to himself or to the person or property of others. Bradley had a history of disciplinary problems. He had run away from home on numerous occasions. His United States Navy service had ended in discharge after he was absent without leave. In March, 1973, Bradley attempted suicide and in November, 1973, Bradley was placed on probation for shoplifting. The probate court found Bradley to be a mentally ill person and ordered he be given care or treatment at the Larned State Hospital in Larned, Kansas.
On January 8, 1974, the Elliotts delivered Bradley to the Larned State Hospital. Bradley was diagnosed by the hospital as having a passive-aggressive personality with sociopathic tendencies. On April 19, 1974, Bradley was discharged from the hospital as being no longer in need of care or treatment. On that day, the Elliotts picked Bradley up at the hospital and a few days later put him on a commercial airliner bound for Oregon in order that Bradley could reside with his parents and siblings. A week after his discharge, Bradley killed his mother (Margaret Durflinger) and his younger brother (Corwin Durflinger) by shooting each person several times with a rifle. Bradley was subsequently convicted of the two homicides and was sentenced to serve time in the Oregon penal system.
On March 25, 1975, this wrongful death action was commenced in the United States District Court for the District of Kansas. The plaintiffs are Irvin L. Durflinger (husband of Margaret and father of Corwin) and Raymond and Ronald Durflinger (sons of Margaret and brothers of Corwin). Defendants named in the action were all doctors employed at Larned State Hospital during the time of Bradley Durflinger’s confinement at that institution. Liability was predicated on the alleged negligent release of Bradley from the hospital. Dr. G. W. Getz was granted summary judgment on the basis that, as superintendent of the hospital, he was a public officer acting pursuant to a special statutory duty when he approved Bradley’s hospital dismissal (K.S.A. 1973 Supp. 59-2924). Dr. Francisco Izaguirre (psychiatrist) was dismissed from the action on the basis of improper service. Dr. Terry Keeley (psychologist) settled with plaintiffs immediately before trial. The present defendants are Dr. Benjamin Artiles (psychiatrist and hospital clinical director), Dr. Preciosa Rosales (attending physician) and Dr. Eduardo Medrano (ward physician). Drs. Rosales and Medrano were members of the hospital team which made the recommendation to Dr. Getz to discharge Bradley. Initially the team tentatively decided Bradley should be transferred to an Oregon mental hospital. This plan would have necessitated he be flown to Oregon at the expense of the State of Kansas and be accompanied on the trip by a Larned hospital staff member. Such arrangement would be subject to the approval of the Division of Institutional Management in Topeka. Dr. Artiles, hospital clinical director, sent a note to a member of the hospital team opposing the transfer plan. Subsequently, the recommendation was made simply to discharge Bradley.
The case was tried to a jury which returned a verdict in favor of the plaintiffs in the amount of $92,300. After deducting the Keeley settlement, judgment was entered against Drs. Artiles, Rosales and Medrano in the amount of $67,300. These three defendants then appealed to the United States Court of Appeals for the Tenth Circuit. Numerous issues have been raised in the appeal. Two questions of law have been certified by the federal appellate court to this court as being substantially determinative of the appeal and entirely subject to Kansas law. We have accepted the certification.
We turn now to the first question of law certified to this court for determination. For convenience the question is repeated. WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE?
Preliminarily, some fundamental principles of the law of negligence need to be stated.
Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. See Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 270-71, 294 P.2d 258 (1956). An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441 (1951); and Carrington, Victim’s Rights Litigation: A Wave of the Future?, 11 U. Rich. L. Rev. 447, 461 (1977). In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 221, 662 P.2d 243 (1983). See also Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982); and Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). Robertson v. City of Topeka, 231 Kan. 358, recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law, McIntosh v. Milano, 168 N.J. Super. 466, 495, 403 A.2d 500 (1979); Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. 440, 445, 29 S.E.2d 228 (1944); Tort Law — Duty to Warn — Psychiatrist’s Duty to Warn Parties of Dangerous Patients, 19 Duq. L. Rev. 181, 185 (1980); and Carrington, 11 U. Rich. L. Rev. at 461. Whether the duty has been breached is a question of fact. Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. at 445. Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. Stucky v. Johnson, 213 Kan. 738, 739, 518 P.2d 937 (1974).
In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. 187 Kan. at 440. An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based. 187 Kan. at 441.
At the center of negligence is the concept of the reasonable person. What would a reasonable and prudent person, confronted by like circumstances and exercising reasonable care, have done? In other words, negligence involves acting other than as a reasonable person would do in the circumstances. The reasonable person has been observed to be the epitome of ordinariness, never reckless or absent-minded, yet neither endowed with exceptional courage, foresight or skill. Mellor, The Law, p. 53 (3rd ed. 1966).
The particular area of the law of negligence with which we are concerned herein is that of medical malpractice. Negligence is an essential element of a medical malpractice action. Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960). In Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), we summarized the duties of physicians and hospitals as follows:
“In Tefft v. Wilcox, 6 Kan. 46, 61, this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK, Civil, 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent to or refuse the treatment. [Citation omitted.]
“Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances. See PIK, Civil, 15.02, and cases therein cited.” 220 Kan. at 375.
In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977), this court said:
“A physician or surgeon is expected to have and to exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities; similarly, a hospital is required to exercise that degree of care, skill and diligence used by hospitals generally in the community or in similar communities under like circumstances. Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, and cases cited therein.” 223 Kan. at 3.
See also PIK Civ. 2d 15.01. It should be noted a physician is not a guarantor of good results and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957).
Rules of law governing the duty of physicians and surgeons to their patients apply generally to dentists (Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 [1976]), and to registered nurses (Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 [1974]). The duty of a physician to exercise reasonable and ordinary care and diligence remains the same regardless of the particular medical speciality in which the physician practices. However, the particular decisions and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient’s situation and the medical specialty of the physician. Obviously such diverse medical specialties as dermatology, radiology, pediatrics, surgery, and psychiatry confront the professional practitioner of each with radically different medical problems. However, what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved.
The appellants herein are a psychiatrist and two physicians who were involved in the professional recommendation of the hospital team to discharge Bradley Durflinger on the basis he was no longer in need of care or treatment. They argue, in essence, they and others like them should be insulated from civil liability for their acts, even if negligent, on the basis prediction of dangerousness of a mental patient is too difficult to make and, further, to hold otherwise: (1) would seriously cripple their ability to function professionally, and (2) would have a cata strophic effect on the civil rights of mentally ill persons. We do not agree.
In Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), 83 A.L.R.3d 1166, similar arguments were raised and rejected. Although Tarasoff involved claimed liability for failure to warn rather than for negligent release (the distinction between the two theories to be discussed later), the following rationale of the California court applies with equal force to the therapist’s duty in negligent release cases:
“The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.” 17 Cal.3d at 438.
Continuing:
“We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously, we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise ‘that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional speciality] under similar circumstances.’ (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal. Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-60 [41 Cal. Rptr. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.” 17 Cal.3d at 438. (Emphasis supplied.)
Liability predicated upon negligent release of a patient committed to a mental hospital is a medical malpractice action. Bradley Durflinger was committed by the Reno County Probate Court to the Larned State Hospital upon the finding he was a mentally ill person in need of care or treatment. The statute in effect at the time of the commitment defining “mentally ill person” was K.S.A. 1973 Supp. 59-2902 which provided, in pertinent part:
“(1) The term ‘mentally ill person’ shall mean any person who is mentally impaired, except by reason of mental deficiency only, to the extent that he is in need of ‘care or treatment’ and who is or probably will become dangerous to himself or the person or property of others if not given ‘care and treatment’ and
“(A) who lacks sufficient understanding or capacity to make responsible decisions with respect to his need for ‘care or treatment’, or
“(B) who refused to seek ‘care or treatment’ . . . (Emphasis supplied.)
The petition for commitment alleged Bradley was dangerous to himself or others. The petition was filed by his grandfather the day after Bradley had attempted to kill his grandparents. Clearly he was committed to the hospital because he was dangerous to other persons. The hospital was required to provide care or treatment for Bradley. The “head of the hospital” was required to discharge Bradley when he was “no longer in need of ‘care and treatment’ ” (K.S.A. 1973 Supp. 59-2924), i.e., no longer dangerous to himself or others. The three defendant-physicians were involved in the hospital team recommendation to the head of the hospital (hospital superintendent) that Bradley was no longer in need of care or treatment, i.e. no longer dangerous to himself or others. The making of the recommendation by the physicians to discharge or retain Bradley as a patient was a basic part of their professional employment. This professional duty obviously was for the benefit of Bradley and the public. We find no rational basis for insulating this one aspect of professional service from liability for negligence occurring in the performance thereof. The aforementioned standards for medical malpractice actions are applicable to an action for negligent release of a patient from a mental hospital. In Davis v. Lhim, 124 Mich. App. 291, 335 N.W.2d 481 (1983), the Michigan Court of Appeals held:
“All psychiatrists, whether employed by a state institution or private facility, are subject to a duty to exercise competent, professional judgment in all aspects of treatment of their patients, including the decision to discharge a patient from custodial care.” 124 Mich. App. at 297.
Having reached this conclusion, we could end the discussion. However, we believe it is appropriate to distinguish negligent release from certain other types of third-party actions against physicians for damages done by their mental patients. In these other actions liability is not predicated upon the inherent duty of the physician in the ordinary course of treatment of his patient, but rather that a special relationship existed which required the physician to take some affirmative action outside the regular course of treatment to protect third persons. Such affirmative actions are for the benefit of third parties, not the patient, and involve such steps as notifying a potential victim, calling the police or instituting commitment proceedings.
In Tarasoff, 17 Cal.3d 425, the therapist had knowledge an office patient was dangerous to a readily identifiable third person. He did not warn the third person and the patient murdered her. The California court held the therapist had an affirmative duty to warn the victim, call the police, or take other appropriate action for the victim’s protection.
Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980), involved a situation where a mental patient had been committed to a mental hospital and had been receiving psychiatric care from the Veterans Administration. The patient purchased a shotgun and resumed psychiatric day care treatment from the V.A. for about a month. The patient then stopped the treatment and a month later walked into a nightclub and shot Dennis Lipari to death and seriously wounded Ruth Ann Lipari. The United States was made a party to the action on the basis of negligent failure to detain the patient by seeking commitment. Here again, the duty imposed required the taking of an affirmative action for the protection of a third party, said action not being a part of the already accepted care and treatment of a committed patient such as in the case before us. In order to impose a duty to take affirmative action for the protection of third persons, the courts in both Tarasoff and Lipari adopted the Restatement (Second) of Torts § 315 (1965) and found a special relationship existed which required action to be taken for the benefit of a third person.
The opinion in Lipari discusses in depth the Tarasoff decision as well as adding its own rationale. The opinion further discusses a number of policy considerations also asserted by appellants herein. The relevant portion of the Lipari opinion is set forth in full as follows:
“This Court must therefore determine whether Nebraska law would impose a duty on a psychotherapist to take reasonable precautions to protect potential victims of his patient, when the psychotherapist knows or should know that his patient presents a danger to others.
“Unfortunately, the Nebraska Supreme Court has never addressed the issue of a therapist’s duty to third persons. It therefore becomes the duty of this Court to ascertain what rule of law the Nebraska Supreme Court would adopt in this situation. In making this determination, the Court will consider any Nebraska authority dealing with issues analogous to those raised in this case. The Court will also consider the case law of other jurisdictions, to the extent that it suggests the rule of law which the Nebraska Supreme Court would be likely to adopt. See Hoesing v. Sears, Roebuck & Co., 484 F. Supp. 478, 478-79 (D. Neb. 1980).
“An essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff. Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Under the common law, a person had no duty to prevent a third party from causing physical injury to'another. A number of courts, however, have recognized an exception to this general rule. Under this exception, a person has a duty to control the conduct of a third person and thereby to prevent physical harm to another if
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Restatement (Second) of Torts § 315 (1965). See, e.g., Seibel v. City & County of Honolulu, Haw., 602 P.2d 532, 536 (1979). Since there is clearly no relationship between the V.A. and the persons injured by Mr. Cribbs [patient], the Court will limit its analysis to a discussion of the relationship between Mr. Cribbs and his doctors at the V.A.
“Under the Restatement approach, the psychotherapist-patient relationship has been found to be a sufficient basis for imposing an affirmative duty on the therapist for the benefit of third persons. Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); McIntosh v. Milano, 168 N.J. Super. 466, 403 A.2d 500 (1979). Although the cases recognizing this duty are from jurisdictions other than Nebraska, this Court may be guided by these decisions since they provide a ‘just and reasoned’ analysis of the issues raised in the instant case. See Seedkem, v. Safranek, 466 F. Supp. 340, 343 (D. Neb. 1979). The Court will therefore discuss these decisions in some detail.
“In Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976), the plaintiffs’ complaint alleged that the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapist’s patients. The California Supreme Court’s analysis of whether the complaint stated a cause of action began with recognition of the general rule that one person owes no duty to control the acts of another. However, the court then adopted the Restatement’s special relationship exception to this rule. Applying this exception to the facts before it, the court held that the relationship between the patient and her therapist was sufficient to support the imposition of an affirmative duty on the defendant for the benefit of third persons. Id. at 435, 551 P.2d at 343, 131 Cal. Rptr. at 23. This duty existed even though the defendant therapists did not stand in a special relationship to both the injured party and the person whose conduct created the risk. Id. at 436, 551 P.2d at 344, 131 Cal. Rptr. at 24.
“In support of recognition of this duty, the court noted that in other settings, courts had found doctors and hospitals responsible for the behavior of their patients. Among the cases cited by the Tarasoff court were decisions in which the courts had recognized that a mental hospital may be liable for the negligent release of dangerous patients. Id. at 436 n. 7, 551 P.2d at 343 n. 7, 344, 131 Cal. Rptr. at 23 n. 7, and in which the courts had held that a doctor was liable for his negligence to those contracting a contagious disease from his patient. Id. at 436, 551 P.2d at 344, 131 Cal. Rptr. at 24.
“In McIntosh v. Milano, 168 N.J. Super. 466, 403 A.2d 500 (1979), the New Jersey Superior Court was faced with the issue of whether a psychiatrist had a duty to warn a potential victim of one of his patients of the danger posed by that patient. The McIntosh court adopted the Restatement rule that a defendant has no duty to control the actions of another unless a special relationship had existed between the defendant and either the potential victim or the person whose conduct had created the risk. Id. at 483, 403 A.2d at 508-09. In analyzing the issue of whether the psychiatrist-patient relationship would support the creation of such a duty, the court noted that there were other factual settings in which the physician-patient relationship gave rise to an affirmative duty on the medical professions.
“ ‘[T]he concept of legal duties for the medical profession is not new. A doctor-patient relationship in some circumstances admittedly places a duty to warn others of contagious diseases. New Jersey recognizes the general rule that a person who negligently exposes another to a contagious disease, which the other contracts, is liable in damages. . . . Specifically, a physician has the duty to warn third persons against the possible exposure to contagious diseases, e.g., tuberculosis, venereal diseases, and so forth. . . . That duty extends to instances where the physician should have known of the infectious disease.
“ ‘Physicians also must report tuberculosis, venereal disease and various other contagious diseases, see e.g., N.J.S.A. 26:4-15, as well as certain other conditions.’ Id. at 484, 403 A.2d at 509.
Based on these previously recognized duties, the McIntosh court concluded that the psychiatrist had an affirmative duty to take reasonable precautions to protect potential victims of his patients. In the McIntosh court’s opinion, ‘the relationship giving rise to this duty [could] be found either in that existing between the therapist and the patient, as was alluded to in Tarasoff II, or in the more broadly based obligation a practitioner may have to protect the welfare of the community, which is analogous to the obligation a physician has to warn third persons of infectious or contagious disease.’ Id. at 490, 403 A.2d at 512.
“The Tarasoff and McIntosh decisions provide a well-reasoned framework for analyzing the issue of whether a psychotherapist owes an affirmative duty to persons other than his patient. This Court, however, must determine whether the Nebraska Supreme Court would adopt the Tarasoff-McIntosh analysis.
“The basis for the Tarasoff-Mclntosh rule imposing an affirmative duty on psychotherapists was the courts’ adoption of the special relationship analysis of the Restatement (Second) of Torts § 315. This Court is not aware of any Nebraska case expressly adopting the rule found in the Restatement § 315. However, there are two Nebraska cases which implicitly recognize the special relationship analysis. See Daniels v. Andersen, supra, 195 Neb. at 98, 237 N.W.2d at 400, Rose v. Gisi, 139 Neb. 593, 597-598, 298 N.W. 333, 336 (1941). In these cases, the Nebraska Supreme Court found a duty arising out of the defendant’s relationship with the plaintiff, Daniels v. Andersen, supra, 195 Neb. at 98, 237 N.W.2d at 400, or with the person creating the risk, Rose v. Gisi, supra, 139 Neb. 597-99, 298 N.W. at 336-37. The duty required that the defendant exercise reasonable care in controlling the action of a third person. In light of these Nebraska decisions recognizing an affirmative duty based on a special relationship, this court is of the opinion that the Nebraska Supreme Court would adopt the special relationship analysis found in Restatement § 315.
“Having determined that the special relationship rule is applicable to the instant case, the Court must next consider the issue of whether under Nebraska law the relationship between a psychotherapist and his patient is sufficient to justify imposition of an affirmative duty on the therapist to control the conduct of his patients. Although the Nebraska Supreme Court has never addressed this issue, this Court is of the opinion that the Nebraska court would find that the therapist-patient relationship gives rise to an affirmative duty for the benefit of third persons.
“The existence of this duty is suggested by a passage from a Nebraska case involving the physician-patient privilege. In Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920), the court held that a docfor was not liable to his patient for disclosing the patient’s confidence, when the disclosure was necessary to prevent the spread of a contagious disease. This privilege was based on the fact that ‘[t]he doctor’s duty does not necessarily end with the patient, for on the other hand, the malady of his patient may be such that a duty may be owing to the public and, in some cases, to other particular individuals.’ Simonsen v. Swenson, supra, 104 Neb. at 227, 177 N.W. at 832. From this passage, it may be inferred that under Nebraska law the physician-patient relationship imposes affirmative duties on the physician for the benefit of persons other than the patient. This inference is buttressed by the fact that other jurisdictions have found that a physician owes a duty to persons who may be harmed by their patient’s condition. Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973); Kaiser v. Suburban Transportation System, 65 Wash. 2d 461, 398 P.2d 14 (1965), modified 401 P.2d 350 (1965). See Seibel v. City & County of Honolulu, supra, 602 P.2d at 538.
“Despite this precedent imposing affirmative duties on physicians generally, the United States argues that various policy considerations counsel against the imposition of liability on psychotherapists. The primary thrust of the argument of the United States is that a therapist should not be held liable for the violent outbursts of his patients, because a therapist cannot accurately predict which patients pose a danger to other persons. To support this contention, the United States has submitted to the Court various studies which purport to prove that dangerousness cannot be predicted. The Court, however, is not persuaded that the inherent difficulties in predicting dangerousness justify denying the injured party relief regardless of the circumstances.
“The argument of the United States ignores the fact that psychiatrists and mental hospitals have been held liable for failing to predict the dangerous propensities of their patients. See Hicks v. United States, 511 F.2d 407, 415-17 (D.C. Cir. 1975); Eanes v. United States, 407 F.2d 823 (4th Cir. 1969); White v. United States, 317 F.2d 13, 17 (4th Cir. 1963); Johnson v. United States, 409 F. Supp. 1283, 1292-94 (M.D. Fla. 1976), rev’d on other grounds 576 F.2d 606 (5th Cir. 1978); Greenberg v. Barbour, 322 F. Supp. 745 (E.D. Pa. 1971); Merchants National Bank & Trust Co. v. United States, 272 F. Supp. 409, 417-19 (D.N.D. 1967); Baker v. United States, 226 F. Supp. 129, 132-35 (S.D. Ia. 1964), aff’d 343 F.2d 222 (8th Cir. 1965). Moreover, the Nebraska Supreme Court has imposed on hospitals a duty to guard against their patients’ dangerous mental conditions when the condition is discoverable by the exercise of reasonable care. Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 94-95, 173 N.W.2d 881, 884-85 (1970). See Skar v. City of Lincoln, Neb., 599 F.2d 253, 258 n. 5 (8th Cir. 1979). These cases from Nebraska and other jurisdictions clearly show that the difficulty in predicting dangerousness has not caused the Nebraska Supreme Court or other courts to deny the existence of a cause of action for the negligence of the doctor or hospital.
“The Court recognizes that it may be difficult for medical professionals to predict whether a particular mental patient may pose a danger to himself or others. This factor alone, however, does not justify barring recovery in all situations. The standard of care for health professionals adequately takes into account the difficult nature of the problem facing psychotherapists.
“ ‘Generalizations must be avoided as much as possible in psychiatry. Negligence cannot be imputed to the Hospital merely because of a mistake. A claim of negligence must be considered in light of the elusive qualities of mental disorders and the difficulty of analyzing and evaluating them. Exactitude is often impossible. The Supreme Court has recently noted “ ‘ “the uncertainty of diagnosis in this field and the tentativeness of professional judgment.” ’ Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 100 L.Ed. 412 (1956).’ ” Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Error and uncertainty considered alone must often be accepted without labeling them negligence.
The standard to be applied, however, must take into consideration the uncertainty which accompanies psychiatric analysis. In that area, as we have suggested, negligence may not ordinarily be found short of serious error or mistake, and not necessarily when the error or mistake is serious. The concept of “due care” in appraising psychiatric problems, assuming proper procedures are followed, must take account of the difficulty often inevitable in definitive diagnosis.’ Hicks v. United States, supra, 511 F.2d at 415, 417.
See Tarasoff v. The Regents of the University of California, supra, 17 Cal.3d at 436-37, 551 P.2d at 344-45, 131 Cal. Rptr. at 24-25; McIntosh v. Milano, 168 N J. Super. at 481-83, 403 A.2d at 507-08. Under this standard, a therapist who uses the proper psychiatric procedures is not negligent even if his diagnosis may have been incorrect. Given this protection, the Court is of the opinion that the difficulty in predicting dangerousness does not justify denying recovery in all cases.
“A second policy argument raised by the United States involves the goal of placing mental patients in the least restrictive environment. The United States contends that imposing liability on a psychotherapist would conflict with this goal because therapists would attempt to protect themselves from liability by placing their patients in a restrictive environment. This argument misinterprets the nature of the duty imposed upon the therapist. The recognition of this duty does not make the psychotherapist liable for any harm caused by his patient, but rather makes him liable only when his negligent treatment of the patient caused the injury in question.
“ ‘Modern psychiatry has recognized the importance of making every reasonable effort to return a patient to an active and productive life. Thus, the patient is encouraged to develop his self-confidence by adjusting to the demands of everyday existence. In this view, mental hospitals are not seen as dumping grounds for all persons whose behavior society might find inconvenient or offensive; institutionalization is the exception, not the rule, and is called for only when a paramount therapeutic interest or the protection of society leaves no choice. . . . [Mjodern psychiatric practice does not require a patient to be isolated from normal human activities until every possible danger has passed. Because of the virtual impossibility of predicting dangerousness, such an approach would necessarily lead to prolonged incarceration for many patients who could become useful members of society. It has also been made clear to the Court that constant supervision and restriction will often tend to promote the very disorders they are designed to control. . . . On the other hand, despite the therapeutic benefits of this ‘open door’ approach, the practice admittedly entails a higher potential of danger both for the patient and for those with whom he comes in contact. In deciding the extent to which a patient should be released from, restrictions, the treating physician must exercise his judgment and balance the oarious therapeutic considerations together with the possible dangers.’ Johnson v. United States, supra, 409 F. Supp. at 1293.
See Eanes v. United States, supra, 407 F.2d at 824. Thus, despite the defendant’s protests to the contrary, a psychotherapist is not subject to liability for placing his patient in a less restrictive environment, so long as he uses due care in assessing the risks of such a placement. This duty is no greater than the duty already owing to the patient.
“The United States’ final challenge to recognition of a therapist’s duty to protect third persons concerns the nature of the protection owed. The United States contends that assuming a therapist owes a duty to third persons, this duty is limited to warning potential victims of his patient’s dangerous propensities. This contention is based on the holding in Tarasoff.
“Although the Tarasoff decision concerned only the issue of a therapist’s duty to warn, the language of the case makes clear that the nature of the precautions which must be taken depends on the circumstances.
“ ‘When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances.’ Tarasoff v. The Regents of the University of California, supra, 17 Cal.3d at 430-39, 551 P.2d at 340, 345, 131 Cal. Rptr. at 20-25,
The Court is of the opinion that the approach suggested by this passage from Tarasoff is appropriate. It is not unfair to require the psychotherapist to take those precautions which would be taken by a reasonable therapist under similar circumstances. Moreover, this Court refuses to rule as a matter of law that a reasonable therapist would never be required to take precautions other than warnings, or that there is never a duty to attempt to detain a patient. These issues can only be determined after the parties have had an opportunity to prove what precautions a reasonable psychotherapist would take under the circumstances in issue there.
“To summarize, this Court is of the opinion that under Nebraska law the relationship between a psychotherapist and his patient gives rise to an affirmative duty for the benefit of third persons. This duty requires that the therapist initiate whatever precautions are reasonably necessary to protect potential victims of his patient. This duty arises only when, in accordance with the standards of his profession, the therapist knows or should know that his patient's dangerous propensities present an unreasonable risk of harm to others." 497 F. Supp. at 188-93. (Emphasis supplied.)
Although this court has never formally adopted Restatement (Second) of Torts § 315 (1965), commented on in Lipari, we discussed the concept of special relationship in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). In Robertson we held a police officer was not liable for the acts of an intoxicated person absent some special relationship with or specific duty owed the party injured by the intoxicated person’s acts. 231 Kan. at 363. We observed a special relationship or specific duty has been found when one creates a foreseeable peril, not readily discoverable, and fails to warn. 231 Kan. at 364.
In actions where liability is predicated on negligent release of a patient from a mental hospital, general rules of negligence and medical malpractice control and there is no reason to apply the concept of special relationship and the resulting affirmative duty to take some special step to protect a third party or the public. We are not called upon in this case to decide whether, in Kansas, liability may be predicated upon a therapist’s failure to warn a victim or failure to detain based upon a special relationship and, accordingly, decline to decide such issues in this opinion.
The answer to the first certified question is “Yes” based on the foregoing rationale. We recognize as a valid cause of action, a claim which grew out of a negligent release of a patient who had violent propensities, from a state institution, as distinguished from negligent failure to warn persons who might be injured by the patient as the result of the release. In answering the question presented, we are only concerned with whether a duty exists in such circumstance and if so, what the duty is. We have concluded the duty exists and it is encompassed in the general duties of physicians and surgeons. Whether or not a breach of that duty occurred under the particular facts herein is outside the scope of the question of law presented to us for determination. The second certified question of law is:.
DO STAFF DOCTORS, AS DISTINGUISHED FROM THE SUPERINTENDENT OR HEAD OF THE HOSPITAL OR INSTITUTION, HAVE LEGAL IMMUNITY UNDER KANSAS LAW, FROM CIVIL LIABILITY RESULTING FROM A RELEASE OR FAILURE TO WARN OF THE RELEASE OF A DANGEROUS PATIENT?
As will be recalled the first certified question spoke of “negligent release of a patient” as distinguished from “negligent failure to warn.” Literally in the second question we are being asked to decide the immunity issue as to both negligent release and failure to warn theories of liability. We do not believe however that such literal reading of the question is intended. There is no claim in the case before us predicated upon failure to warn. Further, the immunity issue is not dependent upon which theory liability is predicated. Finally, the certifying court (United States Court of Appeals, Tenth Circuit) has in its certification summarized its own questions as follows:
“The principal issues are those which are set forth above, namely, whether the Kansas Supreme Court would recognize as a valid cause of action a claim for negligent release of a patient from a state hospital or institution, in the context of the facts of this case. And secondly, whether the staff doctors, as distinguished from the hospital, have an immunity similar to that which the trial court applied to the superintendent.”
We therefore will consider the question as relating solely to negligent release in the context of the facts of this case.
The cause of action herein arose before the 1979 enactment of the Kansas Tort Claims Act (K.S.A. 1982 Supp. 75-6101 et seq.) and accordingly, any discussion of the act would be inappropriate in determining this question.
K.S.A. 46-901 (Weeks) was the governmental immunity statute in effect at the pertinent time herein (1974). The statute provided:
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.”
In Kern v. Miller, 216 Kan. 724, Syl. ¶ 2, 533 P.2d 1244 (1975), K.S.A. 46-901 (Weeks) was construed as follows:
“The immunity granted by K.S.A. 46-901(a) is limited to claims against the State of Kansas and its boards, commissions, departments, agencies, bureaus and institutions; and all committees, assemblies and groups authorized to act on behalf of the state. The words ‘members of the classes described,’ appearing in subsection (b) of the statute, are interpreted to mean the various boards, commissions, etc., which make up the classes described in subsection (a), and not the individuals composing the several classes.” (Emphasis supplied.)
The defendant-physicians herein, accordingly have no statutory immunity under K.S.A. 46-901 (Weeks).
In Kern the following general rule was stated:
“Public officers, when performing the duties imposed upon them by statute and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. If public officers act outside the scope of their authority they may be held liable for damages resulting from their acts.” 216 Kan. 724. Syl. ¶ 3.
Public employees as opposed to public officers have no such immunity. The key issue involved in this question is whether staff doctors at a state mental institution are public officers or public employees.
As stated in Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1954), a case involving failure to restrain a suicidal patient:
“It is a general principle that for negligent or tortious conduct, liability is the rule. Immunity is the exception to the rule, created by the courts which have applied it. The law’s emphasis is ordinarily on liability, not immunity for wrongdoing.” 175 Kan. at 762.
See also Noel v. Menninger Foundation, 180 Kan. 23, 299 P.2d 38 (1956). In Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652 (1959), a defendant school custodian contended he was immune from liability for his negligent acts on the basis he was a public officer. In rejecting this claim, we stated:
“In principle as well as in logic, we think that sound public policy requires that a public employee be held accountable for his negligent acts to those who suffer injury by reason of his misconduct, even though he is about the business of his employer (such as here, the school board) which is immune from tort liability under the governmental function doctrine. In other words, the official cloak of immunity should not extend to the negligent employee so as to shield him from answering for his wrongful act by which another has suffered injury.” 184 Kan. at 491.
In Sowers v. Wells, 150 Kan. 630, 95 P.2d 281 (1939), this court was asked what is a “public office” and who is a “public officer”? 150 Kan. at 633. In response the court answered:
“While the authorities are not in complete harmony in defining the term ‘public office,’ or ‘public officer,’ it universally has been held that the right to exercise some definite portion of sovereign power constitutes an indispensable attribute of ‘public office.’ ” 150 Kan. at 633.
See also Steere v. Cupp, 226 Kan. 566, 572, 602 P.2d 1267 (1979). Two years before Sowers, this court in Miller v. Ottawa County Comm’rs, 146 Kan. 481, 71 P.2d 875 (1937), stated:
“The distinction between an officer and an employee is that the responsibility for results is upon one and not upon the other. There is also upon an officer the power of direction, supervision and control. The distinction between a public officer and an employee is concisely made in 22 R.C.L. 379, in the following language:
“ ‘A public office is not the same thing as a contract, and one contracting with the government is in no just and proper sense an officer of the government. The converse is likewise ti-ue and an appointment or election to a public office does not establish a contract relation between the person appointed or elected and the public.’
“In 53 A.L.R. 595 it is stated:
“ ‘It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.’ (See, also, 93 A.L.R. 332.)” 146 Kan. at 484-85. (Emphasis supplied.)
See also 63 Am. Jur. 2d, Public Officers and Employees § 11, p. 634, and generally §§ 1-14; Annot., Distinction between Office and Employment, 140 A.L.R. 1076; and 35 Words and Phrases, Public Officer, pp. 408-14 (1963).
In 63 Am. Jur. 2d, Public Officers and Employees § 1, at p. 625, it is commented:
“A public officer is such an officer as is required by law to be elected or appointed, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law. The duties of such officer do not arise out of contract or depend for their duration or extent upon the terms of a contract.”
Black’s Law Dictionary (5th ed. 1979), has defined public office and public official.
“Public office. Essential characteristics of ‘public office’ are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government; key element of such test is that ‘officer’ is carrying out sovereign function. Spring v. Constantino, 168 Conn. 563, [568-69,] 362 A.2d 871, 875 [(1975)]. Essential elements to establish public position as ‘public office’ are: position must be created by constitution, legislature, or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity. State v. Taylor, 260 Iowa 634, [639,] 144 N.W.2d 289, 292 [(1966)].” p. 1107.
“Public official. The holder of a public office though not all persons in public employment are public officials because public official’s position requires the exercise of some portion of the sovereign power, whether great or small. Town of Arlington v. Bds. of Conciliation and Arbitration, [370 Mass. 769], 352 N.E.2d 914 [(1976)].” p. 1107.
In the case before us Dr. G. W. Getz, superintendent of the Larned State Hospital was granted summary judgment by the trial court on the basis he was a public officer and hence immune from liability. The “Act for Obtaining Care and Treatment for a Mentally 111 Person” (K.S.A. 1973 Supp. 59-2901 et seq.) placed many duties upon Dr. Getz as the “head of the hospital.” Among such duties were authority to discharge a mental patient no longer in need of care or treatment (K.S.A. 1973 Supp. 59-2924); discretionary authority to grant convalescent leave to a patient (K.S.A. 1973 Supp. 59-2924); and authority to command any peace officer or other person to take into custody a patient who was absent from the hospital without leave and to transport same back to the institution (K.S.A. 1973 Supp. 59-2926).
By contrast no similar grants of authority are given to staff physicians who were part of the unclassified service under the Kansas Civil Service Act (K.S.A. 1973 Supp. 76-12a03). K.S.A. 1973 Supp. 76-12a03 provided any physician could be removed by the Director of Mental Health & Retardation Services. Further, the Director was empowered to make all assignments and reassignments of physicians to the institutions. The staff doctors were under the control and supervision of the head of the hospital, Dr. Getz, and the Director of Mental Health & Retardation Services. (K.S.A. 1973 Supp. 76-12a06.)
In Jagger v. Green, 90 Kan. 153, 133 Pac. 174 (1913), Mr. Jagger had been discharged from his position as a field man for the Kansas City health department on the rationale he was a public officer rather than a government employee and therefore not protected by civil service laws. Mr. Jagger brought an action in mandamus to compel the Board of Commissioners for Kansas City to recognize his position was subject to civil service. In holding for Mr. Jagger this court commented:
“The health commissioner is the only person connected with the department of public health who holds a position analogous to an office. The field men are merely subordinate employees who work under his direction and supervision and for whose conduct he is responsible. . . . [T]he field men possess no other authority which rises to the dignity of corporate power officially vested. It is not important that the ordinance uses the term ‘officers’ in one place in speaking of the appointees in the health department. Considering the nature of the service, its relative importance, its essentially subservient character, and the placing of responsibility for results upon a superior who is given full power of direction, supervision and control, it must be held that the plaintiff was not a city officer within the meaning of the statute just referred to.
“Since the plaintiff is not one of the appointive officers or employees excepted from the operation of the civil service act, he is entitled to claim the benefit of its provisions.” 90 Kan. at 158.
In Jones v. Botkin, 92 Kan. 242, 139 Pac. 1196 (1914), a nurse-cell attendant at the state hospital for the criminally insane, was fired by a warden. The warden argued Jones was a public officer serving at the warden’s pleasure. This court held Jones was a public employee of the institution and accordingly, protected by the civil service act.
Although a part of the criminal code, K.S.A. 21-3110 defines “public employee” and “public officer” and hence should be cited herein. K.S.A. 21-3110 provides in pertinent part:
“(18) ‘Public employee’ is a person employed by or acting for the state or by or for a county, municipality or other subdivision or governmental instrumentality of the state for the purpose of exercising their respective powers and performing their respective duties, and who is not a ‘public officer.’
“(19) ‘Public officer’ includes the following, whether elected or appointed:
“(a) An executive or administrative officer of the state, or a county, municipality or other subdivision or governmental instrumentality of or within the state.
“(b) A member of the legislature or of a governing board of a county, municipality, or other subdivision of or within the state.
“(c) A judicial officer, which shall include a judge of the district court, juror, master or any other person appointed by a judge or court to hear or determine a cause or controversy.
“(d) A hearing officer, which shall include any person authorized by law or private agreement, to hear or determine a cause or controversy and who is not a judicial officer.
“(e) A law enforcement officer.
“(f) Any other person exercising the functions of a public officer under color of right.”
Not only are these definitions in effect now but they were also in existence in April, 1974. K.S.A. 1973 Supp. 21-3110(18), (19).
Another set of statutory definitions in effect now and in 1974 is K.S.A. 75-4301 (K.S.A. 1973 Supp. 75-4301), which provides:
“Public office. A position of public trust or agency, created by the Kansas constitution, by statute, by executive decree or by an ordinance or resolution of a municipal or quasi-municipal corporation passed in pursuance of legislative authority.
“Public officer. Any person who holds public office in the state of Kansas, except that an attorney-at-law, acting only in his or her professional capacity, who holds no other public office shall not be construed to be a public officer for the purposes of this act, nor shall such term include any notary public or any person who holds an office in any political party and who holds no other public office.
“Public employee. Any employee of the state of Kansas or any municipal or quasi-municipal corporation, except that an attorney-at-law, acting only in his or her professional capacity, who holds no other public employment shall not be construed to be a public employee for the purposes of this act.”
See also K.S.A. 75-4322(c) - (/) (K.S.A. 1973 Supp. 75-4322[a] - [/])•
We conclude the staff physicians of state mental hospitals are public employees rather than public officers and hence have no common law immunity.
Next defendant-physicians argue they have statutory immunity pursuant to K.S.A. 1973 Supp. 59-2932 which provides:
“Any person acting in good faith and without negligence shall be free from all liability, civil or criminal, which might arise out of acting pursuant to this act. Any person who for a corrupt consideration or advantage, or through malice, shall make or join in making or advise the making of any false application, report or order provided for in this act shall be guilty of a misdemeanor, and punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than one (1) year.” (Emphasis supplied.)
K.S.A. 1973 Supp. 59-2932 was a part of the “Act for Obtaining Care and Treatment for a Mentally 111 Person” in effect in 1974. The statute has not been amended substantively as have so many other sections of the act.
This argument is without merit. The immunity granted by K.S.A. 1973 Supp. 59-2932 is conditioned on the person claiming same having acted in good faith and without negligence. Clearly the statute does not grant immunity for negligent acts and hence is no shield to a cause of action predicated upon negligence.
We conclude the answer to the second certified question is “No.” Staff doctors employed in a state institution, as opposed to the hospital superintendent, have no legal immunity from civil liability resulting from an allegedly negligent release of a mental patient in 1974. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an interlocutory appeal, pursuant to K.S.A. 22-3603, by the State of Kansas from an order of the district court suppressing certain evidence in a prosecution for driving while under the influence of alcohol (DUI) and possession of marijuana.
Defendant, Rick L. Deskins, was arrested after his automobile was stopped by police officers at a roadblock ostensibly set up for the purpose of checking drivers’ licenses. Prior to trial defendant filed a motion to suppress all evidence of DUI and the small bag of marijuana found in the automobile glove-box after defendant’s arrest. The court found the roadblock to be an unconstitutional violation of the Kansas Constitution Bill of Rights § 15, the Kansas equivalent to the Fourth Amendment to the United States Constitution. The trial court found as a matter of fact, and counsel for the State candidly conceded in argument before this court, that the roadblock was set up to catch drunk drivers and that the checking of drivers’ licenses was a facade for such purposes. Therefore, the narrow question before this court is whether the use of a DUI roadblock under the factual situation existing in this case is an unconstitutional infringement upon a person’s right to be free from unreasonable searches and seizures under the Kansas Bill of Rights and the Fourth Amendment, In considering the application of § 15 of the Kansas Bill of Rights to any particular factual situation, its scope is identical to that of the Fourth Amendment. State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963).
At 10:00 p.m. on November 20, 1982, thirty-five to forty police officers from the Kansas State Highway Patrol, the Shawnee County Sheriff s Office, and the Topeka Police Department, set up a roadblock at the intersection of 45th Street and Topeka Avenue in Topeka, ostensibly to check drivers’ licenses. All vehicles proceeding both north and south on Topeka Avenue were stopped and their drivers checked to determine if they were carrying valid licenses. Mr. Deskins was driving south on Topeka Avenue around 1:20 a.m. the next morning, and was stopped in the check lane. A state trooper approached the car and requested Deskins’ license which was found to be in order and at that point he had satisfied all the requirements for the license check.
The officer had not observed the defendant operate the automobile, as it was standing still in a line of stopped vehicles when the officer approached, and the officer, prior to the vehicle being stopped, had no facts or knowledge which would constitute probable cause or even a reasonable suspicion that defendant had committed, was committing, or was about to commit a violation of Kansas criminal statutes. However, from his position outside Deskins’ car, the trooper “could smell a strong odor of alcohol, some type of alcoholic beverage on [defendant’s] breath and his eyes were kind of bloodshot and watery.” The officer asked Deskins to step out of the car to take a sobriety and coordination test. His performance was less than satisfactory to the officer and, as the officer was of the opinion defendant was under the influence of alcohol, he arrested defendant and read him the Miranda rights. The trooper moved defendant to a squad car and another officer, with defendant’s permission, moved his car out of the check lane. While defendant remained in the police car, one of the officers searched the defendant’s automobile and found in the glove-box a plastic bag containing marijuana.
Defense counsel filed a motion to suppress all evidence gathered after defendant’s vehicle was stopped, on grounds the roadblock was designed not to check drivers’ licenses but solely to “stop all vehicles for the purpose of arresting individuals that the police suspected of driving while intoxicated.” Defendant claimed the roadblock stop violated his constitutional rights under the Fourth Amendment. At the hearing on the motion, the arresting officer testified that during a briefing before establishing the roadblock it was made clear to the officers that if, after stopping someone in the lane, they smelled alcohol or had any “suspicion” of drinking, they could question the driver further. The State, as previously indicated, has conceded the primary purpose of the roadblock was to catch drunk drivers, and this appeal will be considered in that light, although incidental to that purpose arrests were also made for a number of other reasons, including some involving license violations.
There can be no doubt that the stopping of a motorist for the sole purpose of checking for a valid driver’s license, let alone to seek evidence of the commission of a crime such as DUI, constitutes a “seizure” under the Fourth Amendment. In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 35 L.Ed. 734, 11 S.Ct. 1000 (1891), the court stated:
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 141 U.S. at 251.
The Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), was faced with a Fourth Amendment challenge to the admission of evidence recovered in a “stop and frisk” encounter between police and defendant Terry. The defendant, while walking on the street, had been stopped by a veteran police officer merely on the officer’s suspicion that Terry and his companions might be considering a robbery. For his own protection the officer patted down the outer clothing of the men and found Terry to be carrying a pistol. Terry was later convicted of carrying a concealed weapon and the case eventually made its way to the Supreme Court on the question of whether his rights under the Fourth Amendment had been violated and whether the evidence recovered in the “stop and frisk” should have been suppressed. In its opinion the Court stated:
“It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16.
In Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), the Court stated:
“The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” 440 U.S. at 653.
In Prouse, upon which the State relies heavily, the court stated the facts in the following manner:
“At 7:20 p.m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser stopped the automobile occupied by respondent. The patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent’s motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver’s license and registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as ‘routine,’ the patrolman explained, T saw the car in the area and wasn’t answering any complaints, so I decided to pull them off.’ . . . The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment.” pp. 650-651.
The Delaware Supreme Court affirmed the trial court and the United States Supreme Court affirmed with only Justice Rehnquist dissenting. The majority opinion, in its conclusion, stated:
“Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers, "p. 663. (Emphasis added.)
In reaching its ultimate conclusion that the random stopping of a motorist without at least some reasonable suspicion that a violation may be occurring violates the Fourth Amendment, the court relied heavily on its earlier opinions in what are referred to as the border patrol cases. The Court stated:
“The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘ “to safeguard the privacy and security of individuals against arbitrary invasions. . . ” (Citations omitted.) Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interest. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.” pp. 653-55.
“We have only recently considered the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, [422 U.S. 873 (1975),] Border Patrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate all warrantless automobile stops upon less than probable cause. Given ‘the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,’ 422 U.S., at 881, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, [392 U.S. 1 (1968),] and held:
‘Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.’ 422 U.S., at 884 (footnote omitted).
Because ‘the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,’ id., at 883, ‘a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.’ Ibid.
“The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, [428 U.S. 543 (1976),] in which we addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic ‘to a virtual, if not a complete, halt,’ 428 U.S., at 546, ata highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol’s checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist’s Fourth Amendment interests:
‘[The] objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of checkpoint stop.’ [428 U.S.] at 558.
Although not dispositive, these decisions undoubtedly provide guidance in balancing the public interest against the individual’s Fourth Amendment interests implicated by the practice of spot checks such as occurred in this case. We cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving-patrol stop on a major highway and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce was not limited to roving-patrol stops on limited-access roads, but applied to any roving-patrol stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See 422 U.S., at 882-883; United States v. Ortiz, 422 U.S. 891, 894 (1975). We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment that that occasioned by a stop by border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety. For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. ‘At traffic checkpoints the motorist can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.’ [422 U.S.] at 894-895, quoted in United States v. Martinez-Fuerte, 428 U.S. at 558.” pp. 655-657.
“When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973); Camara v. Municipal Court, 387 U.S., at 532-533.” p. 661
Thus it is clear that the random stop to check a motorist’s driver’s license without probable cause or at the very least some reasonable suspicion, which a majority of this court approved in City of Overland Park v. Sandy, 225 Kan. 102, 587 P.2d 883 (1978), is a violation of the Fourth Amendment rights of the driver and that holding in Sandy to the contrary has clearly been overruled by Prouse. Since its decision in Prouse, the Supreme Court has not had an opportunity to explore the issue further in the context of vehicle roadblocks.
However, in Brown v. Texas, 443 U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979), the court relied upon part of its Fourth Amendment analysis and approach taken in Prouse. Brown held a Texas statute unconstitutional under the Fourth Amendment where it allowed police to detain a person, and require that person to identify himself, even where the officers lacked probable cause or any reasonable suspicion to believe that defendant was engaged or had engaged in criminal conduct. 443 U.S. at 53. In the course of its opinion, the Court said:
"A central concern in balancing [the competing considerations of public need and individual liberty] has been to assure than an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. (Citations omitted.) To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51.
Several states have considered the issue in connection with driver’s license check roadblocks or in some cases more candidly described as DUI roadblocks. It is obvious, without resort to the record or otherwise, that the problem of the drunk driver is one of enormous magnitude affecting every citizen who ventures forth upon the streets and highways. There can be no doubt that there is an overwhelming public and governmental interest in pursuing methods to curtail the drunk driver. Most states, however, which have considered the validity of roadblocks to “check drivers’ licenses and auto registration” or to check for drunk drivers have found the methods used to be violative of Fourth Amendment rights and as failing to meet the implied tests set forth in the extensive dicta in Prouse. The use of a DUI roadblock has principally two purposes: (1) to apprehend and remove the drunk driver from the streets before injury or property damage results, and (2) in serving as a deterrent to convince the potential drunk driver to refrain from driving in the first place. As a fringe benefit the DUI roadblock also serves to disclose other violations pertaining to licenses, vehicle defects, open containers, etc.
In State v. Olgaard, 248 N.W.2d 392 (S.D. 1976), the South Dakota Supreme Court held “that unless authorized by prior judicial warrant, the establishment of a roadblock for the purpose of investigating all motorists for possible liquor law violations constitutes an unconstitutional seizure within the meaning of the Fourth Amendment.” 248 N.W.2d at 395. In contrast to United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976), the court found that the roadblock in Olgaard was not at a permanent location; there was no notice of the roadblock, “for by its very nature the roadblock was set up to stop without prior warning, and perforce by surprise, all motorists . . .”; and, absent evidence that the decision to establish the roadblock was made by anyone other than officers in the field, “the roadblock in question had certain characteristics of a roving patrol, a type of intrusion into a motorist’s privacy interest that was held unconstitutional in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 .. . .” 248 N.W.2d at 394-95. Although Olgaard was decided before Prouse, the South Dakota court relied heavily on the border patrol cases and recognized some of the same factors later considered in Prouse. The court was concerned with the lack of any permanent location for the roadblock resulting in what it termed “certain characteristics of a roving patrol,” lack of notice and possible abuse of discretion by officers in the field.
Arizona reached the same result in State ex rel. Ekstrom v. Justice Ct. of State, 136 Ariz. 1, 663 P.2d 992 (1983). The Arizona Supreme Court said:
“[W]e cannot agree that the intrusion generated by the Kingman roadblocks was minimal. The record establishes that the Kingman checkpoints involved a not insubstantial amount of discretionary law enforcement activity and that the manner in which the roadblocks were operated was somewhat irregular. The roadblocks were set up at the discretion of a local highway patrolman and were operated without specific directions or guidelines. Officers were uncertain whether they should simply question the occupants of motor vehicles or whether they should seize the opportunity to cursorily search the vehicles for evidence of a violation. Motorists were taken by surprise, not having had prior notice of the location and purpose of the checkpoints. We find present in the Kingman operation the grave danger that such discretion might be abused by the officer in the field, a factor which caused the Court in [Delaware] v. Prouse, supra, much concern.” p. 5.
A scholarly and well-reasoned concurring opinion in Ekstrom explored the conditions under which a roadblock checkpoint might pass constitutional scrutiny, and noted that advance warning of a roadblock by notice on the highway and publicity in the media would not only increase the efficacy of a deterrent roadblock but would also limit the resulting intrusion on individual interests, because those being stopped would anticipate and understand what was occurring.
In Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983), the facts were quite similar to those in the instant case:
“McGeoghegan was in a motor vehicle that had been stopped at a roadblock, that the police asked him for his ‘papers,’ that he showed signs of having been drinking and was taken from his vehicle to a nearby van, where he took and failed a breathalyzer test, and that he was arrested and his vehicle was towed away. It was also agreed that the police had no cause initially to stop McGeoghegan ‘except that he was one ... of two hundred or more motorists that were stopped as they passed the roadblock stoppoint.’
“There are additional undisputed facts. The roadblock was conducted by the Revere police department on North Shore Road and Mills Avenue in that city on the evening of January 15, 1982. This was the result of a plan formulated earlier that day by the police chief and four subordinates. The area of the roadblock was a heavily travelled highway. The main purpose of the roadblock was to detect drunk drivers.” pp. 138-39.
The court, in reaching its conclusion, relied upon findings of the trial court that “the roadblock area was poorly illuminated and unsafe for motorists, that the mechanics of the roadblock were left to the discretion of the officers carrying it out, that the officers used their own discretion in deciding which cars to stop, and that motorists were backed up on the highway for at least two-thirds of a mile.” 389 Mass, at 144.
The Court of Appeals of Texas in Koonce v. State, 651 S.W.2d 46 (Tex. Crim. App. 1983), found evidence recovered in the search of a car at a driver’s license roadblock inadmissible as the State failed to show the initial stop was reasonable under the guidelines of Prouse. The court stated:
“Without evidence that an objective, non-discretionary procedure was being used, we find that the initial stop of appellant’s automobile was unreasonable, and thus, the fruit of that stop and subsequent search was tainted.” 651 S.W.2d at 48.
New Jersey, on the other hand, has taken an opposite position from that of a majority of the states that have confronted the issue. In State v. Coccomo, 177 N.J. Super. 575, 427 A.2d 131 (1980), the court was again faced with a motion to suppress evidence recovered at a driver’s license check roadblock. The roadblock was evidently conducted by township police under a written policy of the Roxbury township police department. The facts were similar to those in the other cases we have discussed except that the procedure was to stop every fifth vehicle while the roadblock was in operation. In distinguishing Prouse the court stated:
“In prohibiting random, discretionary vehicular stops the Supreme Court did not ‘preclude the [states] from developing methods for spot checks that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock type stops is one possible alternative.’ 440 U.S. at 663, 99 S.Ct. at 1041.” 177 N.J. Super. at 581.
The court went on to state:
“No one can deny the State’s vital interest in promoting public safety upon our roads by detecting and prosecuting drunk drivers. These drivers are a threat to other motorists, to pedestrians and to themselves. Unfit drivers should be identified and removed from the highways. However, there is obviously a competing interest to be considered. Whether the practice adopted in Roxbury Township is reasonable depends upon a balancing of the State’s interest in promoting highway safety against the individual motorist’s interest in his expectation of privacy.” 177 N.J. Super. at 582.
The court found that the roadblocks were operated during early morning hours when traffic was light, that the manner of stopping vehicles was done safely and was designed to reduce anxiety on the part of the motorists, that the Roxbury police were following specific, defined standards and that the system was completely objective in its operation. The court held:
“After balancing the State’s strong interest in protecting the public from the substantial risk posed by drunk drivers with the minor inconvenience which may be caused to every fifth motorist and the fleeting, minimal intrusion upon his privacy, the State’s action must be considered as á reasonable infringement upon the motorist’s expectation of privacy. Nor did the stop become overly intrusive when defendant was asked to produce his license and registration. When the initial detention is lawful as it was here, the police may require the driver to produce his driving credentials.” 177 N.J. Super. at 583-84.
In United States v. Prichard, 645 F.2d 854 (1981), the Tenth Circuit Court considered a roadblock operated by two New Mexico state police officers for the avowed purpose of checking drivers’ licenses and vehicle registration. The roadblock was set up with the permission of the officers’ supervisor. All westbound vehicles, except semi-trucks, were to be stopped although when the vehicles began to pile up, the officers waved them on through and did not resume their checking until traffic had cleared. This was evidently a discretionary decision made by the two officers in the field for the purpose of preventing the development of a potentially dangerous and time-consuming accumulation of traffic. The court stated:
“In our view, the roadblock stop of the Ford Bronco does not run afoul of the rule of Prouse. While this may not have been a ‘100% roadblock’ of the type referred to in Prouse, it is nonetheless a long way from the selective, single car stop denounced in Prouse. In the instant case, the New Mexico state police were attempting to stop all westbound traffic on an interstate highway, insofar as was humanly possible. The decision not to stop trucks was reasonable under the circumstances, because, presumably, they had all been stopped at a port of entry. The purpose of the roadblock, i.e., to check drivers’ licenses and car registrations, was a legitimate one. If, in the process of so doing, the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes. See United States v. Merryman, 630 F.2d 780, 782-85 (10th Cir. 1980). Furthermore, allowing all the stopped cars through when traffic became congested was also reasonable and, in our view, nonviolative of the rule of Prouse. In sum, the roadblock stop of the Ford Bronco was, under the described circumstances, constitutional.” pp. 856-57.
The border patrol cases, Prouse and decisions from other state and federal appellate courts make it clear that not every driver’s license check or DUI roadblock is constitutionally impermissible. Certain principles, standards and guidelines may be gleaned from the various decisions. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments, which prohibit searches and seizures of an unreasonable nature. Delaware v. Prouse, 440 U.S. 648, 653, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). The essence of the Fourth Amendment prohibition is to “safeguard the privacy and security of individuals against arbitrary invasions by governmental officials” by imposing a standard of reasonableness upon the exercise of those officials’ discretion. Camara v. Municipal Court, 387 U.S. 523, 528, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967); Prouse, 440 U.S.at 653-54. The governing principle of the amendment is that except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Camara, 387 U.S. at 528-29. Whether a warrant-less search and seizure falls within these limited exceptions is determined by balancing the degree of legitimate governmental interests against the resulting intrusion of the particular law enforcement practice on individuals’ Fourth Amendment rights. Prouse, 440 U.S. at 654. However, as exceptions to the overriding mandate requiring warrants based on probable cause, these “carefully defined classes of cases” permitting warrantless searches and seizures should be construed narrowly to preserve the integrity of the Fourth Amendment.
In applying the balancing test of the degree of governmental or public interest against the degree of intrusion upon the individual’s constitutionally protected rights, the courts have developed a three-factor test or analysis which was stated in Brown as:
“a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50-51.
Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are: (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; (6) 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. Not all of the factors need to be favorable to the State but all which are applicable to a given roadblock should be considered. Some, of course, such as unbridled discretion of the officer in the field, would run afoul of Prouse regardless of other favorable factors.
When the test enunciated in the cases and the foregoing factors are taken into consideration and applied to the DUI roadblock in question does it pass constitutional muster? We think it does. The roadblock in question was a joint effort of the highway patrol, Shawnee County sheriff s office and Topeka police department. Thirty-five to forty officers were briefed ahead of time by supervisory personnel of the Topeka police department. The officers were specifically advised to check for driver’s license violations and signs of drunk driving. The roadblock was established in a well-lighted area of a four-lane highway. Several police cars were utilized, with a car with its red lights flashing located at each of the four corners of the roadblock. The time of detention was minimal, unless violations were noted, and sufficient officers were present to assure minimum intrusion, time-wise. All vehicles going in either direction were stopped and subjected to the license check. The officers in the field had no discretion to pick and choose who would or would not be stopped. The officers were in uniform and readily recognizable as being police officers. The location was selected by supervisory personnel and not the officers in the field.
The Topeka DUI roadblock did not involve the unbridled discretion of the officer in the field which was held oppressive and subject to abuse in Prouse. When we consider the enormity of the injury and damage caused by the drinking driver and the vital interest of every citizen in being protected so far as possible upon the streets and roadways, we find that the public interest in a properly conducted DUI roadblock containing appropriate safeguards outweighs the individual’s right to be free from unfettered intrusion upon his Fourth Amendment rights. The initial stop of the defendant in this case was under conditions which at least met the minimum requirements for a constitutional momentary seizure and, based upon obvious evidence of DUI, the resultant search and seizure in this case was not unreasonable under the Fourth Amendment or the Kansas Bill of Rights.
Due to the seriousness of any warrantless intrusion into an individual’s right to privacy under the Fourth Amendment, we wish to make it clear that the decision herein applies solely to the facts surrounding this particular roadblock. We do not condone blanket, arbitrary exercises of power by governmental authorities which violate Fourth Amendment rights, and any roadblock lacking sufficient standards, guidelines and protec tions of the individual’s right to privacy would run afoul of constitutional protections guaranteed by the Fourth Amendment and the Kansas Bill of Rights. It might well be advisable that minimum uniform standards for the operation of vehicular roadblocks be adopted and established by the legislature or attorney general, rather than leave the determination thereof to local officials.
Having determined that the initial stop or seizure was not constitutionally invalid, the officer had sufficient reason and probable cause to place defendant under arrest when it appeared he was under the influence of alcohol. The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful. State v. White, 230 Kan. 679, 640 P.2d 1231 (1982).
The trial court erred in its suppression of the evidence and the case is reversed and remanded 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 from the dismissal of its cases against Johnny Ray Huff and Roderick Brown at the conclusion of a joint preliminary hearing. Both defendants were charged with aiding and abetting another to commit the crime of aggravated robbery. K.S.A. 21-3205 and 21-3427. Two other defendants, Dwayne Gooch and Freddie Wilson, were separately charged with the commission of the aggravated robbery. All four cases were consolidated for preliminary examination. Gooch and Wilson were bound over and have since entered guilty pleas; neither is a party to this appeal. The sole question is whether the State presented sufficient evidence to have the defendants Huff and Brown bound over for trial.
The facts disclosed at the preliminary examination, concisely stated, were as follows: On the night of April 14,1983, about 9:30 o’clock p.m., Gilbert Porter was tending his liquor store in Leavenworth, Kansas. Two young black men came in and asked for a bottle of Hennessey cognac. One of the men wore what Porter described as a dark peacoat and a stocking cap. Porter procured the bottle, placed it in a bag and told the men it would be $12.47. When he looked up, the men were pointing handguns at him. They demanded cash and received about $195. They fled, taking the money and cognac with them. Porter did not see any car and did not know whether the robbers joined anybody else after they left the store. He immediately reported the robbery.
About thirty minutes later, Officer Fraijo of the Leavenworth police department spotted an automobile with an expired license tag and pulled it over. As he walked toward the car, he saw the front passenger door open and a brown paper bag being ejected. When the bag hit the ground, it sounded like a bottle was inside. The bottle turned out to be Hennessey cognac. There were four men in the car. Officer Fraijo observed two dark coats on the back seat between the two passengers; one coat looked like a peacoat. Since he had heard a report of the robbery, the officer radioed for assistance and the four occupants of the car were arrested. The driver was Huff, who owned the car. Wilson was on the passenger side of the front seat; Brown and Gooch were in the back. A later search of the car produced a number of one dollar bills and some coins, a dark coat, a dark jacket, a stocking cap, and one .25 caliber semiautomatic pistol. The handgun was in the back seat, while ammunition fitting it was found in the glove compartment.
Brown made a statement that he bought the cognac earlier in the evening at the Kohl Liquor Store. His description of the clerk from whom he claimed to have purchased it did not fit the clerk then on duty. Markings on the bottle recovered were identified as those made by the owner of the Porter Liquor Store, not those used at Kohl’s. Huff gave police a statement in which he said he was driving his car with the three passengers when one said that he wanted to get a bottle of liquor. Huff stopped in the parking lot on the south side of Porter’s Liquor Store and Gooch and Wilson went into the store. Very shortly thereafter they ran back to the car with “quite a handful of money,” got into the car and started counting the money. Huff drove away and was stopped later by Officer Fraijo. Defendant Gooch gave a statement in which he admitted that he and Wilson had gone into the store and robbed it, and that later the booty was divided among the four men in the car.
At the close of the hearing, the court said:
“[T]here has been no evidence in this preliminary hearing that either Mr. Brown or Mr. Huff in any way aided, abetted, advised, hired, counseled or procured Mr. Wilson and Mr. Gooch to commit this crime, and in fact there is no evidence that they knew it was going to happen when Mr. Wilson and Mr. Gooch entered the liquor store. Therefore, the Court will discharge those defendants. That does not mean the defendants are not possibly guilty of some other matter which appeared during this preliminary hearing, such as possession of stolen property or aiding a felon, but as far as this case is concerned, the defendants [Huff and Brown] are discharged . , . .”
The nature and purpose of a preliminary examination has been discussed in the recent cases of State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), and State v. Hunter, 232 Kan. 853, 658 P.2d 1050 (1983). In Jones we said:
“If from the evidence it appears to the magistrate that a crime has been committed and there is probable cause to believe the defendant committed a felony, the magistrate binds the defendant over for trial. The proper test is whether there is amply sufficient evidence to support ‘probable cause’ that a crime was committed and that the defendant committed it. State v. Ramsey, 228 Kan. 127, 131-32, 612 P.2d 603 (1980).
“A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963):
“ ‘There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.’ ” 233 Kan. at 172-73.
Probable cause connotes considerably less proof than may be required at trial. As we observed in State v. Hunter, 232 Kan. at 854, the reasonable doubt test has no place in the preliminary examination. The standard to be applied is less strict. State v. Howland, 153 Kan. 352, Syl. ¶ 4, 110 P.2d 801 (1941), defines probable cause as follows:
“The term ‘probable cause’ is defined to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cau tious man in the belief that the person accused is guilty of the offense with which he is charged.”
A federal case which cites Howland also contains a useful discussion of probable cause. In Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973), the court said:
“Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. Proof beyond a reasonable doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty. The gap between these two concepts is broad. A magistrate may become satisfied about probable cause on much less than he would need to be convinced. Since he does not sit to pass on guilt or innocence, he could legitimately find probable cause while personally entertaining some reservations. By the same token, a showing of probable cause may stop considérably short of proof beyond a reasonable doubt, and evidence that leaves some doubt may yet demonstrate probable cause.”
In State v. Jones, 233 Kan. 170, Syl. ¶ 4, we said:
“At the preliminary examination when there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.”
State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983), was an appeal by the prosecution from an order of a trial court in effect finding that no probable cause existed. 233 Kan. at 924. Discussing the burden of the State and the duty of the trial court at preliminary examination, we said:
“The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination. State v. Jones, 233 Kan. 170. A judge reweighing the preliminary examination evidence after arraignment and prior to trial must follow the standard for weighing the evidence as requixed for the preliminary examination. We conclude probable cause was shown.” 233 Kan. at 935.
K.S.A. 21-3205, under which defendants were charged, provides that one is criminally responsible for a crime committed by another if he “intentionally aids [or] abets . . . the other to commit the crime.” The question before the trial judge — and now before us — is whether the circumstances disclosed by the evidence presented were “sufficiently strong in themselves to warrant a cautious man in the belief’ that Huff and Rrown aided and abetted Gooch and Wilson in the commission of the aggravated robbery. Huff was the driver of the automobile. He drove the robbers to the liquor store, parked in a position where his car could not be seen from within the store, waited until Gooch and Wilson committed the robbery, admitted them back into his car with the loot, drove away, and shared in the proceeds. A reasonably cautious man could conclude that Huff served as the “wheel man.” There is ample evidence to show that he knowingly aided and abetted Gooch and Wilson in the commission of the offense. Although mere association with the principals who actually commit a crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor, the knowing association with an unlawful venture and participation in a way which indicates willful furtherance of the success of the venture is sufficient. One who stays in a car, in which he knows the main participants in the crime plan to make their getaway, has been held to intentionally aid and abet in the commission of the crime. See State v. Burton, 235 Kan. 472, _ P.2d _ (1984), and State v. Wilson & Wentworth, 221 Kan. 359, 366, 559 P.2d 374 (1977).
As to defendant Brown, the evidence discloses that he was in the car before, during and after the robbery. He received a portion of the loot; and he gave a false story concerning the origin of the bottle of Hennessey cognac, apparently in an' effort to conceal any connection between the occupants of the car and the Porter Liquor Store robbery. This evidence was sufficient for the purpose of a preliminary examination to show that Brown participated by serving as a lookout while he remained in the car during the robbery. It indicates that he knowingly associated himself with the unlawful venture, aided the active participants, and intended to assist in the success of the crime.
The judgment of the trial court is reversed and the case is remanded with directions to reinstate the complaints against Johnny Ray Huff and Roderick Brown, and for further proceedings in conformity with this opinion. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal from the defendant’s criminal convictions of aggravated burglary, a violation of K.S.A. 21-3716; rape, a violation of K.S.A. 21-3502; aggravated sodomy, a violation of K.S.A. 21-3506; and terroristic threat, a violation of K.S.A. 21-3419. From convictions rendered by a jury on November 10, 1982, defendant appeals.
On the early morning of August 3, 1982, in Junction City, Kansas, the defendant, Eric Vaughn Reeves, entered the residence of Ms. T. The residence at the time was occupied by Ms. T., her daughter, and her sister’s daughter. The victim was asleep in her bedroom while the two children watched TV in the living room. After entering the bedroom, the defendant threatened the victim and then forced her to perform oral sex on the defendant; he attempted to perform anal sex with the victim, raped the victim, and then left the residence. The victim immediately called the police.
The automobile the defendant was driving was stopped by a Junction City police officer within minutes of the rape for traveling at a high rate of speed. While the officer was issuing a citation for speeding, he overheard a dispatch regarding the rape and the description matched the defendant. The officer placed the defendant under arrest and transported him to the residence of the victim where the victim positively identified the defendant as the assailant.
On August 4, 1982, a search warrant for the person of the defendant was executed in which saliva, blood samples, head hairs, and pubic hairs were collected. Additional blood and saliva samples were collected on September 22, 1982.
When the blood and saliva samples were compared with the rape kit, it was determined that the victim was a secreter of her blood type in her other body fluids and the defendant was a nonsecreter. This proved that the defendant was not eliminated as the assailant since he was a nonsecreter.
In addition, hairs of the defendant collected during the search warrant were compared with hairs found on items collected from the victim and her room. One pubic hair found on a blanket displayed the same microscopic characteristics of the pubic hair collected from the defendant.
The jury convicted the defendant on all counts as charged on November 10, 1982. He appeals.
Defendant initially argues that the jury panel assembled for voir dire by telephone was not legally summoned and should have been discharged. At the hearing on defendant’s motion to discharge the panel, the jury clerk testified that in Geary County for each jury term, notice of selection and a jury questionnaire are sent by regular mail to 500 people randomly selected by a computer from the voter registration polls. As the questionnaires are returned, each prospective juror is assigned a number from 1 to 500. If a prospective juror fails to return the questionnaire, a member of the sheriffs office investigates to determine why the questionnaire was not returned. When jurors are needed for a trial, the requisite number of individuals required for a jury panel are contacted by telephone and told to appear on a certain date. If there is no answer when the phone call is made, or if the individual is unable to serve, the jury clerk goes on to the next individual on the list until the proper number of individuals have been orally ordered to appear for jury duty.
The defendant contends that this procedure for notification of selection and assembling the jury panel does not comply with K.S.A. 43-170, which states:
“Whenever names or members of a jury panel or additional names for a jury panel have been drawn, the jury commissioner or jury clerk shall certify the list thereof to the clerk of the court where such panel or additional jurors are to serve. The clerk of such court shall issue proper summons for such persons to appear in such court for jury service on the date and at the time specified by the judge of such court.”
Defendant argues the jury in his case was neither “drawn” nor issued “proper summons” as required by the statute. To properly “draw” a jury, defendant claims that the jury selection must be a random and impartial process, which allegedly was not accomplished due to the telephone “lottery.” We do not agree.
Defendant asserts a proper summons is a written notice either hand delivered by the sheriff or delivered by restricted or first-class mail. Proper summons is not defined in K.S.A. 43-170, the jury selection statute. Defendant cites K.S.A. 1982 Supp. 60-304, requiring written summons to a defendant in a civil case, and K.S.A. 22-2202 requiring written summons ordering a criminal defendant to appear, as authority for his allegation that an equally formal written summons is required for notifying an individual on a jury panel to appear. Other statutes, however, allow oral notice such as notice for a temporary custody hearing when there is insufficient time to give written notice. Here each prospective juror was summoned, i.e., notified by first-class mail of their selection as a possible juror and the procedure of notification to assemble for jury duty, if needed. The procedure here allows for notification of sufficient jurors during the term and contains the flexibility to require attendance of the proper number of individuals selected for jury duty for each case tried during the juror’s term of service.
This court has repeatedly made a distinction between mere irregularity and palpable disregard of the law in improper jury selections. In State v. Campbell, 217 Kan. 756, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975), this court held the statutory jury selection process was “directory in nature and not mandatory, and absent corruption, serious misconduct or palpable disregard of the law, a defendant may not successfully challenge the jury panel for mere irregularities in its selection process.” 217 Kan. at 763. To demonstrate a palpable disregard of the law the appellant must show “a recognizable identifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from jury service.” 217 Kan. at 765. Defendant makes no showing of bias or improper purpose in the method used. Here the jury panel was chosen by a random computer selection from the voter registration polls, and notified of the period each prospective juror was to be available to serve. Use of the telephone “lottery” to inform each prospective juror of the exact day that juror was to appear for service does not violate K.S.A. 43-170.
Defendant’s second and third issues concern the admissibility of the victim’s testimony regarding two prior incidents of contact with the defendant in her home. On July 15,1982, the victim was asleep in her bed. Her boyfriend, who lived with her, was asleep on the couch in the living room. The victim, Ms. T., had been at a small party in her own home earlier that evening and was intoxicated. She awoke to find someone having sexual intercourse with her and assumed it was her boyfriend. When the man got up to go to the bathroom, she saw his profile and realized it was not her boyfriend. The individual then left her home. Ms. T. woke her boyfriend and told him what had occurred but the police were not contacted. One week later Ms. T. was again in bed asleep; this time her boyfriend was in bed with her. At about 12:30 a.m. she was awakened to find a man touching her breast. Her boyfriend awoke and asked what was happening. The man told both Ms. T. and her boyfriend to lie still or he would blow them away. The door to the hall was open and the hall light was on. The man left immediately after speaking. That time Ms. T. called the police and made a report on the breaking and entering. At the trial, Ms. T. could not positively identify the defendant as the person who had entered her home on these two occasions.
On August 3, 1982, when the victim discovered the defendant had entered the room she stated, “Why are you here again,” and the defendant responded “if you make it good this time I won’t come back.”
At the trial Ms. T. identified the defendant as the person who entered her home on August 3, but could not positively identify the defendant as the person who had intruded on the two prior occasions.
The defendant argues the admission of the two prior incidents was improper since the court failed to conduct a hearing outside the presence of the jury to determine the admissibility of those incidents. On the date the trial commenced, prior to the presentation of evidence, and without filing a written motion, defendant’s attorney requested a hearing on a motion in limine to exclude all testimony of the two prior incidents. At the hearing on the motion, defendant claimed (1) since the State had failed to file additional charges arising out of the two prior incidents, they were not relevant; (2) the victim could not positively identify the defendant as the person or persons involved; therefore, the evidence was not admissible under K.S.A. 60-455; and (3) admission of that testimony would be so prejudicial that the defendant could not receive a fair trial. Defendant’s attorney chose not to present evidence, but stated into the record his request that the judge exclude any testimony of each witness which would refer to the two prior incidents. The State argued against the defendant’s motion in limine, but presented no evidence.
Defendant claims when his motion in limine raised a question of the testimony’s admissibility it became incumbent upon the State to present evidence to the trial judge demonstrating relevance, materiality, and admissibility of the questioned evidence, and the State’s failure to proffer the evidence precluded a proper ruling by the trial judge prior to its presentation to the jury.
To protect against prejudice and to assure the parties a fair trial, certain guidelines for use of a motion in limine are set out in State v. Quick, 226 Kan. 308, 312, 597 P.2d 1108 (1979). In Quick the court stated:
“It is important that a proper written motion be filed to pinpoint the material or evidence to be protected against. This is necessary together with an order of the court setting forth the specific basis for exclusion or admission. A mistrial or reversible error on appeal may be avoided by having a proper motion and order drawn and filed. See Proper v. Mowry, 90 N.M. 710, 568 P.2d 236 (1977). We repeat, it is important for the motion to state the specific matter that the movant believes to be inadmissible and prejudicial. The motion should not be general in scope. See Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d at 201.
“When entering the order it should be temporary in nature. It is entered before trial and no one knows exactly what will turn up later during the trial. When a protective order has once been granted the offer of proof during the course of the trial must be made in the absence of the jury. It is possible events during the trial, bearing directly on questions of relevance, may support a change in the protec tive order. See Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). There are instances when a motion in limine may be taken under advisement, reserving the right to rule upon the matter when it arises at trial. See City of Indianapolis, Dept. of Met. Dev. v. Heeter, 171 Ind. App. 119, 355 N.E.2d 429 (1976). Care must be exercised during trial because prejudice may be implanted in the minds of the jurors by asking unanswered questions and by making statements which are subsequently stricken. When such a motion is taken under advisement by the court the matter should not be raised except in the absence of the jury.”
Under the circumstances of this case, the trial judge’s refusal to rule on the defendant’s motion in limine until the evidence was presented during the trial was proper.
Defendant’s next contention is that the evidence of the two prior incidents could not be admitted into evidence under any theory. We do not agree.
Defendant claimed the evidence was only admissible under K.S.A. 60-455 to show identity of the defendant. Prior to admission of this evidence, the trial court did not find that the other crime or crimes were (1) relevant to prove, (2) a material fact that is substantially in issue, and (3) then balance the probative value of the evidence against its prejudicial effect. Therefore, the two prior incidents should not have been admitted to prove identity.
The State presents several theories for admission of the evidence in addition to K.S.A. 60-455 to show identity: (1) testimony about other crimes which are admissible as part of the background and circumstances present when the defendant made damaging admissions which connected him with the crime charged (State v. Schlicher, 230 Kan. 482, 639 P.2d 467 [1982]); (2) acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where the acts are so closely connected with it as to form in reality a part of the occurrence (State v. Gilder, 223 Kan. 220, 228, 574 P.2d 196 [1977]); and (3) evidence of prior acts of a similar nature between the defendant and the victim is admissible independent of K.S.A. 60-455 if the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, orto corroborate the testimony of the complaining witness as to the act charged. See State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982). Admission of the two prior incidents of entry into Ms. T.’s home explains the background underlying the statements of the victim and the intruder. The trial court did not err in admitting evidence of the two prior incidents.
Defendant’s last claim that the charges of making terroristic threats and rape are unconstitutionally multiplicitous is correct. Under the facts of this case the defendant could not be convicted of both rape and terroristic threats.
It is a general principle of law that the State cannot split a single offense into separate parts.- Where there is a single wrongful act, it will not furnish the basis for more than one criminal prosecution when the elements of one crime are included in another. An exception to the general rule is the charge of felony murder. There the elements of one offense are included in the other offense and there can be prosecution for both offenses arising out of a single wrongful act.
Multiplicity was discussed in State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982), and State v. Garnes, 229 Kan. 368, 372-73, 624 P.2d 448 (1981). The court stated:
“ ‘Multiplicity in criminal pleading is the charging of a single offense in several counts. . . . Multiplicity exists when the State attempts to use a single wrongful act as the basis for multiple charges. The general principles for determining whether charges are multiplicitous are these:
“ ‘(1) A single offense may not be divided into sejDarate parts; generally, a single wrongful'act may not furnish the basis for more than one criminal prosecution.
“ ‘(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
“ ‘(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.’ ” 231 Kan. at 162-63.
Here the defendant was convicted of rape and terroristic threat. Roth terroristic threat or rape contain the element of threat or fear to intimidate or overcome the victim’s will to resist the demands of the aggressor. All threats made by the defendant were incidental to the commission of the sexual crimes in this case. The threats were used to induce fear, a required element for the offense of rape.
The judgment of the trial court is affirmed as to the convictions of aggravated burglary, rape and aggravated sodomy. The judgment as to the conviction of terroristic threat is reversed. This case is remanded to the trial court for modification of the sentence in conformance with this opinion. | [
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The opinion of the court was delivered by
Herd, J.:
This is a consolidated action by John M. Lostutter and Robert K. Lostutter, Sr., to enforce the provisions of an oral contract against the Estate of William A. Larkin, deceased, and the W. A. Larkin Revocable Trust. This appeal is from judgment for the estate. We affirm.
William Larkin lived a successful life in Emporia, having overcome the early loss of his parents. At his death, he left a combined probate and trust estate of three million dollars. The appellants, John M. and Robert K. Lostutter, Sr., allege they are each entitled to one-half of the probate and trust estate pursuant to an oral ágreement with William A. Larkin and his wife Esther, made December 25, 1946.
William A. Larkin was born on September 10, 1890, in Caldwell. He was adopted and raised by an aunt and uncle. In 1910, Larkin moved to Emporia where he obtained employment with a local bank. He married Esther Wilhite in 1914. Esther Wilhite had a sister, Florine, who married Frank Lostutter in 1910. Esther and Florine were the daughters of O. M. Wilhite of Emporia. John M. Lostutter and Robert K. Lostutter, Sr., are the sons of Frank and Florine Lostutter and hence nephews by blood of Esther Larkin. The Larkins had no children.
In 1914, after their marriage, the Larkins moved into a house which they built at 1513 Rural Street, Emporia. The Frank Lostutters built a home in 1913 at 1605 Rural Street, and in the same year O. M. Wilhite built a home at 1701 Rural Street. Florine Lostutter continued to live in the Lostutter home until August, 1977, when she moved to a house in Emporia owned by John M. Lostutter. The Larkin family home always remained at 1513 Rural Street. Robert K. Lostutter, Sr., has always lived in Emporia near the Larkin home.
After Larkin’s marriage to Esther, he obtained a bookkeeping position with the Warren Mortgage Company of Emporia. The Warren Company was engaged in making farm loans. Larkin subsequently became vice-president of the Warren Mortgage Company. After World War II, the company changed operations and began selling mutual funds and insurance until it closed in the 1960’s. Larkin retired in the mid-1950’s when he was sixty-four years old.
John Lostutter, after graduating from the University of Kansas Law School in the late 1930’s, obtained a position with the Internal Revenue Service in Washington, D.C., in the Estate and Gift Tax Division. During World War II he served as an Ensign in the U.S. Navy. After leaving the U.S. Navy in 1946, John returned to the I.R.S. He served in the Chicago and Los Angeles offices until 1952.
In an April, 1951, visit to Emporia, John was allegedly told by William A. Larkin he wished him to obtain a position close to Emporia so he would be available to provide investment advice at more frequent intervals. John was thereafter transferred by the I.R.S. to Kansas City, Missouri.
In recent years, John has practiced law in Kansas City, Kansas, and frequently has served as a judge pro tern in the Wyandotte County District Court.
Robert Lostutter, Sr., went to work for the Santa Fe Railroad in 1937, and, except for military service with the U.S. Army between 1944 and 1946, he was employed by that company continuously until his retirement as a conductor in 1972. Since his retirement, Robert has owned and operated a liquor store in Emporia.
For some years John and Robert have also owned and managed a family agricultural operation consisting of about four thousand acres, located in the Emporia area. Their operation is only a short distance from the farm which was owned by William A. Larkin.
The Lostutters contend that on Christmas Day, 1946, William A. Larkin and Esther Larkin entered into an oral agreement with them. Pursuant to the contract John and Robert Sr., were to provide love, affection, entertainment, comfort, companionship, care, maintenance, and advice, in consideration for which William A. Larkin and Esther Larkin agreed to give, devise and bequeath to the appellants all of their property then owned or thereafter acquired.
Over the next thirty-five years, John and Robert, Sr., claim they rendered services to William and Esther Larkin consisting of visits to the Larkins, either by home visit or by telephone. The visits were frequent and lasted from minutes to hours. This claim was corroborated by friends and neighbors of the Larkins. During hospital stays, the Lostutters would arrange for the admittance and dismissal of the Larkins. Often they would stay with them and visit with them during their hospital stays. During the holidays, the Larkins would always be entertained in the homes of the appellants. There were many other occasions in which the appellants would entertain the Larkins with picnics and outings.
William A. Larkin was taken on automobile trips with the appellants to inspect and transact necessary business in connection with his farm real estate holdings in several counties around Emporia.
John Lostutter allegedly provided continuing and regular advice and counsel concerning tax laws, as well as extensive estate planning advice for William Larkin. John claims to have provided Larkin with top quality and unique information on tax matters, due to his position with the I.R.S. John also asserts he provided substantial investment advice due to his exceptional experience in investments.
Esther Larkin died on November 30, 1977, and by the terms of her will she bequeathed her property to the children of the Lostutters. William A. Larkin died on November 12, 1981. His will, dated May 11, 1977, with two codicils, dated January 26, 1978, and May 9,1980, was admitted to probate in Lyon County, Kansas, on December 18, 1981. The estimated value of the probate estate was nine hundred thousand dollars. Appellants discovered in 1981 after Larkin’s death, that William A. Larkin also had created a revocable trust on September 12, 1968. The chief beneficiary of the trust was St. Francis Boys’ Home in Salina. The Lostutters were omitted from both the will and the trust.
Witnesses for the appellees refuted the testimony of appellants. Howard Gunkel, executive vice-president and trust officer of Emporia State Bank and Trust Company, the executor, reviewed all of Larkin’s books, records, and documents at Larkin’s home. Gunkel found no writing evidencing the contract with appellants.
Gunkel testified that after Larkin created the trust in 1968, he received detailed written instructions from Larkin regarding the proper management of the trust. The instructions provided all farm and commercial leases were to be in writing. Larkin often gave Gunkel written directions on other matters relating to the trust.
Roland Bowers, a tenant on Larkin’s farm for over forty years, testified Larkin always insisted on having a written farm lease and there was not a year between 1942 and 1981 that a new written annual lease was not entered into.
In addition to his business interest and activities with Emporia State University Endowment Association and civic organizations, Larkin was very active in the St. Andrews Episcopal Church. Records of his parish reflect his marriage to Esther in the church on May 19, 1914; his confirmation in the church on November 25, 1914; and sixty-seven years of service on various church boards and groups during his adult life. Larkin was a member of the church governing board; senior warden for forty years; treasurer for a number of years and chairman of the church’s building committee.
Larkin and his wife Esther were close friends of Rev. R. H. Mize and his family through their association in the church. Rev. Mize was Esther’s confirmation sponsor and officiated at their marriage. Rev. Mize had two sons, Edward and Robert H. Mize, Jr. Robert was born while his father was rector at St. Andrews.
Robert Mize, Jr., founded St. Francis Boys’ Homes in 1945 with the assistance of friends in Atchison, Emporia, Salina and Topeka. He purchased the former Old Peoples’ Home of Ells-worth County and he and a few boys converted it into the first St. Francis Boys’ Home. An additional Boys’ Home was opened in Saline County shortly after the first home opened in Ellsworth County. In 1965 Mize opened another St. Francis Boys’ Home in New York State. Robert Mize’s original thought in opening the homes was to help in the reeducation of wayward boys. He wanted to make it possible for the boys to associate with normal boys and girls by entering them in the local public schools while they lived in the homes for psychiatric care and counseling. The current St. Francis Boys’ Homes are accredited by the Joint Commission on Accreditation on Hospitals as hospital facilities.
Records at St. Francis Boys’ Homes reflect Larkin was a contributor each year from 1946 until 1979. He was on the mailing list to receive all newsletters and case history reports which reflected seventy-eight percent of the boys in St. Francis Boys’ Homes programs are permanently rehabilitated by their experience at St. Francis.
In 1977, Larkin made a gift of thirty-four acres of land located north of Emporia to St. Francis Boys’ Homes. The director of the Homes testified Larkin took him to the property and told him he would like for a boys’ home to be built on the site, just like the one he had seen in Salina.
William Larkin had a potent reason for his interest in the boys’ home. He had been orphaned at the age of four. He nonetheless became a successful businessman and civic leader, persevering on his own. Fern Clever, a grandniece of Larkin, testified both her uncle and his sister, who was Fern’s mother-in-law, were “overly conscious of being left orphans when they were small.” A family friend and frequent visitor to the Larkin home since 1962, Bobby Jo Dehler, testified Larkin was very interested in young adults.
Jim Meyer, assistant to the president at Emporia State University testified of his relationship with Larkin through the Emporia State University Endowment Association. Meyer was secretary and Larkin was president, chairman of the board, and after 1979, chairman emeritus of the association. In 1976, Larkin apologetically expressed to Meyer the hope that Meyer would not be upset with him because Emporia State University was not going to be the major beneficiary of his estate. Meyer testified:
“He said that he was an orphan, he grew up as an orphan; and when he told me, that was the first time I had ever realized that, and that he wanted to do something very significant for young men that were in the same situation that he was in growing up.”
Fern Clever, the wife of Larkin’s nephew, Bill Clever, testified it was common knowledge in the family that Larkin would leave his property to charity. She told of a conversation in 1941 when Larkin brought a housewarming gift to the Clevers. Larkin said: “Bill, you do it on your own — you’re doing fine — because Esther and I will leave whatever we accumulate to charity .. . .”
Leroy Raynolds, an Emporia attorney who represented the Warren Mortgage Company, had known Mr. Larkin since 1943 and had rendered legal services to him since 1952. He had prepared wills for both Larkins in 1952, 1956 and 1961. Each time they consented to the other’s will. Raynolds’ records showed he prepared two additional wills for William Larkin in 1964 and 1972. The 1964 will made specific bequests to St. Andrew’s Episcopal Church of Emporia, Emporia State University Endowment Association, St. Francis Boys’ Home and the residue to the American Cancer Society. The 1972 will provided for bequests to St. Francis Boys’ Home and the Endowment Association. The church and American Cancer Society were excluded. The 1964 and 1972 estate plans were consistent with that exemplified in the previous wills. In none of the wills did William Larkin devise or bequeath any property to the Lostutters.
James W. Putnam, another Emporia attorney, testified he met Will Larkin through common business interests in the Emporia State Bank and Trust Company. Both served on the trust committee of the Bank, Larkin as chairman and Putnam as a member. After the Bank obtained trust powers, Putnam, at Larkin’s request, prepared the revocable trust together with its amendments. In preparing these documents, Putnam testified there was no discussion about beneficiaries or Larkin’s intended testamentary plan. Rather, “He told me what he wanted done and I put it in legal form and he executed it.”
Robert Symmonds, another Emporia lawyer and former trust officer at Emporia State Bank & Trust Company, testified he prepared Larkin’s last will and testament and its first codicil. Symmonds testified Larkin asked him to draft a will and gave him the necessary instructions.
In 1978, Larkin advised Symmonds of changes he wished to make in his will. Primarily, he wanted to make a provision leaving Fern Clever $25,000. At this conference, Symmonds asked Larkin if there were any other relatives he wanted to make a provision for — specifically Bob Lostutter. Larkin replied the Lostutters were Esther’s relatives, not his. In no conversation or conference with Symmonds did Larkin ever mention the existence of a contract with appellants.
Shortly after Mr. Larkin’s death Gunkel was asked by Robert Lostutter to arrange for a reading of the will. On November 14, 1981, at a memorial service held for Larkin in Emporia, John Lostutter introduced himself to Gunkel. He advised Gunkel he was to be the attorney for the Larkin estate. Gunkel had never met John Lostutter prior to this occasion. At the reading of the will John Lostutter became very upset that he and his brother, Robert Lostutter, were not beneficiaries. James Putnam testified John Lostutter arose in anger and yelled, “That Salina boys’ home got to him. That’s undue influence. We’ll see you in court.”
After the reading of the will, a second meeting was held at John Lostutter’s request. Fern Clever testified this meeting ended with John Lostutter stating, “[T]he will was an ‘asinine will’, and he also said that charity was fine or wonderful but that this was ridiculous and that ‘we’ll do something about the will.’ ”
Evidence also showed William Larkin sought and used the advice of several attorneys and accountants in Emporia. Larkin specifically sought and paid for tax advice. Between March of 1979 and June of 1981, he also paid for the services of a live-in private duty nurse. After the nurse’s employment was terminated, he moved into a rest home in Emporia. The trust paid a substantial sum for Mr. Larkin’s around-the-clock care from June 1,1981, to his death on November 12,1981. Additionally, several friends and neighbors provided a variety of services, without expectation of compensation. Neighbors fixed him lunches, ran errands for him, purchased his groceries, and even spent nights with him when he was afraid to be alone. One neighbor, Marie Markowitz, testified Larkin could not stand to be indebted to anyone. He would carefully reimburse her to the penny for groceries she bought for him but would never overpay her.
The appellants filed petitions on January 4, 1982, contesting the Larkin will. After initially • attempting to include claims against the trustee in the demands filed against the executor, appellants filed a Chapter 60 suit against the trustee on October 1, 1982. The cases were consolidated for trial. On motion of the trustee, the trial court granted summary judgment on all of appellants’ contentions against the trustee except the quasi contract claim for services rendered. The trial court reserved ruling thereon until after presentation of appellants’ evidence. At the conclusion of appellants’ evidence, the trustee renewed its motion for summary judgment, and it was granted. The executor then proceeded with the presentation of its evidence. The case was presented to an advisory jury. It found appellants failed to prove the existence of a contract with the Larkins. The trial court adopted the advisory jury’s verdict.
The first issue is whether the trial court erred in finding there was no contract express, oral, implied in fact or implied in law. The basis of the Lostutters’ case is that on December 25,1946, an oral contract was entered into with William and Esther Larkin whereby the Larkins agreed to leave all of their property “then owned and thereafter acquired” to appellants. In consideration for this contract, appellants were to provide “love, affection, filial attention, entertainment, comfort, companionship, care, maintenance and advice” for the rest of William and Esther Larkin’s lives. The evidence showed appellants provided such services over the years. The appellants assert their services were not intended to be gratuitous; that if at any time they had any idea they were not to be the beneficiaries of William A. Larkin’s property, they would have severed all connections with him forthwith. They fortify their argument by alleging Esther Larkin performed her part of the contract when she bequeathed portions of her property to the children of appellants. Thus, they claim only William Larkin breached the contract. Despite this evidence, there was substantial testimony by other witnesses to refute the existence of the contract. Other witnesses testified that if there had been an agreement, the appellants had not performed their part. To support this there was evidence Mr. Larkin paid for and received tax, accounting, business and legal advice from sources other than appellants, as well as home care. Other witnesses testified they performed many services gratuitously without expectation of compensation. The trial court found there was no contract.
The scope of appellate review of a trial court’s findings of fact is too familiar to require citation of authority. We have repeatedly held a trial court’s factual findings will not be upset by this court if there is any substantial competent evidence to support it, even though controverted. That general rule fits this case with one exception. The findings are more difficult to overcome when, as here, the trial court’s finding of fact is negative. In Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976), we stated a negative finding by a trial court signifies the failure of the party upon whom the burden of proof was cast to sustain it. Absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, the findings of fact of the trial court will not be disturbed.
Here we have no contention the trial court findings were tainted in any way with bias, passion or prejudice. This leaves the only remaining consideration for this court of whether the trial court arbitrarily disregarded undisputed evidence. While the record reveals a course of conduct providing care and attention by appellants to the Larkins, it does not provide undisputed evidence their attention was based upon contract rather than gratuitous acts of love, affection and family ties, as is presumed in such cases. Therefore, while the Lostutters’ attention to the Larkins’ lives is commendable, absent arbitrary disregard of undisputed evidence of a contract we are barred from disturbing the trial court’s ruling. We so hold.
The appellants further contend the trial court erred by requiring them to prove the existence of the contract by clear and convincing evidence, rather than a mere preponderance of the evidence, citing Hoyer v. Cannedy, 4 Kan. App. 2d 228, 604 P.2d 76 (1979). In Hoyer a daughter provided household help and personal care for her mother who was partially incapacitated while recuperating from an accident-caused back injury. The trial court found a contract in fact for compensation for the daughter’s services was proven by a preponderance of the evidence. On appeal, it was argued the correct standard is that of proof by clear and convincing evidence, a much higher standard to meet. The Court of Appeals found the trial court did not err since the evidence was clear and convincing.
Hoyer does not support appellants’ claim of error. Rather, it is supportive of the trial court’s ruling requiring proof by clear and convincing evidence. Further, it is important to note that in Hoyer, the contracting parties were both alive and available to testify, while in the case of a will contest, where one party to an alleged contract is deceased, we have recognized the need for a higher standard of proof. In Jones v. Estate of Cooper, 216 Kan. 764, 766, 533 P.2d 1273 (1975), this court stated:
“In an action for specific performance of an oral contract with a person since deceased, the contract must be established by evidence that is clear and convincing.
“It is not sufficient that the existence of a contract be shown by a preponderance of evidence. This strict requirement is based upon the inherent danger of fraud in claims against the estates of deceased persons.”
The trial court did not err in requiring proof by clear and convincing evidence.
The appellants next argue five areas of the instructions given to the advisory jury were clearly erroneous. Although appellants failed to object contemporaneously to the instructions, they contend they had no opportunity to interpose their objections outside the presence of the jury. The record discloses an instruction conference was conducted by the trial court outside of the hearing of the jury. Appellants’ counsel made no objection to the final instructions presented to the parties at that time. Under K.S.A. 60-251(b), no party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict. The objection when given must distinctly state the matter to which the party objects and the grounds for the objection unless the instruction is clearly erroneous. See also State v. Stafford, 223 Kan. 62, 573 P.2d 970 (1977). Thus, appellants must show the instructions were clearly erroneous to overcome their failure to object. Here the jury was merely advisory with no binding effect on the trial court. See Grannell v. Wakefield, 172 Kan. 685, Syl. ¶ 1, 242 P.2d 1075 (1952). Thus, instructions to it could not be clearly erroneous since any error would be harmless.
Appellants next argue the trial court erred in granting summary judgment on all allegations against the trust and trustee, since discovery was not complete and there were material facts in dispute. They also maintain the granting of summary judgment in the case against the trustee prejudiced the case against the executor, which went to trial.
We have repeatedly stated that summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine.issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 1, 658 P.2d 1004 (1983). The facts which appellants claim are disputed in this case were presented in affidavits by appellants. These include statements that both appellants “faithfully and completely” performed their part of the agreement; that their services were “exceptional and unique”; and the Larkins “accepted without question or reservation all services performed by John M. Lostutter and/or Robert K. Lostutter, Sr.” These are not controverted material facts but rather allegations concerning broad legal conclusions. Additionally, they are immaterial to the issue of whether the alleged agreement permitted William Larkin to give his property to a trust. Neither appellant presented evidence that the alleged agreement precluded trust arrangements. Thus, without evidence controverting Larkin’s ability to establish the trust, the trustee was entitled to judgment as a matter of law.
Appellants also claim summary judgment was improper since discovery was not complete. We have stated that ordinarily a motion for summary judgment should not be sustained so long as discovery is incomplete. See Citizens State Bank v. Gilmore, 226 Kan. 662, 664, 603 P.2d 605 (1979). The incomplete discovery in this case consisted merely of a deposition of Robert Lostutter which was completed but had not been thoroughly corrected at the time of the hearing on the summary judgment motion.
Robert Lostutter’s deposition was taken on January 3, 1983, and was signed, corrected and filed before February 19, 1983. Subsequently, it was discovered several questions and answers had been omitted from the transcript. The transcript was then retyped. Robert Lostutter made additional corrections and it was filed a second time on April 19, 1983. The hearing on the summary judgment motion was held on April 8, 1983. While summary judgment is not proper until discovery is complete, any incomplete discovery must be relevant to the grounds for granting summary judgment. Here it was not. The facts relied upon for granting summary judgment were uncontroverted facts. Although they contained testimony of Robert Lostutter, the uncontroverted facts relied upon were not changed by the corrections filed after the hearing. Thus, the fact the deposition transcript was not complete was irrelevant.
Appellants assert the granting of summary judgment in favor of the trustee prejudiced their case against the executor, which went to trial a short time later. For support of this prejudice, articles concerning the case from the Emporia newspaper are cited.
There is no evidence the jurors were prejudiced or disre garded their oaths of impartiality. They were admonished specifically by the court concerning the trial publicity. There is no evidence they ignored the court’s order. The newspaper articles are factual and unbiased. The appellants failed to show any animosity in the community which prevented them from obtaining a fair trial. At a hearing on a separate motion, appellants raised the issue of a change of venue. The trial judge denied the change since there was no written motion and request for a hearing. The court indicated it would hear the motion if proper procedures were followed. Appellants never carried through with the court’s invitation to file the motion. A trial judge is not required to keep a party in a case when it is entitled to summary judgment, merely because the judgment might receive media coverage. There is no prejudice demonstrated which indicates the granting of the summary judgment to the trustee was improper. This issue is without merit.
The final issue raised by appellants is that they are entitled to a payment for executing the interment authorization of William Larkin. This document serves as authorization to inter Mr. Larkin as well as a hold harmless agreement by the cemetery whereby appellants agreed to indemnify the cemetery for any causes of action arising out of the authorization. Appellants set a $1000 value on their services pursuant to the authorization.
This claim was not asserted at trial and is raised for the first time on appeal. It is a well recognized concept of appellate procedure that a point not raised before the trial court may not be raised for the first time on appeal. See Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983). This issue is not before us on appeal and therefore will not be entertained.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a negligence action involving an intersection collision in Hutchinson, Kansas, in which Gary E. Byram and the City of Hutchinson (defendants-appellants) appeal a jury award of damages in favor of Steven M. Turnbull (plaintiff-appellee). Appellant Byram contends that under the facts presented he was not negligent as a matter of law in operating his vehicle. The City denies negligence, but contends, if the evidence establishes negligence on its part, it is immune from liability under provisions of the Kansas Tort Claims Act (KTCA), K.S.A. 1983 Supp. 75-6101 et seq.
On the morning of November 4, 1981, at approximately 6:55 a.m., a truck driven by Gary Byram collided with one driven by Steven Turnbull at the intersection of Eleventh Street and Highway K-61 in Hutchinson. The overhead traffic control signals, which normally governed traffic traveling through the intersection, were not working because of an incident earlier that morning when an automobile struck and disabled the traffic control box. As a temporary measure the city street department had placed a portable four-way stop sign, equipped with yellow flashing lights, in the middle of the intersection. However, due to heavy fog conditions, visibility was very poor, and the collision involved here resulted.
K-61 and Eleventh Street both have four lanes of traffic at the point where they intersect. K-61 also has two left turn lanes. The overhead traffic control signals had become operational at this intersection only a week before the accident occurred. Prior to that time traffic at the intersection was governed by stop signs requiring east- and westbound traffic on Eleventh to stop and yield the right-of-way to through traffic on K-61. Approximately 60 to 70 feet west of this intersection is the adjacent intersection of Lorraine and Eleventh Streets. Lorraine runs parallel with K-61 to the north of Eleventh Street but does not continue south of Eleventh beyond the intersection. The traffic signals for both intersections were controlled by the control box which had been damaged that morning.
At about 5:30 the morning of the collision a police officer discovered the traffic signals for the two intersections were not operating and summoned a traffic signal technician to the scene. The technician, Frank Gulotta, arrived at approximately 5:50 a.m. and requested that a four-way stop sign and two single stop signs be brought to the intersection. They arrived at 6:20 a.m. Due to the fog, yellow flashing lights were attached to the four-way stop sign which was placed in the center of the K-61 and Eleventh Street intersection. The other two stop signs were used to control traffic at the Lorraine intersection. One was placed on the south side of Eleventh Street to control eastbound traffic entering the intersection, and the other was placed on the west side of Lorraine to control southbound traffic entering the intersection. All three signs were in place by 6:30 a.m. A city employee helping place the signs testified the four-way stop sign could be seen from a distance of 50 feet to the west of the intersection. Mr. Gulotta stayed at the intersection until 6:45 a.m. watching the response of the traffic to ensure the stop signs were adequately controlling the situation. He saw about a dozen cars pass through the intersection during this time and each properly stopped for the stop signs, regardless of the direction from which it approached.
The plaintiff left his home about 6:20 the morning of the collision to go to a nurse’s aid training class scheduled to begin at 6:45 a.m. at the Hutchinson hospital. His route to the hospital required him to travel north on K-61 through the intersection at Eleventh Street. About a quarter mile south of the intersection he could see the traffic signals were not working. He did not see any other type of traffic control devices placed at the intersection, so assumed the prior traffic control system (i.e., that Eleventh Street traffic was required to stop for through traffic on K-61) governed the traffic traveling through the intersection. Without stopping, he passed through the intersection between 6:30 and 6:40 at a speed of 20 m.p.h., watching for east- and westbound traffic. Upon arriving at the hospital he realized he had forgotten his lab coat, so returned home, passing through the intersection again in the same manner. After retrieving his lab coat, it was again necessary for him to pass through the intersection on his second trip to the hospital. He testified he could only see for a distance of ten feet. As he approached the intersection he again looked to his left and right for east- and westbound traffic. Seeing none, he proceeded through the intersection without stopping, traveling at a speed of approximately 20 m.p.h. He did not see the defendant’s truck until it was approximately ten feet away from his vehicle, approaching from his left, or the west. The two trucks collided. He testified he thought the defendant was traveling as fast or faster than he was. He also testified he did not see the four-way stop sign on any of his three trips through the intersection due to the density of the fog. He further testified that on his first two trips through the intersection he did not see any cars traveling on K-61 stop at the intersection, but instead saw several cars pass through the intersection without stopping as he had. He did, however, see one car traveling on Eleventh Street stopped at the intersection.
Gary Byram testified he was eastbound on Eleventh Street approaching the Lorraine Street intersection when he realized the newly installed traffic lights were not functioning. Several yards west of the intersection he saw the stop sign at the Lorraine Streét intersection and the flashers on the four-way stop sign in the middle of the K-61 intersection. He stopped first at Lorraine Street and then proceeded to the second intersection where he clearly saw the four-way stop sign. Once there he allowed two southbound cars stopped on K-61 to proceed across the intersection, and not seeing any other approaching vehicles, he then started into the intersection. He did not see the plaintiff s truck until just prior to the collision. He was traveling 10 to 15 m.p.h. at the time of the impact. He testified he saw three vehicles travel through the intersection prior to when he did, none of which failed to stop at the four-way stop sign.
A police officer who arrived at the scene shortly after the accident occurred testified that due to the fog, visibility was “zero.” He could not tell the flashing object in the middle of the intersection was a stop sign until he was entering the intersection. He determined Byram’s vehicle struck Turnbull’s vehicle in its side. He talked with Byram at the scene and prepared a report later that day indicating Byram had stated he had not seen the stop sign and had failed to stop. However, about a week later he talked with Byram and determined he had misunderstood what Byram had said and revised his report, omitting Byram’s statement about failing to stop. Byram testified he had told the officer he thought the other driver had run the stop sign, and when he discovered the officer had not accurately reported what he had said, he asked the officer to change it. A witness who had driven through the intersection that morning testified that due to the density of the fog the four-way stop sign'was not visible until he had entered into the intersection. Another witness who had driven through the intersection before the four-way stop sign was in place testified visibility was so poor she could see nothing-
In defining the issues prior to trial the parties charged each other with negligence in several respects. The plaintiff alleged Byram was negligent in the operation of his motor vehicle. At trial he testified he felt Byram was negligent because (1) he thought Byram was going as fast or faster than he was when the collision occurred; (2) Byram knew there was a stop sign controlling traffic, whereas he didn’t; (3) the plaintiff had the right-of-way over Byram because he was to Byram’s right in the intersection; and (4) he thought Byram should have been able to see his vehicle approaching the intersection because “it seems easier to see out of fog than to see into the fog.” (The plaintiff testified he was on the outside of the fog bank coming into it and the defendant was in the fog at the time of the collision.) Byram and the City both alleged the plaintiff was at least 50% negligent in the operation of his vehicle for failure to drive within the range of his vision, failure to maintain a proper lookout, driving faster than reasonable under the existing conditions, and failure to stop at a posted stop sign. In addition, the City denied negligence in its answer and asserted that it was immune from liability under 75-6101 et seq. The jury was instructed on the duty to drive within one’s range of vision, the duty of a driver to keep a proper lookout, the duty to drive at a speed reasonable under the existing conditions and to drive at a reduced speed when approaching and crossing an intersection, the duty to stop at a stop sign, and the right of each driver to assume other drivers will obey the law. Other instructions were also given concerning the City’s duties and responsibilities to maintain streets and traffic control devices. The jury was also instructed that the plaintiff could not recover if he was found to be more than 50% at fault. During deliberations the jury asked the court for clarification on this instruction.
The jury assessed the following percentages of fault to the parties: Turnbull - 48%; Byram - 17%; City of Hutchinson - 35%. No special questions were submitted to the jury indicating the basis for finding the parties negligent. This court is therefore guided by the rule that a general verdict resolves all controverted issues in favor of the prevailing party and imports a finding on all issues in a case which are not inconsistent with answers to special questions submitted. Black v. Don Schmid, Motor, Inc. 232 Kan. 458, 474, 657 P.2d 517 (1983).
The appellant Byram contends his negligence, if any, was not the proximate cause of the plaintiffs injuries because the plaintiff s negligence was an intervening cause which was not foreseeable. He argues in his brief:
“No reasonable man can expect a driver to react successfully to a hazard that was invisible a fraction of a second earlier. . . . The facts simply show that there was nothing Gary Byram could have consciously done to avert the accident once the Plaintiff became a visible hazard. Being at the wrong place at the wrong time does not constitute fault when the only warning a party has comes a split second before impact, unless crossing a foggy intersection can be labeled negligent.”
To counter this argument the plaintiff points to evidence presented at trial in support of the verdict that Byram was traveling as fast as 15 m.p.h. when the accident occurred, that the investigating officer’s original report of the accident stated Byram had indicated he had run the stop sign, and that Byram testified he never saw the plaintiffs approaching vehicle until immediately prior to the collision. The plaintiff contends, based upon this evidence and the instructions given, the jury could have found that the defendant was negligent in either failing to stop at the stop sign, failing to keep a proper lookout, failing to drive within his range of vision, or failing to drive his vehicle at a reasonable speed under the circumstances.
In our opinion the negligence of the plaintiff and Byram was a fact question for the jury. The jury’s finding that the plaintiff was negligent is supported by an abundance of evidence, including the plaintiffs own admissions. The uncontroverted evidence in the record establishes the plaintiff saw the traffic lights were not functioning and passed through the foggy intersection without slowing or stopping two times within a matter of minutes prior to his third attempt, to cross the intersection, at which time the accident occurred. He claims not to have seen the four-way stop sign aglow with yellow flashing lights at any time, although it was in place at least by the time he made his second pass through the intersection, and he passed within several feet of it. Every other witness who observed the intersection after the stop sign was in place testified the stop sign was visible at the point where vehicles entered into the intersection, despite the density of the fog. The traffic signal technician testified that while he observed the response of the traffic to the portable signs until ten minutes before the accident occurred, every vehicle which approached the intersection from any direction properly stopped for the stop signs.
Furthermore, the plaintiff did not stop or exercise any appreciable degree of caution in approaching or crossing the intersection on any of his three attempts to do so. He himself testified he could only see a distance of ten feet, yet he felt no need to stop or decrease his speed when approaching what he believed to be a semi-controlled intersection. He claims he looked to his right and left for oncoming traffic, even though according to his own testimony such traffic was impossible to see. His erroneous belief that he had the right-of-way over east and west bound traffic on Eleventh Street did not alleviate his duty to maintain a proper lookout, drive within his range of vision, or drive within a reasonable speed under the circumstances. In addition to attempting to look for oncoming traffic, the plaintiff testified he also lifted his foot off the accelerator when crossing the intersection. This conduct falls short of conforming to the degree of care required of one driving under the circumstances involved here. In short, the evidence is sufficient to establish the plaintiff was negligent in each respect alleged by the defendants: failure to drive within his range of vision, failure to maintain a proper lookout, driving faster than reasonable under the existing conditions and failure to stop at a posted stop sign.
In addition there was sufficient evidence to support the jury’s finding of 17% negligence on the part of Byram. There was evidence that Byram was traveling as fast as 15 m.p.h. when the accident occurred, that Byram did not see the plaintiffs approaching vehicle until immediately prior to the collision, and that the original police report indicated Byram had told the investigating officer he had run the stop sign. Whether the jury gave credence to the explanation which resulted in changing the report is entirely within the province of the jury.
We deem it unnecessary to review the evidence in more detail to determine whether it supports the finding that Byram was negligent. The negligence of the plaintiff and Byram was a fact question for the jury and on the record here presented we cannot say Byram was not negligent as a matter of law.
The appellant Byram also raises an additional issue concerning the propriety of the instructions given by the trial court which has been considered and determined to be without merit.
A more interesting question is presented concerning the involvement of the City of Hutchinson. If the City was negligent and enjoys immunity under the Tort Claims Act, the plaintiff recovers only 17% of his damages. But if the City was not negligent, the comparative negligence between the plaintiff and Byram must be redetermined. The 35% negligence assigned to the City cannot be left dangling; it must be reassigned by the factfinders to the remaining parties.
Accordingly, we shall review the evidence to determine whether the City was negligent in any particular. If, as a matter of law, the City is not negligent, the issue as to the City’s immunity under the Tort Claims Act is moot.
The plaintiff alleges “[t]his case involves a collision on a street as a result of the street defect. The evidence discloses that the defect was a combination of factors, including heavy fog, a malfunctioning traffic control signal, and the City’s failure to exercise ordinary care in addressing these problems.”
It must be noted the legislature has specifically repealed the highway defect statutes. This subject was addressed by our court in Carpenter v. Johnson, 231 Kan. 783, 785, 649 P.2d 400 (1982). Obviously heavy fog, which is a weather condition, cannot be a ground for negligence on the part of a city.
Here a city employee discovered at 5:30 a.m. that the traffic signals for the two adjacent intersections here in question were not functioning. The traffic signal technician for the City was summoned and arrived at 5:50 a.m. He discovered the signal control box had been struck by a vehicle. The controller was “knocked completely off of the pedestal and the cables torn loose.” His immediate assessment was the controller could not be repaired “whatsoever” at that time. Although traffic was light at that time he realized it would increasingly become heavier through the morning rush hour. Within minutes of his arrival he requested a four-way stop sign and two single stop signs be brought to the intersection because “we had to get some type of traffic control out there immediately.” These signs arrived at 6:20 and were in place by 6:30 a.m. Because it was getting foggy he instructed that flashing yellow lights be affixed to the four-way stop sign. He then remained at the intersection until 6:45 a.m. observing the response of the traffic to the stop signs. He chose to place those particular signs at the intersection because “it’s normal procedure when we have a light that is completely out to bring in four-way stop signs or single stop signs, this is normal procedure it has happened in the past and always worked for us, stop signs do work.” He further testified he knows of no manuals or established guidelines concerning the types of devices which should be used in emergency situations such as this one.
The Assistant City Engineer, who is responsible for approving traffic signal plans, testified the Manual on Uniform Traffic Control Devices, which has been adopted by the State of Kansas and the City of Hutchinson (See, e.g., K.S.A. 8-2003 and 8-2005[a]), contains no guidelines relating to emergency situations. He did testify, however, that the manual establishes guidelines for the design and installation of permanent traffic control devices, such as traffic lights at an intersection, and for temporary traffic control devices, such as near a construction area.
The only other consideration that might possibly indicate negligence on the part of the City was the placement of yellow flashing lights on the four-way stop sign at the center of the K-61 - Eleventh Street intersection. Normally the yellow flashing light is designed for caution, not a stop. The red flashing light would indicate the necessity for a stop.
The plaintiff, however, admitted that on his three passes through the intersection he did not see the stop sign or the flashing lights. Thus, the negligence of the City, if any, for the placement of yellow flashing lights instead of red lights could not have Been the proximate cause of plaintiff s injuries. Furthermore, with the admission of plaintiff that he could only see for a distance of ten feet as he approached the intersection, other signs on the side of K-61 where plaintiff was approaching the intersection would not have been seen by the plaintiff and their absence would not be a proximate cause contributing to his injuries.
Based upon the record presented we hold, as a matter of law, the City of Hutchinson was not negligent in any manner, and it did not contribute to the plaintiffs injuries.
Accordingly, the judgment of the lower court is reversed with directions to dismiss the City of Hutchinson and grant a new trial to the remaining parties.
Holmes, J., not participating. | [
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Per Curiam:
Two separate complaints were filed against Respondent Loren Hohman, Jr., an attorney admitted to practice law in the State of Kansas. These two cases are consolidated in this opinion.
In the first complaint, case No. 56,330, the hearing panel made these findings of fact:
“1. Loren Hohman, Jr., is an attorney at law duly licensed to practice law in the State of Kansas and in the United States District Court for the District of Kansas. Respondent is a graduate of West Point and after serving in the Special Forces in Vietnam, he returned to Topeka, Kansas, where he entered law school at Washburn in Topeka and graduated in [1973] with a Juris Doctorate Degree. Respondent subsequently commenced practicing law. In 1972, he was elected to the House of Representatives and served in that capacity until 1980 when he elected not to run for re-election. The majority of respondent’s practice is in the area of real estate law.
“2. Monarch Manufacturing, Inc. was a Kansas corporation engaged in the business of manufacture and retail sale of water beds. Monarch operated retail sales stores in Wichita, Junction City, and Topeka. Richard L. Howard was employed by Monarch as manager of its retail stores. Howard was so employed until December of 1980.
“3. Howard, in his capacity as manager of the retail stores and as agent for Monarch, arranged for radio broadcast advertising from Harris Enterprises, Inc., which operated KTOP (AM) and KDW (FM).
“4. On February 19, 1981, Harris Enterprises commenced legal action against Monarch Manufacturing, Inc. and Richard L. Howard seeking judgment on a debt owed in the amount of $5512.70, Case No. 81-CV-240, District Court of Shawnee County.
“5. Soon after being served with summons, Howard consulted with respondent concerning the pending legal action. Respondent agreed to represent Howard in Case No. 81-CV-240. Howard did not feel he was liable on the debt because at the time the advertising services were ordered, he was acting as an employee and agent, and he contended Harris Enterprises knew that. On March 11,1981, respondent, on behalf of Howard, filed an answer generally denying the allegations of the petition and further asserting the defense that Howard merely acted as an employee of Monarch and was not liable for the debt alleged.
“6. On May 18, 1981, plaintiffs counsel served requests for admissions on respondent pursuant to K.S.A. 60-236. Attached to the requests were copies of printed order forms for the purchase of advertising with KTOP (AM) and KDW (FM). The orders were made out to the account of Monarch Mattress Co. and purportedly signed by Howard. The orders were dated from April 1, 1980, through August 9, 1980. The requests asked the defendant to admit that the documents were authentic, that Howard signed them, and finally asked Howard to admit that he was liable on the debt.
“7. Also on May 18, 1980, plaintiff s counsel filed a motion to dismiss without prejudice against Monarch Manufacturing, Inc., for the reason that Monarch had filed a Chapter 11 Bankruptcy.
“8. The certificate of service on both the requests for admissions and the motion to dismiss the claim against Monarch reflects that the respondent was served with a copy of both these documents.
“9. Respondent testified that he wrote four letters to Richard Howard dated May 28, June 9, July 27, and August 5, 1981. (Respondent’s Exhibits 1 through 4, respectively). All the letters are terse, and request that Howard get in contact with respondent and provide certain unspecified information. The first three letters are addressed to 3241 Randolph, Topeka, Kansas, and the last letter is addressed to 4645 Southwest 8th Street, Topeka, Kansas.
“10. Howard testified that at the time he first contacted the respondent in February or March of 1981, he resided at 4645 Southwest 8th Street. Howard had previously lived at 3241 Randolph, but moved to his address on Southwest 8th Street in October of [1980]. Howard was listed in the Topeka telephone directory at the 4645 Southwest 8th Street address. When Howard moved, he made the necessary arrangements to have the post office forward his mail, and his mail was routinely forwarded. Howard denied that he ever received the letters identified as Respondent’s Exhibits 1 through 4.
“11. Respondent neither answered nor otherwise responded to the requests for admissions, nor did respondent make any requests for an extension of time in which to respond to the requests for admissions, if he thought his prior consultations with Howard did not give him sufficient information to deny that Howard admitted he was liable on the debt.
“12. On September 22, 1981, plaintiffs counsel filed a motion for summary judgment based on the defendant’s failure to respond to requests for admissions. K.S.A. 60-236(a) provides that a matter is admitted unless, within thirty (30) days after service of the request, or within such shorter or longer time as the court may allow, the party upon whom the request is directed serves an answer or objection.
“13. The certificate of service reflects that respondent was served with a copy of plaintiff s motion for summary judgment on the 22nd day of September, 1981. Respondent did not reply to the motion for summary judgment. Howard was not informed that the motion had been filed.
“14. On October 21, 1981, by letter addressed to both respondent and plaintiffs counsel, The Honorable Terry Bullock sustained plaintiffs motion for summary judgment and entered judgment against Richard Howard in the amount of $5,512.70. That judgment was filed October 22, 1981. Respondent did not advise Howard that judgment had been entered against him. Howard did not otherwise learn of that judgment having been entered.
“15. A certified copy of the Court file in Case 81-CV-240 (Complainant’s Exhibit 1) reflects that the plaintiff made application to examine the judgment debtor, and Howard was ordered to appear for a hearing in aid of execution on November 25, 1981. Howard testified that he did not receive a copy of this order and was not advised that he was to appear.
“16. For some unexplained reason, Howard was served with the petition in Case 81-CV-240 a second time. The file reflects that alias summons was issued on December 9, 1981 and that Howard was again served with the petition on December 14, 1981. Howard took the petition to the respondent. Respondent told Howard he would take care of it. Howard testified this was the second time Howard had any contact with respondent in this case, the first being when he initially consulted the respondent after first being served with summons as set out in paragraph 5 supra. Respondent filed an answer to the second petition on January 13, 1982. Both petitions served on Howard were identical, as were both answers filed by the respondent.
“17. Plaintiff again made application to examine Howard, and Howard was ordered to appear at a hearing in aid of execution on February 19, 1982. Howard was served a copy of the order on January 29, 1982, by a sheriff s deputy at his home at 4645 Southwest 8th Street, Topeka, Kansas. Howard for the first time became aware that a judgment might have been entered against him when served with this order.
“18. Immediately after being served with the order as set out above, Howard contacted the respondent and inquired as to what course of action he should take. Respondent advised Howard he would take care of it.
“19. Not having heard from the respondent, on February 18, 1982, Howard contacted respondent about the hearing set for the following day. At this meeting, respondent advised Howard to phone Judge Bullock, tell the Judge that Howard would be out of town, and request a continuance. Howard followed these instructions. Judge Bullock advised Howard that a continuance was agreeable to him if plaintiffs counsel consented. Howard contacted plaintiffs counsel, Vic Miller. Miller advised Howard he needed to talk to the respondent. Howard again contacted the respondent. On this occasion, respondent advised Howard not to worry about the notice to appear and that he would take care of matters.
“20. On March 8, 1982, Howard was served with a citation to appear before Judge Bullock on April 2, 1982, and show cause why he should not be held in contempt for failure to appear as previously ordered.
“21. On or around March 31, 1982, Howard contacted another Topeka attorney, Michael E. Francis, to represent him on matters pending in Case 81-CV-240. Howard advised Francis that he had been represented in this matter by the respondent. Francis arranged a meeting with Howard the following day. On April [1,] 1982, Francis personally contacted respondent to see if he had any objection to Francis representing Howard. Respondent replied that he had withdrawn as counsel in the case and had no objection to Francis representing Howard.
“22. Subsequently on April 1, 1982, Francis met with Howard. After their meeting, both went to the Shawnee County Courthouse and examined the Court file in Case 81-CV-240. The file reflected that the respondent had not withdrawn as counsel. This was the first time Howard was advised as to the status of the case, or was apprised of the requests for admissions, or motion for summary judgment filed.
“23. Subsequently, Francis entered his appearance on behalf of Howard in Case 81-CV-240, and obtained a continuance of the contempt citation hearing. Thereafter, Francis filed a motion to set aside the judgment against Howard, and a memorandum in support. (Complainant’s Exhibit 1) Howard executed an affidavit which was attached to the motion and memorandum. This affidavit is consistent with Howard’s testimony before the Hearing Panel.
“24. Judge Bullock ultimately denied the defendant’s motion to set aside the judgment, and summary judgment against Howard in the amount of $5,512.70 remained in effect. Howard ultimately filed for bankruptcy and this judgment and underlying debt was discharged pursuant thereto.”
The next case, No. 56,100 arose from respondent’s representation of Thomas Roth. The formal disciplinary complaint was filed July 26, 1982, and a disciplinary hearing was held November 22, 1982. The hearing panel recommended respondent be suspended from the practice of law for an indefinite period. The respondent filed exceptions and the matter is now before this court.
On December 27, 1979, respondent’s client, Thomas Roth, suffered injury to his jaw as a result of biting into a plastic object contained in a candy bar. Mr. Roth retained respondent to represent him in an action against the manufacturer of the candy bar. Over the next several months progress on the case was slow. In late November or early December, 1980, Mr. Roth spoke with respondent. Respondent told Roth he would give the manufac turer’s insurance company until December 23, 1980, to settle or he would file suit.
On December 23, 1980, Roth phoned respondent to inquire as to whether a settlement had been reached. Respondent answered by inquiring whether Roth would “settle for $10,000.” Roth told his attorney to “go ahead.” Roth also asked respondent if he should purchase items for Christmas. Respondent allegedly told Roth: “Go ahead and get whatever you want and don’t worry about it.” Respondent denied telling Roth to purchase Christmas presents based upon an imminent settlement.
After that conversation Roth did not hear from respondent. After several unsuccessful attempts to contact him, Roth finally wrote respondent a letter on February 27, 1981, inquiring as to the status of the settlement. He received no response. On March 19, 1981, Roth wrote a second letter urging a response from his attorney. He mentioned he had overdue dental bills which had been incurred based upon respondent’s advice. Roth also stated that unless the matter was concluded by March 25, 1981, he would terminate his representation by respondent. Roth received no response.
On March 27, 1981, Roth again wrote respondent and terminated his employment. Roth advised that his new attorney would be in contact and requested respondent provide the new attorney with Roth’s file and other property.
During this time the candy bar manufacturer’s insurance representative, Betty Bonnell, had received a letter from respondent dated November 12, 1980. After receiving the letter, Bonnell spoke on the phone with respondent several times. She attempted unsuccessfully to arrange a meeting. Bonnell testified respondent did not discuss any specific settlement terms nor did he threaten the commencement of litigation. On March 25, 1981, Bonnell wrote respondent requesting information concerning the case. Respondent did not reply.
Roth’s new attorney, John Bryan, spoke with respondent on April 8, 1981. Bryan confirmed respondent’s termination as Roth’s attorney, but also discussed the possibility of respondent settling the case. Respondent implied a settlement was imminent. Bryan told respondent that if settlement was offered for $10,000, to accept it.
Bryan then sought Roth’s file from respondent. After several letters and calls extending into August 1981, Bryan informed respondent he was contacting the candy bar manufacturer. Respondent still did not reply.
Bonnell, who had been continually trying to contact respondent, received a copy of Bryan’s letter to the manufacturer. She wrote to Bryan expressing confusion as to who was representing Roth. She also requested the information which she had not been able to obtain from respondent.
During this time, Bryan was attempting to obtain evidence in the case which Roth had provided to respondent’s office in 1980. Respondent informed Bryan the evidence was in his father’s safe and he, therefore, did not have access to it. Respondent meanwhile wrote Bonnell on November 16, 1981, stating he was making one final attempt to settle the matter. He indicated he had the evidence which he had informed Bryan he did not have access to.
After being informed of this development by Bonnell, Bryan wrote respondent requesting that he write Bonnell indicating Hohman no longer represented Roth. Bryan again requested the return of the evidence and the documents concerning the case which respondent possessed. These were given to Bryan shortly after December 1, 1981.
On December 15, 1981, Bryan filed suit against the candy manufacturer. This suit was still pending at the time of the disciplinary hearing.
The panel concluded respondent violated DR 6-101(A)(3) (232 Kan. clxxxvi) on both complaints by neglecting a legal matter entrusted to him. The panel further found respondent engaged in conduct involving misrepresentation and deceit in violation of DR 1-102(A)(4) (232 Kan. clxxv) and in conduct which adversely reflected on his fitness to practice law in violation of DR 1-102(A)(6) (232 Kan. clxxv) in connection with the second complaint in case No. 56,100.
The respondent contends the findings of fact do not support the conclusion he neglected a legal matter. With this contention we disagree.
The standard of proof to warrant a finding of attorney misconduct requires the charges be established by substantial, clear, convincing and satisfactory evidence. State v. Scott, 230 Kan. 564, 570, 639 P.2d 1131 (1982). We defined “attorney neglect” in State v. Dixon, 233 Kan. 465, Syl. ¶ 2, 664 P.2d 286 (1983):
“Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. . . . Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error in judgment made in good faith.”
In the first complaint the evidence presented to the hearing panel established respondent consistently failed to fulfill his responsibilities to Richard Howard, one of his clients. There was no evidence the neglect was inadvertent or the result of an error in judgment.
In the second complaint it is clear respondent did not reply promptly to inquiries from his client, Thomas Roth, or from the insurance company claims adjuster or from Mr. Bryan, the attorney who replaced him in the case. Respondent’s failure to promptly communicate with all of these persons created many legal problems which could have culminated in the loss of Roth’s claim. This amounts to neglect of a legal matter.
We have no hesitation in adopting the hearing panel’s conclusion respondent neglected a legal matter entrusted to him in both complaints.
The complaint that respondent engaged in conduct involving misrepresentation and deceit also arose from his failure to communicate with his client and his continued representation of Roth after he was terminated. Respondent’s misleading suggestions to Roth that settlement was imminent, coupled with his failure to correct Roth’s belief the settlement proceeds were on the way, constitute misrepresentation. All of these infractions were prejudicial to the administration of justice and reflect adversely on respondent’s fitness to practice law.
The evidence clearly and convincingly supports the conclusions of the hearing panel.
In both cases the hearing panel recommended respondent be indefinitely suspended from the practice of law. Respondent argues this is too harsh a penalty in this case and offers evidence of mitigating circumstances. The evidence was that he had been a careful, conscientious, legal practitioner until this two- or three-year period of his life. He argues, and offered evidence in support of his argument, that the cause of his disciplinary rule violations was that his mother was diagnosed as having cancer and his father and mother moved to Hawaii for treatment of the illness. Not only was his mother’s illness a problem for him, but he also was required to take over the complicated family businesses, all of which proved too much for him to properly handle.
In State v. Scott, 230 Kan. 564, 572, we examined the factors to be considered in assessing punishment in lawyer discipline cases:
“(1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude of the attorney as shown by his cooperation during the hearing and acknowledgement of the transgression; (5) letters from clients, friends and lawyers in support of the character and general reputation of the attorney; and (6) any statement by the complainant expressing satisfaction with any restitution made and requesting no discipline. 7 Am. Jur. 2d, Attorneys at Law § 52, p. 112; State v. Stakes, 227 Kan. 711, 608 P.2d 997 (1980) (aggravating or mitigating circumstances); State v. Leon, 229 Kan. 178, 621 P.2d 1016 (1981) (previous record of professional conduct); In re Ratner, 194 Kan. 362, 399 P.2d 865 (1965) (testimony as to attorney’s reputation and character).”
An addition to the foregoing list of mitigating factors is that of personal misfortunes of the attorney if such misfortunes have contributed to a violation of the Code of Professional Responsibility. State v. Martin, 231 Kan. 481, 486, 646 P.2d 459 (1982).
We have reviewed all of these factors and taken into consideration respondent’s prior good conduct and good reputation in the community. Also we have considered the effect on respondent of the illness of his mother, and the pressure of having to take over the family businesses. Based upon these mitigating circumstances we conclude the hearing panel’s recommendation of indefinite suspension from the practice of law be rejected and instead respondent be suspended from practicing law for a period of ninety days.
It Is Therefore Considered, Ordered and Adjudged by the Court that Loren Hohman, Jr., be and he is hereby suspended from the practice of law for a period of ninety days. The costs of this proceeding are taxed against the respondent and are ordered paid forthwith.
This order becomes effective upon the filing of this opinion with the Clerk of the Supreme Court. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the Binkley Company, defendant-appellant, from a judgment entered on a jury verdict for $121,549.72 against it and in favor of the plaintiff-appellee, Evelyn M. Cory, administratrix of the estate of Leonard Cory, deceased, and Evelyn M. Cory, individually. The case was submitted to the jury on the theory of equitable estoppel. The verdict was for the precise amount of the medical bills incurred by Leonard Cory during his last illness. Binkley also appeals from a directed verdict granted in favor of defendant-appellee Aetna Life Insurance Company, its group health insurer. Binkley raises three issues on this appeal: whether Binkley owed Leonard Cory a duty to inform him of what would happen to his group health insurance when his job status changed; whether the trial court erred in granting Aetna a directed verdict; and whether Binkley falsely represented or concealed material facts concerning Leonard Cory’s health insurance or employment status.
In the early or mid-1960’s, Leonard Cory began working for Wilbeck Manufacturing, a firm in Hutchinson, Kansas, that produced tillage equipment. He was employed as a salesman and received a salary, commission, travel expenses, and Blue Cross-Blue Shield health insurance. Cory’s employment continued until 1977, when the Binkley Company bought Wilbeck Manufacturing. Cory was retained as a salaried salesman with Binkley and his benefits remained similar, with health insurance provided under a plan with Aetna Life Insurance Company. Starting in 1979, Cory was hospitalized on and off, and his health was obviously on the down-slope.
In the spring of 1981, Binkley’s farm equipment business declined along with the general problems in the farm economy. One of the Binkley officials, Thomas DeBlase, said that Leonard Cory was not paying his way and told another official, Jay Wilbeck, to “terminate” Cory. However, both officials concluded that Cory could continue as a manufacturer’s representative, an unsalaried independent contractor, in which capacity he coidd continue to sell the company’s products and earn a higher rate of commission. Wilbeck testified that he told Cory of his “change in job status.” He did not recall exactly the date of the conversation and nothing was said about health insurance. He testified that he “took the easy way out by saying no more than necessary, and assumed that all the other information that needed to be put together would come from either the personnel department at the Binkley Company [or] the insurance company.” A “PE-2” form, a formal notice of termination, was prepared in the personnel department and was sent to the payroll department. A copy of such a form is usually sent to the employee to inform him or her of the termination. Mrs. Cory, however, was sure that her husband had never received a PE-2 notice of termination.
Mr. and Mrs. Cory knew that Mr. Cory was losing the salary and travel expenses, the company car, and a telephone credit card. They also knew that Mr. Cory would continue selling Binkley products and that his commission was to go from two percent to six percent. Mrs. Cory was worried about the medical insurance, although Mr. Cory assured her that he was still covered. She considered securing other insurance through her beauty shop if the Aetna insurance through Binkley was no longer available.
The insurance plan' booklet provided to Binkley employees specifically admonished the employees to call the Binkley personnel department if the employees had any questions about group insui'ance. Starting on May 29, 1981, Mrs. Cory called the Binkley Company five times, and finally, on June 3, 1981, she spoke to Karen Rotemeyer, an insurance clerk in Binkley’s personnel department, Ms. Rotemeyer left the phone and pulled Mr. Cory’s file, returned to the phone, and asked what Mrs. Cory wanted. Mrs. Cory responded that her husband’s job status had changed as of June 1, and she needed to find out about the medical insurance. She told Ms. Rotemeyer that “with our track record, we cannot afford to be without it.” Ms. Rotemeyer responded that as far as she could tell there was insurance. Mrs. Cory “wanted to know if we were covered and I still had coverage,” and she also inquired about an old hospital bill for which she had not yet been i-eimbursed. The clerk told Mi's. Cory “not to worry,” and to resubmit the old bill. Mrs. Cory testified that as a result of this telephone conversation, she believed that she had continuing coverage under the Aetna insurance plan.
Karen Rotemeyer testified that when she spoke to Mrs. Cory on June 3, she did not know that Mr. Cory had been terminated. She said that the discussion centered around past medical expenses and that Mrs. Coxy did not ask her about future medical coverage. After the telephone conversation, she spoke to the personnel director and learned that Leonard Cory had been terminated. She had no further conversation with the plaintiff. Leonard Cory’s employment as a “proprietary” or company salesman terminated on May 1, although the company record was made a few days later. Insurance premiums were deducted from Cory’s May paycheck and his insurance coverage terminated on June 1. The Binkley Company notified Aetna that Leonard Cory’s health insurance coverage ceased on June 1 due to the termination of his employment. According to the policy, an employee who is terminated has thirty-one days after termination to convex! the group health insurance to an individual plan.
Leonard Cory was hospitalized in the Wesley Medical Center in Wichita from July 11 through September 24,1981. From there he went to a hospital in Hays. Early in his hospitalization, a family friend called the Binkley Company for Mrs. Cory and asked for insurance claim forms for Leonard. These were sent and claims were filed. Mrs. Cory later received from Binkley three “Explanation of Benefits” forms, dated September 1, September 21, and October 15, requesting “a completed attending physician’s statement.” On the September 21 form, Cheryl Dyer of the Binkley personnel department wrote a personal note asking Mrs. Cory to supply this information as soon as possible. On November 13, Mrs. Cory received a letter from Aetna saying that it would not pay any medical expenses incurred after June 1. Until she received that letter, Mrs. Cory did not know that her husband was not covered.
We turn now to the issues raised by the appellant, the first of which is whether Binkley owed Leonard Cory a duty to inform him of what would happen to his group health insurance when his “job status” changed. Binkley’s argument on this point is that Cory was terminated on May 1; that his employee’s insurance booklet clearly stated that insurance ended when employment terminated; and that he had thirty-one days after his termination as an employee to convert his group plan to an individual policy. Binkley argues that it notified Cory that his employment was being terminated; that he should have known that his insurance terminated; and that it had no duty to notify him beyond the information given to him in the insurance booklet.
The difficulty with this argument is that the case was not tried and was not submitted to the jury on the theory that Binkley had a duty to notify Cory that his insurance terminated and that Binkley was negligent in failing to perform that duty. It was tried and submitted to the jury on the theory of equitable estoppel. That theory is discussed in our recent case of Iola State Bank v. Biggs, 233 Kan. 450, 662 P.2d 563 (1983), where we said:
“Equitable estoppel is the effect of the voluntary conduct of the person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it has a duty to speak, induced it to believe certain facts existed. It must show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 6, 642 P.2d 75 (1981).” Syl. ¶ 4.
Plaintiffs theory and the theory upon which the case was submitted to the jury was not that Binkley had a duty to notify Cory not only of the termination of his employment but also of the termination of his group health insurance, but that by the telephone conversation of June 3,1981, Binkley represented and induced the Corys to believe that they were protected by the Aetna policy and that they would continue to be covered by it during Cory’s employment as a manufacturer’s sales representative. Mrs. Cory contended that she relied and acted upon this representation. Thus, whether or not Binkley had a duty to notify Cory of the termination of his group insurance is not a determinative question here where plaintiffs claim was made and submitted solely on the theory of equitable estoppel. The determinative issue was whether, through its agent, Binkley represented that Cory was covered when he was not, and whether Mr. and Mrs. Cory rightfully relied upon that representation to their detriment.
Next, Binkley contends that the trial court erred in granting a directed verdict to Aetna. The plaintiff initiated this action against both Binkley and Aetna. Binkley filed a cross-claim against Aetna in which it alleged that if Binkley “is held liable for any of the damages alleged by the plaintiff, it would be held liable solely due to the misrepresentation of Aetna . . . .” It then prayed that Aetna be held liable for any damages of plaintiff assessed to the Binkley Company. The pretrial order does not separately discuss the cross-claim of Binkley against Aetna, and does not list as an issue for trial misrepresentation by Aetna. The record of the trial does not disclose any evidence that Aetna made any misrepresentations to either Binkley or the plaintiff.
At the close of the evidence, Aetna moved for a directed verdict on all claims against Aetna. The trial court sustained that motion. As to plaintiffs claim against Aetna, plaintiff does not appeal or cross-appeal from the trial court’s order directing a verdict upon her claim. The appeal here is by Binkley from the verdict and judgment, including the order of a directed verdict against Binkley on its cross-claim against Aetna.
In Lemley v. Penner, 230 Kan. 25, 630 P.2d 1086 (1981), we said:
“The standard for appellate review on motions for directed verdict is well established: All facts and inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, 539, 618 P.2d 1195 (1980); Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, Syl. ¶ 5, 589 P.2d 599 (1979); Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977); Langhofer v. Reiss, 5 Kan. App. 2d 573, 578, 620 P.2d 1173 (1980). Additional rules governing motions for directed verdict are stated in CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 231, 615 P.2d 774, rev. denied 228 Kan. 806 (1980):
‘A motion for directed verdict may not be sustained unless the evidence is insufficient to support a verdict for the party against whom it is directed. (Citations omitted.) In considering a motion for a directed verdict on an issue of fact, the trial court should not weigh conflicting evidence or consider the preponderance thereof.’ ” 230 Kan. at 27.
Binkley does not argue that there were misrepresentations by Aetna, and we find none. Aetna’s liability, if any, is therefore dependent upon the terms of the policy which it issued to its insured, the Binkley Company. Binkley executives and employees who testified at trial agreed that the Aetna policy covered all of the salaried and hourly employees of the Binkley Company, but that the policy did not cover manufacturer’s representatives, independent salesmen who were compensated strictly on a commission basis. Cory was covered as long as he was a salaried employee. The change effected in May placed him in the latter classification — as an independent salesman, unsalaried, and compensated solely upon a commission basis. As such, he was not covered under the terms of the policy. Binkley notified Aetna that Leonard Cory was terminated from his employment and that his insurance terminated on June 1, 1981.
Binkley contends that the trial court did not rule as a matter of law that Binkley had not communicated and brought home to Leonard Cory the specific knowledge that his employment had been terminated. Thus, it contends that whether or not he was properly notified was an issue of fact, and if he was not properly notified, his rights under the group policy continued. In support of this claim, it cites Emerick v. Connecticut General Life Ins. Co., 120 Conn. 60, 179 A. 335 (1935), 105 A.L.R. 413. That was a case in which the employee was temporarily laid off, but.was not given a notification by his employer that he was being terminated. The Connecticut General Life Insurance Company had issued group life insurance to Pratt & Whitney, covering the lives of its employees. Emerick, a Pratt & Whitney employee, was temporarily laid off. Pratt & Whitney notified Connecticut General that Emerick was terminated, but it did not notify Emerick. During the layoff, Emerick died. In an action by the employee’s representative against the insurance carrier, the court held that “termination of employment” as used in the policy meant a termination of which the employee had knowledge or notice, and that the employee was entitled to notice that his employment was terminated before his insurance could be terminated, since otherwise the thirty-one-day conversion privilege would be of doubtful value. Pratt & Whitney, the employer, was not a party to the action, and no cross-claim by employer against insurer was involved.
Here, the cross-claim by Binkley against Aetna, with which we are concerned, was originally based upon Binkley’s claim of misrepresentation by Aetna. As we noted earlier, that was not specified as an issue at pretrial and there was no evidence to support that claim at trial. Binkley, in defending against plaintiff s claim, contended it notified Cory of his termination. It claimed he was given oral notice of the termination by Jay Wilbeck, and that a copy of the PE-2 notice of termination was mailed to Cory. On appeal, it now contends that it did not notify Cory fully and completely of his termination and, therefore, Aetna should reimburse Binkley. We find this contention untenable. This position was not included in the pretrial order and was not pursued during trial. We hold that Binkley is not now entitled to maintain its cross-claim for reimbursement from Aetna on the basis that its notice to the employee was unclear and ineffective. Binkley notified Aetna that Cory was terminated and, insofar as its claim against Aetna is concerned, Binkley is bound by that notification. Aetna had the right to rely upon the notification from Binkley, its insured. See Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S.W.2d 852 (1942); Beecey v. Travelers Ins. Co., 267 Mass. 135, 166 N.E. 571 (1929); and Annot., Termination of coverage under group policy with regard to termination of employment, 68 A.L.R.2d 8 § 93, p. 142.
This brings us to the final and controlling issue. Binkley contends that it did not falsely represent or conceal material facts concerning Leonard Cory’s health insurance or employment status through either representation or conduct, including silence where there was a duty to speak. The question here is really whether there was substantial competent evidence to support the verdict, which was returned under instructions sub mitting the case to the jury on a theory of equitable estoppel. The rules under which we review the evidence, when challenged as to its sufficiency to support a verdict, were recently reviewed in Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038 (1984). We said:
“ ‘It has long been the rule that when a verdict is attacked for insufficiency of the evidence, “the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.” Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).’ [Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979).]
“ ‘When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene.’ [Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979)].” 235 Kan. at 393.
Earlier in this opinion we discussed the elements of equitable estoppel. The trial court so instructed the jury, and there were no objections to that instruction. The plaintiff contends that, as a result of her telephone conversation with Ms. Rotemeyer, she was induced to believe that her husband’s medical insurance coverage continued in his new position. Mrs. Cory followed the admonitions given in the company pamphlet and called the personnel office when the question about continued coverage arose. She testified that she knew her husband’s job status changed the first of June, that he lost the company car, the salary, and the expense account, and that she called the company’s personnel office to find out about health insurance. If Mrs. Cory’s testimony is to be believed, as it must be on appeal, Ms. Rotemeyer assured her that coverage continued. The time of the conversation was June 3, 1981. Both Binkley and Aetna contend that insurance coverage terminated on June 1, 1981. Thus, the thirty-one-day period for converting the group insurance to an individual policy ran until early July. On the date when the telephone conversation was held, the conversion right was in effect. A representation on June 3 that Mr. Cory’s health insurance coverage continued would have been highly prejudicial. Such a representation would have indicated to the Corys that they need not seek to convert the Aetna policy, and that they need not seek separate medical coverage elsewhere.
In this connection, we note that Binkley has its principal offices in Missouri, and Leonard Cory was its only employee in Kansas. The Aetna policy (which is not included in the record on appeal) was presumably delivered to Binkley in Missouri, and thus would be required to conform to the laws of that state. The insurance laws of both Missouri and Kansas required that group hospital, surgical or major medical expense insurance policies contain provisions authorizing the conversion from group to individual policies not later than thirty-one days after the termination of coverage under the group policy. See Mo. Ann. Stat. § 376.397 (Vernon 1984 Supp.), and K.S.A. 40-2209, amended by L. 1984, ch. 172, § 4, effective January 1, 1985. Thus the termination of Cory’s insurance coverage on June 1, 1981, and not the termination of his employment on May 1, is the critical date for fixing the commencement of the thirty-one-day conversion period. Where policy provisions and state law conflict, state law controls.
Other evidence also tends to support the verdict. Cory was specifically told that he would lose the company car, the telephone credit card, the travel expense payments, and his regular monthly salary. But he was to remain associated with the company, selling its products on an increased commission basis. Ño one mentioned the health insurance. Additionally, after the telephone conversation, Binkley sent health forms to the Corys for medical expenses incurred áfter that date, and the company requested additional information so that the claims could be processed.
We hold that there was substantial competent evidence to support the submission of the case to the jury on the theory of equitable estoppel, and to support the jury’s verdict.
The judgment is affirmed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is an injunction action. Puritan-Bennett Corporation and Puritan-Bennett Aero Systems Company (Puritan), brought this action against their former employee, Robert Richter, seeking enforcement of restrictive covenants in his employment contract. The district court enjoined Richter from rendering services to any organization in the aircraft emergency oxygen equipment industry including Figgie International, Inc., for a period of eleven months. Richter was also permanently enjoined from disclosing Puritan’s trade secrets. Richter appeals.
Puritan (appellees) is engaged at its Lenexa facility in the design and manufacture of emergency oxygen breathing equipment and, in particular, in the manufacture of chemical oxygen generators for use in passenger aircraft. The market for such products consists primarily of five manufacturers of commercial aircraft frames. Commercial airlines are also customers, but they buy emergency oxygen products from approved lists provided by the manufacturers, so the five aircraft framemakers are the key to the world market.
Appellees’ only significant competitor is the Scott Aviation Division of Figgie International, Inc., and with specific regard to chemical oxygen generators Scott is appellees’ only competitor.
Appellant Richter began working for Puritan in December, 1973, as a project engineer. On the day he reported for work at Puritan’s Lenexa facility, he signed a hiring agreement. Paragraphs four and five of the agreement prohibited him from disclosing, both during and following his employment, trade secrets and proprietary information of Puritan. Paragraph nine of the contract prohibited Richter from rendering services, directly or indirectly, to any organization competitive with the business of Puritan for a period of one year after termination of his employment.
Prior to coming to Puritan, appellant had no experience in the design or manufacture of oxygen breathing apparatus. While at Puritan he received successive promotions. He was appointed director of engineering in 1975 and in December, 1980, was promoted to director of operations. During the course of his employment he became involved with and highly knowledgeable about appellees’ chemical oxygen generators, directly participated in the preparation of new proposals made to customers and was in regular contact with the purchasing and engineering departments of Puritan’s customers. Richter acquired knowledge of Puritan’s product weaknesses, as well as strengths, and had access to trade secrets and proprietary information of appellees. Shortly before he resigned, Richter participated in Puritan’s product development planning and marketing strategy for the next five years.
In March, 1981, appellant announced his resignation from appellees effective March 20, 1981, and his acceptance of the director of engineering position with appellees’ competitor, the Scott Division of Figgie. In this position he has been involved in the supervision of seventy-five to one hundred employees engaged in the engineering and production of oxygen equipment. Certain of these employees are engaged in the development of chemical oxygen generating equipment for use in passenger aircraft. As part of his responsibilities for Scott, appellant has also had responsibility over the design and production of chemical oxygen generating systems for use in commercial passenger aircraft and he participates in the marketing of such products.
Puritan filed suit on March 16, 1981, for an injunction preventing Richter from violating the noncompetition covenant contained in the hiring agreement and to prevent him from disclosing trade secrets and confidential information. After a hearing on the motion, the trial court entered an injunction enjoining appellant from disclosing any trade secrets or confidential commercial information of appellees but refused to prohibit him from working for Scott. On April 20, 1981, Richter began work for Scott. On June 2, 1981, the trial court, after further hearing, modified its earlier order to restrain him from discussing any aspect of Puritan’s business involving the research, development, production or sale of gaseous or chemical aircraft emergency oxygen equipment.
On July 16, 1981, a hearing was held on Puritan’s request for a permanent injunction. In its August 24, 1981, decision the trial court entered an order making its earlier injunction permanent but denying Puritan’s request for an injunction prohibiting Richter from working for a Puritan competitor. The trial court expressly found the terms of the hiring agreement were reasonable but held the agreement was unenforceable due to lack of consideration.
Puritan appealed the trial court’s order to the Court of Appeals. On January 20,1983, that court entered its decision reversing the trial court on the issue of the consideration for the restrictive covenant in the hiring agreement. See Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 657 P.2d 589, rev. denied 233 Kan. 1092 (1983). The Court of Appeals specifically found Puritan’s continued employment of Richter after his signing of the hiring agreement represented sufficient consideration to make the agreement enforceable. Although the original one-year restriction in the agreement had expired on appeal, the court noted the trial court had the equitable power to extend the term in order to carry out the purpose of the agreement on remand.
The court remanded the case with directions to the trial court to consider whether appellees were entitled in equity to an extension of the term of noncompetition. The court also directed the trial court to consider whether broader relief against disclosure of trade secrets was compelled by the terms of the hiring agreement. A motion for rehearing and petition for review were both denied.
Following denial of Puritan’s petition for review, the parties met with the trial court in an informal conference. At the conference, the trial court ruled an evidentiary hearing was unnecessary on remand. Richter subsequently filed several requests for an evidentiary hearing. These were all denied by the trial court.
Puritan then filed a motion to modify the original injunction in light of the Court of Appeals decision. In response, appellant filed a memorandum opposing appellee’s motion to modify the injunction.
On August 30, 1983, the court modified the previous injunction. The modified injunction substantially adopted the hiring agreement and enjoined Richter from working for Figgie International, Inc. for eleven months from September 9, 1983. This appeal followed.
Appellant initially argues the trial court erred in applying the restrictive covenants of the hiring agreement since they were more than reasonably necessary to protect appellees.
In Kansas, it is well recognized that a restrictive covenant in an employment contract will only be applied to the extent it is reasonably necessary under the facts and circumstances of the particular case. See Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 670, 567 P.2d 1371 (1977), and Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 (1950). The district court in this case found in its initial conclusions of law that the contract was reasonable in its scope. The appellant did not appeal from that ruling. Consequently the Court of Appeals stated: “The trial court found the covenant in this case to be reasonable and that point is not disputed on appeal.” 8 Kan.App. 2d at 313. This would seem to bar the raising of the issue now since the general rule is where appellant fails to brief an issue, that issue is waived or abandoned. Friends University v. W. R. Grace & Co., 227 Kan. 559, 561, 608 P.2d 936 (1980). On remand, however, the district court again found the agreement reasonable. Also, appellant validly argues the issue was not relevant until the case was remanded and the district court applied the restrictive covenant of the contract for the first time. The trial court finding there was no consideration for the contract provision rendered its determination of reasonableness mere dicta. Richter raised the issue of reasonableness on remand. Thus, the issue is properly before us.
Richter alleges the modified order of the district court issued on remand was overbroad in that it was more than was reasonably necessary since it barred him from communicating with Figgie in general, rather than merely precluding the communication of trade secrets. For support appellant cites Allis-Chalmers Mfg. Co. v. Continental Aviation & Eng. Corp., 255 F. Supp. 645 (E.D. Mich. 1966). In that case, an engineer who had directly participated in the design and production of fuel-injection distributor-type pumps left his first employer to join a competitor who manufactured distributor-type pumps as well as other products. The court issued an injunction prohibiting the engineer from any work in the area of fuel-injection distributor-type pumps. This afforded practical protection to the plaintiff s trade secrets, while allowing the former employee to continue work. That court stated:
“Thus, the injunction granted is as restricted as possible to protect the secrets involved without undue restraint on [the engineer’s] right to pursue his chosen vocation, only prohibiting work in the design and development of distributor type pumps.” 255 F. Supp. at 654.
By comparison, in this case, the court’s modified order stated:
“[D]efendant is enjoined from disclosing any commercial property, confidential information, data, records, practices, and other trade secrets of plaintiffs. More specifically, defendant is enjoined from disclosing any of plaintiffs’ compositions, details or methods of product preparation, uses of plaintiffs’ technology and its methods of application, information concerning plaintiffs’ customers, specifications and formulations for plaintiffs’ products, information relating to the plaintiffs’ research, development, production or sales techniques of gaseous and/or chemical aircraft emergency oxygen equipment, or any other information connected with any aspect of plaintiffs’ business.”
Paragraphs four and five of the Hiring Agreement provide:
4. “That in addition to my acquaintance with the various aspects of any of the aforesaid items of commercial property of the Company, my activities in its employ may give me information about similar activities of others within the Company as well as with confidential information, data, records, practices and other trade secrets of it, exemplified by, but not restricted to, compositions, details of methods of preparation, varied uses and methods of application of its products, its customers, their specifications, and uses and methods of application, and formulations made, of products bought from the Company; all of which are hereinafter referred to as its ‘trade secrets’.
5. “Not to disclose to others during my employment or at any time thereafter except as the Company may authorize in writing or a Court order may require, any information concerned with any of the Company’s aforesaid commercial property or trade secrets, or any information connected with any aspect of the Company’s business; and that this restriction against disclosure similarly applies to prevent me from submitting for publication in any scientific, trade, or other journal any such aforesaid information as any part or the whole of any item or article submitted for publication therein, without written approval of one duly authorized by the Company to so approve.”
It is readily apparent the trial court closely followed the provisions of the Agreement in formulating the scope of the injunction. Therefore, an attack on the reasonableness of the inj.unction is in effect an attack on the reasonableness of the Hiring Agreement.
Hiring agreements which restrict communication of ideas in general, rather than purely trade secrets, have been held unreasonable. In Great Lakes Carbon Corp. v. Koch Industries, 497 F. Supp. 462 (S.D.N.Y. 1980), the court reasoned that employment contracts which forbid communication of information which is not a trade secret by former employees to competitors resulted in a prohibition of employment in an individual’s area of expertise, which is unreasonable and thus not allowed under law. The Koch court stated:
“ ‘Where the knowledge does not qualify for protection as a trade secret . . . we see no reason to inhibit the employee’s ability to realize his potential both professionally and financially by availing himself of opportunity.’ [Citation omitted.]
“The definition of [trade] secrets so as to include information of every kind obtained by the employee is absurd.” 497 F. Supp. at 471.
See also E. W. Bliss Company v. Struthers-Dunn, Inc., 408 F.2d 1108 (8th Cir. 1969), and cases, cited therein (broad prohibition of trade secret communication is not allowed since it could enjoin employees from employment in a wide field); Hampton v. Blair Manufacturing Company, 374 F.2d 969 (8th Cir. 1967) (injunction which protected trade secrets was too broad since it included ordinary uses); Corica v. Ragen, 140 F.2d 496 (7th Cir. 1944) (injunction was too broad and sweeping because it restrained lawful communication of employee).
Strict enforcement of paragraphs four and five of the Hiring Agreement set out above would virtually bar appellant from the practice of his profession. These provisions go far beyond trade secrets and are, therefore, unreasonable. We conclude the injunction against Richter should be modified enjoining him from disclosing information relating to Puritan-Bennett’s research, development, production or sales techniques of gaseous and chemical aircraft emergency oxygen equipment. To go any further would unreasonably infringe upon appellant’s right to earn a living.
For his final issue appellant argues the extension of the one-year restriction against employment provision of the hiring agreement to a time three and one-half years after his termination is an unreasonable and inequitable extension beyond the terms of the contract.
The appellant agrees with the Court of Appeals that a court of equity may extend equitable relief beyond the contract terms if reasonably necessary. The appellant argues here, however, the extension was not reasonably necessary. In support appellant contends after expiration of the contract period prohibiting employment by competitors, the appellees’ need for protection ends and is no longer necessary or reasonable. On this point the Court of Appeals held: “[T]he protective purpose of an agreement which is undoubtedly reasonable but incorrectly denied enforcement by the trial court should be carried out as much as possible on remand.” Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d at 316.
Appellant alleges the extension of the covenant is not justified since the only purpose of the noncompetition covenant here is the protection of appellees’ trade secrets, and this has already been achieved by the injunction prohibiting the communication of trade secrets. The question of trade secret disclosure is not determinative of appellees’ right to have the noncompetition covenant in force. The Kansas Supreme Court stated this in Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, which involved enforcement of an employee covenant not to compete. This court stated:
“The existence of trade secrets as evidence of enticing customers from a former employer is sometimes relevant, but not essential, to injunctive relief in a suit brought for breach of a covenant not to compete.” p. 674.
If we accept appellant’s argument, an employee noncompetition covenant would never be enforced. The purposé of the covenant is not only to prevent trade secret disclosure, but to prevent appellant from using the expertise learned from appellees to benefit Figgie. Both of these are reasonable purposes. However, in light of all the circumstances of this case and the length of time which has transpired since appellant terminated his employment with appellees, we modify the injunction restricting appellant’s employment to expire with the mandate of this case.
In light of our action herein we need not discuss the other issues raised.
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The opinion of the court was delivered by
Herd, J.:
This is an action by Edward E. Giles to quiet the title to the following described real estate situated in Edwards' County, to-wit:
“The West Half of the Southeast Quarter (W/2 SE/4) and the East Half of the Southwest Quarter (E/2 SW/4) of Section Twenty-seven (27), and the Southwest Quarter (SW/4) of Section Thirty-four (34); All in Township Twenty-six (26) South, Range Sixteen (16) West of the Sixth Principal Meridian.”
Appellants counterclaimed seeking to quiet the title in them to an undivided one-half interest in the minerals under the real estate. They filed a motion for summary judgment which was denied. Judgment was then entered for appellee, Giles. This appeal followed.
This dispute arose as follows. On December 1, 1922, Jasper Fisk and his wife, Vivian Fisk, executed a note secured by a mortgage on the above real estate to the Kansas City Joint Stock Land Rank of Kansas City, Missouri. It then assigned the note and mortgage to Phoenix Joint Stock Land Bank of Kansas City. At the time of the execution of the note and mortgage, the Fisks were the owners in fee simple of the' real estate. On December 20, 1928, they conveyed in perpetuity an undivided one-half interest in and to the oil, gas and other minerals therein to Harold F. Young of 806 Perrine Building, Oklahoma City, Oklahoma, subject to the mortgage. Young later conveyed an undivided one-fourth of the minerals under the real estate to D. W. Ohern who then conveyed his interest to Income Shares Corporation. Adobe Royalty is the successor to the interest of Income Shares.
The Fisks were unable to make their note payments or pay real estate taxes for the years 1930 through 1935. As a result, Phoenix filed an action to foreclose its mortgage on September 22, 1936. The Fisks, Harold F. Young, Cora Young, D. W. Ohern, Income Shares Corporation and others, of no concern to this action were made party defendants. Personal service of summons was obtained on all the individual defendants except Effie I. Fisk, Harold F. Young, Cora Young, his wife, and D. W. Ohern and -Ohern, his wife, all of whom were declared “not found in said County,” by the Edwards County Sheriff.
Phoenix filed an affidavit and obtained cpnstructive service by publication upon the unknown heirs of Vivian Fisk and upon Effie I. Fisk, Harold F. Young and Cora Young, and D. W. Ohern and_Ohern, as nonresidents of Kansas. The district court approved the service of process.
The Journal Entry of Foreclosure was entered January 5, 1937. The district court found “all of the mineral interests outstanding against the real estate described in the petition were all junior and inferior to the mortgage of plaintiff Phoenix.” The court ordered the sheriff to offer the real estate for sale subject to the rights of Income Shares in the minerals. In the event the real estate did not bring a sufficient sum to satisfy Phoenix’s judgment, together with interest, taxes and costs, the real estate and severed mineral rights were then to be offered for sale, free and clear of the rights of Income Shares. The real estate was first offered accordingly but no bids were received. The land was then offered for sale with the minerals and sold to Phoenix. The sale was confirmed by the trial court. The appellee in this case, successor in interest to Phoenix, brought this action to quiet his title to the property.
The sole issue in this case is whether notice by publication in 1936 fulfills the Youngs’ and their successors’ due process rights where their out-of-state address was known to Phoenix from the beginning of the 1936 foreclosure action. Income Shares Corporation, as predecessor of Adobe Royalty, Inc., filed an answer and cross-petition in the 1936 foreclosure action, thereby entering its appearance and precluding Adobe from successfully asserting this defense.
The appellants argue the notice in this case, which was exclusively by publication, violates their 14th Amendment due process guarantees and renders the 1936 legal proceedings invalid. It has been held that “[l]ack of valid service . . . deprives the court of jurisdiction and the judgment may be attacked at any time.” Dunn v. City of Emporia, 7 Kan. App. 2d 445, 452, 643 P.2d 1137 (1982). Thus, if the notice was constitutionally defective in this case, the 1936 foreclosure proceedings are void as to the appellants.
In 1956, the United States Supreme Court reversed the Kansas Supreme Court and held unequivocally that notice by publication in a condemnation case was a deprivation of due process when the owner’s name and address was known or could be readily ascertained. See Walker v. Hutchinson City, 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200 (1956). In its decision the Walker court noted an earlier United States Supreme Court case in which the due process requirements of notice were articulated.
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L.Ed. 865, 70 S.Ct. 652 (1950).
We later adopted the Walker court’s decision in Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970), and Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967). In Pierce the court stated the basic notice requirements of the United States and Kansas Constitutions:
“Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.” 200 Kan. 74, Syl. ¶ 6.
If the 1956 Walker decision is applicable to the 1936 mortgage foreclosure, the notice by publication was insufficient since the name and address of Harold F. Young was known to the parties. Phoenix advised the court of the Youngs’ address, but since the Youngs were out-of-state residents it requested the court to approve notice by publication. The court approved the notice. The Walker court noted the deficiency of notice in such cases when it stated, “It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property.” 352 U.S. 116. The Walker court further added, “[T]here seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant’s name was known to the [appellee] and was on the official records. Even a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard . . . .” 352 U.S. at 116. There is no question if the rule stated in Walker is applicable, the Youngs were deprived of due process by the publication notice.
The question remaining is whether the 1956 Walker decision is applicable to prior actions. Appellee places great importance on this court’s noting in Pierce the exact date of the Walker decision. In adopting Walker, Pierce overruled a previous Kansas case in which notice by publication was held not to violate due process. That case, Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P.2d 183 (1956), was handed down May 5, 1956. The Walker case was decided December 10, 1956. The Pierce court noted these dates arguably to show that any decisions upholding publication notice prior to the date of the Walker decision in December, 1956, were valid. The holding in Pierce, however, does not specifically state that as its purpose. We have studiously avoided crossing that threshold heretofore. The issue is presented clearly in the instant case for our resolution.
Constructive notice has been a part of Kansas jurisprudence from the beginning of statehood. The General Laws of Kansas for 1862 provided in pertinent part:
“Service may be made by publication in either of the following cases: In actions brought under the fifty-second and fifty-third sections of this code, where any or all of the defendants reside out of the Territory; in actions brought to establish or set aside a will, where any or all of the defendants reside out of the Territory; in actions brought against a non-resident of this Territory, or a foreign corporation, having in this Territory property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which relate to, or the subject of which is real or personal property in this Territory, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the Territory, or a foreign corporation; and, in all actions where the defendant, being a resident of the Territory, has departed therefrom, or from the county of his residence, with intent to delay or defraud his'creditors, orto avoid the service of a summons, or keeps himself concealed therein, with the like intent.” G.L. 1862, ch. 26, § 78.
In Wesner v. O’Brien, 56 Kan. 724, 725-27, 44 Pac. 1090 (1896), this court construed the constructive notice statute. Justice Johnston, speaking for the court, held the district court had the power to award real estate as alimony in a divorce action where notice on the nonresident defendant was by publication. His analysis is a significant representation of the accepted rationale of publication notice at that time. He stated:
“The determination of the question depends to a great extent upon the statutes of the state, and that the state has full power through its legislature and courts to regulate and control the status of its citizens, and to dispose of or control real property to whomsoever it may belong within its limits, will hardly be denied. It is provided that service may be made by publication ‘in actions to obtain a divorce, where the defendant resides out of the state . . . .’
“ ‘Kansas is supreme except so far as its powers and authority are limited by the constitution and laws of the United States. And within the constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons arid things within the state which the constitution and laws of Kansas may give to them, and the mode of obtaining this jurisdiction may be prescribed wholly, entirely and exclusively by the statutes of Kansas. To obtain jurisdiction of anything within the state of Kansas, the statutes of Kansas may make service by publication as good as any other kind of service.’ [Quoting Dillon v. Heller, 39 Kan. 599, 18 Pac. 693 (1888).]
“The same view has been expressed by the supreme court of the United States, where it is said:
‘The state through its tribunals may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them, and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citizens, and when non-residents deal with them it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens.’ (Pennoyer v. Neff, 95 U.S. 714).
“In the exercise of this power, lands of non-resident owners are appropriated for the taxes assessed against them upon a publication notice only, mortgage and mechanics’ liens are foreclosed against non-resident defendants where there is neither personal service nor appearance, and the property of non-resident defendants lying within the territorial jurisdiction of the court is subjected to the payment of claims and demands in a variety of ways without other service than by publication.”
The law concerning constructive notice in 1936 was G.S. 1935, 60-2525, which provided in pertinent part:
“Service may be made by publication ...
“In actions brought against a non-resident of the state or a foreign corporation having in this state property or debts owing to him sought to be taken by any of the provisional remedies or to be appropriated in any way.”
It should be noted that from 1862 to 1964 Kansas provided for out-of-state personal service of summons as an option to publication notice. A choice of one form of service, over the other, however, was not required merely because the nonresident’s place of residence was known. In spite of the personal service option, publication notice was authorized for all nonresidents and received wide use with court approval, During the same period of history there was no statutory authority for service by mail on either residents or nonresidents. It is therefore logical to believe the legislature had grave doubts about the effectiveness of obtaining out-of-state personal service because of the reluctance of foreign officers to either make service on a citizen of their territory or to make return of process. Thus, publication notice was deemed the only effective method available to the courts to process actions involving nonresidents. Kansas constructive notice laws were later changed in order to comply with Walker.
While public policy is ordinarily declared by the legislature, it is sometimes necessary for the courts to define public policy by construing the Constitution and statutes under the rule of stare decisis. Occasionally, however, changing public policy requires the courts to reverse a prior judicial decision. A court decision interpreting the Constitution or construing a statute ordinarily applies from the date of the adoption of the constitutional provision or from enactment of the statute. Such a rule of construction becomes more and more difficult to apply as the nation grows older. Retroactive application of a change of interpretation of the Constitution affects an untold number of persons and constitutional rights. This difficulty is apparent from the constitutional history of the past thirty years, commencing in 1954 with Brown v. Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954), which overruled Plessy v. Ferguson, 163 U.S. 537, 41 L.Ed. 256, 16 S.Ct. 1138 (1896), thereby making separate but equal educational facilities unconstitutional. Because of the revolutionary impact of this dramatic change in the Constitution, the United States Supreme Court not only restricted the application of the change to apply prospectively but even proposed the application to some future date requiring constitutional compliance to be accomplished at “all due speed.”
Next came the reapportionment cases, Whitcomb v. Chavis, 403 U.S. 124, 29 L.Ed.2d 363, 91 S.Ct. 1858 (1971), Reynolds v. Sims, 377 U.S. 533, 12 L.Ed.2d 506, 84 S.Ct. 1362 (1964), and Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663, 82 S.Ct. 691 (1962). These decisions also applied prospectively. To do otherwise would have nullified all the laws passed by a legislature or Congress, composed of members elected from malapportioned districts.
The human rights cases followed. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963), and Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684, reh. denied 368 U.S. 871 (1961), are illustrative. Each reversed previous interpretations of the Constitution as to the meaning of due process. See also Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969), Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965), and Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964). The Supreme Court ruled in each instance the decision should apply prospectively. To have ruled otherwise would have required that virtually every person incarcerated under previous law would have been entitled to a new trial.
In other actions the United States Supreme Court has articulated the problems which can occur from retrospective application of a judicial decision. In Cipriano v. City of Houma, 395 U.S. 701, 706, 23 L.Ed.2d 647, 89 S.Ct. 1897 (1969), the U.S. Supreme Court held a Louisiana statute unconstitutional which limited voters on issuance of municipal utility revenue bonds to property taxpayers. The court gave its decision only prospective effect, stating:
“Significant hardships would be imposed on cities, bondholders, and others connected with municipal utilities if our decision today were given full retroactive effect. Where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity. [Citations omitted.] Therefore, we will apply our decision in this case prospectively.”
In Phoenix v. Kolodziejski, 399 U.S. 204, 26 L.Ed.2d 523, 90 S.Ct. 1990 (1970), the U.S. Supreme Court held an Arizona statute unconstitutional which restricted voters on general obligation bonds to property owners. Again the court gave its decision no retroactive effect because the decision would be unjustifiably disruptive if applied other than in a prospective manner.
We can see from these cases if the hardship and disruption caused by a retrospective application of a court decision changing public policy is significant, the U.S. Supreme Court has had no hesitation in applying the decision prospectively only.
Kansas cases have also discussed the hardships and problems which occur when courts change decisions retrospectively. In Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 543, 370 P.2d 419 (1962), cited by the court below, we upheld the long-established rule that railroad rights-of-way across property did not create a fee simple title entitling the railroad to the mineral rights below the right-of-way, but rather created only an easement, without any mineral rights. In so doing we stated:
“Where questions arise which affect titles to land, it is of great importance to the public that when they are once decided they should no longer be considered doubtful. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only, but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change.”
The trial court also cites as authority for its proposition that Walker should not be applied retroactively a Kansas case in which governmental immunity was reduced. In that case, Carroll v. Kittle, 203 Kan. 841, 851, 457 P.2d 21 (1969), we stated:
“We find ample authority for the proposition that in departing from the rule of stare decisis, the court may restrict application of a newly established rule to the instant case, and cases arising in the future, where it is clear that the retrospective application of the new rule will result in a hardship to those who have relied upon prior decisions of the court.”
Despite the reasons cited for prospective application of decisions which cause great hardships when applied retroactively, the appellant argues Walker should be applied retroactively in this case. In support the appellant cites several cases from other jurisdictions, as well as United States Supreme Court cases, which have applied Walker to situations in which the landowner discovered after Walker that their land had been taken without actual notice due to notice by publication prior to Walker. See Schroeder v. City of New York, 371 U.S. 208, 9 L.Ed.2d 255, 83 S.Ct. 279 (1962); New York v. N.Y., N.H. & H.R. Co., 344 U.S. 293, 97 L.Ed. 333, 73 S.Ct. 299 (1953); City of Tucson v. Melnykovich, 10 Ariz. App. 145, 457 P.2d 307 (1969); United States v. Chatham, 323 F.2d 95 (4th Cir. 1963); Town of Newcastle v. Toomey, 78 Wyo. 432, 329 P.2d 264 (1958). These cases, however, fail to discuss the implications of the retroactive application of Walker. It is essential to weigh the effect of retroactive application of a decision due to the broad impact of retroactivity on previously decided cases.
In Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974), Justice Fromme stressed the need to weigh the effect of retroactive application of judicial decisions in the context of the guest statute, which was overruled in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974).
In Vaughn, the court allowed limited retroactive application of Henry since the court believed “some limitation is necessary because of benefits which flow from giving finality to cases fairly heard and determined. There is trauma and expense to litigants in every trial. The trauma and expense is doubled by requiring a second trial.” 214 Kan. at 466.'
Giving the Walker decision retroactive application produces significant ramifications. The publication notice method of serving summons on nonresident defendants in all in rem actions plus will contests and divorce actions was quite frequently used prior to Walker. Not only was it authorized by statute, it was easy, sure and made the answer date certain. As a result of its wide use for ninety-four years, such publication notice affects most Kansas real estate titles. It is the exception rather than the rule for a real estate title not to have a mortgage foreclosure, tax foreclosure, quiet title, partition, will contest or divorce with publication notice in its chain of ownership. Thus, it is apparent the voiding of publication notice on nonresident defendants whose residences were known or ascertainable, would cloud the title to an untold amount of real estate. Such action would force a re-examination of the title to all Kansas real estate and subject title insurance companies to unforeseen liability. In addition, divorces granted on publication notice would be void, nullifying many second marriages and rendering the children born to such unions illegitimate.
Due to the obvious substantial hardships and disruption which would be caused by retroactive application of the rule in Walker we conclude it applies prospectively only from December 10, 1956.
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The opinion of the court was delivered by
Lockett, J.;
Louis Chatmon, the defendant, appeals from convictions of aggravated kidnapping, K.S.A. 21-3421, and battery, K.S.A. 21-3412, after a jury trial. He was sentenced pursuant to the habitual criminal act to three life sentences to run concurrently for the aggravated kidnapping, and was sentenced to a maximum of six months in jail for the battery.
On the evening of May 28,1981, Ms. M. met several friends at the Terrace Club in Kansas City, Kansas. After a half hour Ms. M. and four others went to a bar called the Pawn Shop where they remained for approximately 2Vz to 3 hours. Then Ms. M. and three of the group went to the Partners Bar. The group had one drink at Partners and left at approximately 10:15 p.m. Ms. M. and Joe Meredith were both hungry and agreed to eat at the Wyandotte Cafe. Meredith was to drop one of the group off at the friend’s home and then meet Ms. M. at a Kentucky Fried Chicken restaurant at 110th and State Street. Ms. M. would then follow Meredith to the Wyandotte Cafe where they would eat.
Ms. M. had trouble finding the Kentucky Fried Chicken restaurant. Believing she had gone too far do;wn State Street, she turned her car around. While returning to 110th Street, a car quickly moved in front of her. The driver turned on his car’s blinking lights and waved Ms. M. over to the side of the road. The defendant got out of his car, walked back to Ms. M.’s car, and identified himself as a policeman, quickly showing his billfold. Defendant said he stopped her because she was swerving across the road. Ms. M. replied she was looking for the Kentucky Fried Chicken restaurant and perhaps was not being attentive to her driving. The defendant offered to lead her to the restaurant.
When Ms. M. and the defendant arrived at the chicken restaurant, Meredith and a state trooper were already there. The trooper had stopped to question Meredith because an adjacent liquor store had been burglarized several times in the recent past. The defendant had a short conversation with Meredith concerning the trooper’s presence. Ms. M. warned Meredith that the defendant was a policeman. Meredith left for the Wyandotte Cafe in his car with Ms. M. following him in her car, and the defendant followed Ms. M. in his car.
After several turns, the defendant passed Ms. M. and positioned himself between Meredith’s car and Ms. M.’s car. Ms. M. tried to follow Meredith’s car but eventually made a wrong turn and ended up behind only the defendant’s car. She followed the defendant until he waved her over. The defendant departed his car, went back to Ms. M.’s car, got in on the passenger’s side, and told her to drive. Defendant said he would direct her to Meredith’s house, having found out where Meredith lived when he spoke with Meredith at the restaurant parking lot. Stopping at a stop sign, Ms. M. told the defendant that she was doing fine and wanted him to get out of her car. The defendant said he was not getting out. Defendant took off Ms. M.’s glasses and struck her twice across the face, once in the eye, and once near the chin. Ms. M. grew hysterical and the defendant grabbed her by the throat and pushed her down between the bucket seats. The defendant started to strangle her and stated he wanted her to calm down, and that he would let her up if she would take him anywhere he wanted to go. The defendant said he was going to have sex with her. Ms. M. tried to scratch the defendant’s face and after a short struggle, the defendant let her up. The defendant then gave Ms. M. her glasses because she could not see to drive without them.
While Ms. M. drove, the defendant began drinking liquor from a bottle. Defendant stated several times he was going to have sex with Ms. M. At one point defendant ordered her to stop the car so he could relieve himself. When Ms. M. refused to take the keys out of the ignition, the defendant tried to pull them out but had trouble removing the keys. The defendant hit Ms. M. across the face, forcing her to give him the keys. While the defendant was outside the car, Ms. M. retrieved her extra set of keys from her purse in the back seat. As she started the ignition and began to move away, the defendant was able to grab the door handle and jump back into the car. The defendant was angry, but did not strike Ms. M.
Later they stopped again so the defendant could relieve himself. A police car pulled up behind them. The defendant threatened to shoot the policeman and Ms. M. if they were stopped. They were not stopped by the police officer as they drove onto 1-70. Exiting 1-70 at the Turner exit, Ms. M. told the toll collector the defendant was a policeman and needed a cab. The defendant paid the toll and said Ms. M. would take him.
Shortly after leaving the Turner exit, the defendant told Ms. M. to pull over. He then forced her to kiss him, fondled her breasts, and unbuttoned her blouse. Ms. M. pushed him away and buttoned her blouse. The two talked there for approximately 20 minutes.
The defendant then directed Ms. M. back onto State Street. Between 3:00 and 3:30 a.m., Ms. M., needing to use a restroom, stopped at a gas station. At the gas station, Ms. M. told the defendant she was not going to take him anywhere else. She asked the gas station attendant to call the defendant a cab. A man filling up his car asked Ms. M. if the defendant was bothering her. When the defendant walked over to the man to respond, Ms. M. told the attendant she had been kidnapped and to call the police. The police arrived soon after and took both Ms. M. and the defendant to a police substation. Ms. M. estimated she was with the defendant for 3% to 4 hours.
Ms. M. went to a hospital at noon on May 29, 1981, and photographs were taken of her injuries. At the trial the examining doctor testified Ms. M. had soft tissue injuries with bruises about her mouth, some hemorrhaging in her left eye and bruises on her left chest, left arm, and the left side of her back. The doctor testified the eye injury was a severe injury, and the bruises were severe, being quite swollen and discolored. Ms. M. was having spasms of tire jaw muscles and could not fully open her mouth when examined by the doctor.
The defendant testified he never hit Ms. M. He said he gave her directions when she waved him down and then followed her to the Kentucky Fried Chicken restaurant after giving the directions. Defendant left the restaurant behind Meredith and Ms. M. After making a turn he realized Ms. M. was following him. Ms. M. pulled in front of him and waved for him to stop. Ms. M. stated she needed gas and asked him to ride with her to help find a gas station. They talked, rode around, and eventually ended up at the gas station where the police were called.
The defendant raises five issues on appeal.
The defendant contends the court erred in failing to instruct the jury on kidnapping, K.S.A. 21-3420, a lesser included offense of aggravated kidnapping, K.S.A. 21-3421. K.S.A. 21-3107(3) states:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
(The statute was amended by the 1983 legislature. The amended section makes a lesser included offense instruction unnecessary if the defendant objects to the instruction. L. 1983, ch. 107, sec. 1.)
The duty to instruct on a lesser included crime arises only when there is evidence under which the defendant might have been reasonably convicted of the lesser included offense. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The test for giving the lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of the instruction of the lesser charge. State v. Garcia, 233 Kan. 589, Syl. ¶ 8, 664 P.2d 1343 (1983). The evidence supporting the lesser offense, however, need not be overwhelming. The instruction should be given even if the evidence of the lesser included offense is weak and inconclusive or consists solely of the defendant’s testimony. State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1978).
Kidnapping under proper circumstances is a lesser included offense of aggravated kidnapping; aggravated kidnapping (K.S.A. 21-3421) requires one extra element beyond kidnapping (K.S.A. 21-3420). Aggravated kidnapping requires that bodily harm be inflicted upon the person kidnapped. The significant policy behind the establishment of the crime of aggravated kidnapping is to deter the kidnapper from inflicting harm upon the victim, to encourage the victim’s release unharmed.
The defendant testified that no kidnapping occurred and that he did not strike Ms. M. The defendant’s testimony would not support a kidnapping conviction. A conviction for either kidnapping or aggravated kidnapping would rest almost solely on Ms. M.’s testimony. The question of whether bodily harm was inflicted must be answered by her account of the events. Rephrased, the question is whether the injuries Ms. M. described constitute bodily harm.
Several cases have addressed bodily harm and the propriety of instructing the jury on kidnapping as a lesser included offense of aggravated kidnapping. In State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975), the trial court did not instruct the jury on kidnapping as a lesser included offense of aggravated kidnapping. The court held bodily harm was inflicted upon the seven-year-old kidnap victim when the defendant twice threw her into a river. The court determined the act of throwing the child into the river was “bodily harm,” as a matter of law. 217 Kan. at 713. Bodily harm was defined as “ ‘any touching of the victim against [the victim’s] will, with physical force, in an intentional, hostile and aggravated manner.’ ” 217 Kan. at 714. Justice Prager dissented, believing the record raised a factual issue as to whether or not bodily harm was inflicted upon the person kidnapped. Pie argued bodily harm requires injury and the record did not conclusively establish that the victim was injured. See State v. Sanders, 225 Kan. 156, 587 P.2d 906 (1978) (jury instructed on lesser included offense of kidnapping).
In State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 (1982), the court held forcing a kidnap victim to commit sodomy (aggravated sodomy) constituted the infliction of bodily harm. The defendant admitted he robbed the victim, but claimed he was not involved in sodomizing the victim. There was held to be no need to instruct the jury on kidnapping. If the victim’s version of events was accepted, the defendant could not have reasonably been convicted of kidnapping. The defendant would either be convicted of aggravated kidnapping or nothing at all. See Ajmot, 11 A.L.R.3d 1053.
The defendant struck Ms. M. across the face twice, and grabbed her throat when she became hysterical, and started to strangle her. He later hit her across the face again. A doctor testified her injuries were of a severe nature. Here the trial court reasoned either an aggravated kidnapping charge was proper or there should be no conviction as to that charge. The defendant denied a kidnapping occurred and that he had struck Ms. M. The trial court does not err in refusing to give an instruction on the lesser included offense of kidnapping where there is no evidence to support the finding of a lesser included offense. Under the factual situation of this case the defendant was either guilty of aggravated kidnapping or not guilty of that offense. The trial court’s refusal to give the instruction on kidnapping as a lesser included offense of aggravated kidnapping in this case was proper.
The defendant claims that the trial court erred in allowing a portion of the State’s cross-examination of him. We disagree.
During the State’s cross-examination of the defendant, the defendant explained his version of his conduct at the Kentucky Fried Chicken parking lot, when Ms. M., Meredith, and the highway patrol officer were present. The defendant stated: “I was the only black guy there and I know what can happen under the circumstances like that.” Then the prosecutor questioned the defendant as to that statement. The defendant while being questioned brought to the attention of the jury several prior incidents that were otherwise inadmissible.
During the cross-examination of the defendant, counsel for the defendant objected because the evidence was irrelevant. Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience. State v. Norman, 232 Kan. 102, Syl. ¶ 4, 652 P.2d 683 (1982). Subject to certain exclusionary rules the admission of evidence lies within the sound discretion of the trial court. State v. Norman, 232 Kan. at 108. The defendant explained his conduct at the chicken restaurant with Ms. M. because he had had unfortunate experiences with police in the past. The prosecutor delved into what those past experiences had been. The defendant mentioned past charges against him without being specifically asked about them. The specific question about his criminal record was properly objected to. The defendant’s motivation in stopping at the restaurant was relevant. The State could, by questioning the defendant’s motivation, attack the credibility of the defendant’s testimony on a matter the defendant had testified to previously in his direct examination. Kansas statutes, i.e. K.S.A. 60-421, 60-447 and 60-455, govern admission of evidence of past conduct or convictions. The purpose of these statutes is to permit a defendant to testify in his own behalf without having his history of past misconduct paraded before the jury. A defendant is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of events. When the testimony of the defendant goes beyond those bounds of the statutory protection and makes reference to specific prior incidents, he forgoes the protection of the statutes. When the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject.
The defendant argues his battery conviction should be reversed because the trial court’s instruction on battery was clearly erroneous. The defendant requested the battery instructions given by the trial court as a lesser included offense of attempted rape. Defendant relied upon State v. Arnold, 1 Kan. App. 2d 642, 573 P.2d 1087 (1977), which stated the battery in that case was a lesser included offense of an attempted rape. The defendant requested the battery instruction, believing the crime was a lesser included offense of the charged attempted rape. In State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978), the Supreme Court reversed the Court of Appeals, holding battery was not a lesser included offense of attempted rape.
The instruction requested by the defendant certainly was not objected to by the defendant. Normally, he could not predicate reversible error on a question not raised at the first instance at the trial level. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979). However, if the instruction is clearly erroneous then an appellate court on review can entertain the question in the first instance. There is no doubt that if the trial court had not instructed on the offense of battery as a lesser included offense of attempted rape, the defendant could not have been convicted of the offense of battery.
The State claims that the defendant cannot ask for appellate review of an error in giving an instruction which he himself requested. The doctrine of invited error has been recognized in criminal cases in Kansas for some time. One who by his own acts invited error is in no position to complain or take advantage of it on appeal. State v. Thomas, 220 Kan. 104, 106, 551 P.2d 873 (1976). The Kansas cases on invited error involve situations where the invited error was as to testimony. Here the trial court allowed the jury to consider the defendant’s guilt of a crime not charged by the State and an offense that was not a lesser crime of a charged offense.
The trial 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. 22-3201(4). In this case the State did not seek to amend the information to include the allegation of battery. The defendant attempted to create battery as a lesser included offense of attempted rape and confer jurisdiction of the offense of battery upon the trial court.
In a criminal action pending in the district court, the information or indictment is the jurisdictional instrument upon which the accused stands trial. Here the trial court had jurisdiction over the offense of attempted rape charged in the information — but it had no jurisdiction over battery — the question which the jury’s judgment assumed to decide. Having no jurisdiction over the offense of battery the trial court had no power to pronounce the sentence imposed for battery.
A conviction upon a charge not made in the information or properly brought before the court is a clear denial of due process under the Fourteenth Amendment to the Constitution of the United States. In a criminal action the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide. State v. Minor, 197 Kan. 296, Syl. ¶ 4, 416 P.2d 724 (1966). A judgment for the offense of battery where the court is without jurisdiction to decide the issue is void.
The defendant moved for a judgment of acquittal of the charge of aggravated kidnapping after the State rested its case pursuant to K.S.A. 22-3419(1). The motion attacks the sufficiency of the evidence in support of guilt. State v. McGhee, 226 Kan. 698, 700, 602 P.2d 1339 (1979).
“ ‘A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt.’ ” State v. Hill, 233 Kan. 648, 651, 664 P.2d 840 (1983).
Aggravated kidnapping is defined by K.S.A. 21-3421:
“Aggravated kidnapping is kidnapping, as defined in section 21-3420, when bodily harm is inflicted upon the person kidnapped.”
The kidnapping was made easier, according to the evidence stated earlier, because of a deception, the defendant’s impersonation of a police officer. Kidnapping may be perpetrated through a deception. State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976); State v. Holt, 223 Kan. 34, 574 P.2d 152 (1977). K.S.A. 21-3110(5) defines deception as “knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact.”
The defendant was found not guilty of attempted rape by the jury and argues, therefore, that there was no intent to facilitate the crime of rape or to terrorize the victim before the kidnapping, one of which must be found by the trier of fact for a conviction, according to the instruction. Attempt requires an overt act toward the perpetration of a crime. K.S.A. 21-3301. The jury apparently did not find the appellant committed the requisite overt act. But, the jury still concluded the defendant kidnapped Ms. M. with the intent to facilitate a rape. Kidnapping to facilitate a crime must have a significant bearing on making the commission of the crime easier. State v. Buggs, 219 Kan. 203, Syl. ¶ 9, 547 P.2d 720 (1976). Getting the victim alone in a car away from other people would facilitate the commission of a rape. In this case, the defendant stated his intention to have sex with Ms. M. His intent at the time of the kidnapping was to facilitate the rape of Ms. M. A defendant does not always have to be convicted of the crime he intends to facilitate by an abduction to be convicted of kidnapping. See State v. Dunn, 223 Kan. 545, 575 P.2d 530 (1978).
The defendant contends Ms. M.’s testimony contained factual inconsistencies and was unbelievable. The credibility of witnesses should be left to the jury to determine. State v. Douglas, 230 Kan. 744, 746, 640 P.2d 1259 (1982). The evidence viewed in light most favorable to the prosecution convinces this court that a rational factfinder could have concluded the appellant w.as guilty beyond a reasonable doubt. State v. Douglas, 230 Kan. at 745. The trial court was correct in denying the motion to acquit.
The defendant states this case should be remanded to the district court for a hearing on a motion to dismiss. A pro se motion was filed July 6, 1981, a day before the preliminary hearing was held in this case. No hearing was ever conducted on the motion and the issues in the motion were not raised the day of the preliminary hearing. On April 25, 1983, five months after the notice of appeal was filed, the defendant filed a motion to remand the case for a hearing on the motion to dismiss.
This court has stated:
“Sufficiency of the preliminary hearing including its timeliness may be challenged only by motion to dismiss under K.S.A. 22-3208. [Citation omitted.] A motion under K.S.A. 22-3208 to dismiss or grant appropriate relief must be filed no later than 20 days after arraignment. Failure to raise a question as to the sufficiency of the preliminary hearing by such a motion constitutes a waiver and precludes review on appeal.” State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980).
In this case the defendant filed a motion but did not bring the issue of the preliminary hearing’s timeliness to the court’s attention prior to the preliminary hearing, or raise the issue at any time afterward until filing a motion to remand at the appellate level. The defendant is required to have argued the motion attacking the timeliness of the preliminary hearing immediately before the preliminary hearing or not later than 20 days after the arraignment. The fact that the issue was not raised until after the appeal was commenced is a waiver of that issue.
The judgment of conviction of aggravated kidnapping is affirmed. The judgment of the conviction for battery is reversed. The case is remanded to the trial court for modification of the sentence consistent with this opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is a mortgage foreclosure action in which the plaintiff, Tip Top Credit Union of Hillsboro, Kansas, sought personal judgments on various notes and the foreclosure of a number of mortgages on farmland owned by a father and two sons. The defendant, Joseph A. Lies, is the father of the defendants, Joseph N. Lies and William B. Lies. The basic issues in the case were concerned with which defendants were personally liable on particular notes and what land secured particular mortgages.
With one exception, the facts were undisputed and were essentially as follows: Prior to 1968 the father, Joseph A. Lies, acquired approximately 134 acres of land upon which he operated a small dairy farm before his retirement. The sons then took over the operations of the dairy business. On August 1, 1968, the father and sons entered into an escrow agreement in which the father sold to the sons 40 acres of farmland in Sedgwick County, which property will be referred to in this opinion as the home place. The total price to be paid by the sons to the father under the escrow agreement was $24,000 of which $4,000 was to be paid in cash to the father. The balance of $20,000 was the unpaid amount owing on a real estate mortgage held by the Equitable Life Assurance Society which the buyers agreed to assume and pay. A warranty deed was executed and placed in escrow with a bank in Colwich. The executed agreement contained the following restrictions:
“8. NON-ASSIGNMENT: The Buyer agrees that they will not assign this contract, nor any interest in said real property described herein without the prior-written consent of the Seller. It is mutually agreed between Seller and Buyer that the real estate herein described has been owned by the Seller and his ancestors for more than two generations, and in the event a sale is determined advisable by Buyer, the Seller reserves the right to negotiate a sale with Buyer with other members of Seller’s family. In the event that no sale is possible to another member of Seller’s family, he agrees to not unreasonably withhold his consent to assignment to a third non-family party.
“9. TERMINATION: It is agreed that time is of the essence of this contract, and in the event of the breach of any of the covenants and agreements herein contained by Buyer, or in the event of default by the Buyer in making any of the payments hereunder agreed to be made, including payments due to the first mortgage holder, such default continuing for a period not exceeding sixty (60) days, then in that event the Seller at his election may declare this contract terminated and all rights of the Buyer hereunder shall thereupon cease, and any and all payments made by Buyer hereunder whether to Seller or to the first mortgage holder, shall be retained by the Seller as liquidated damages and as rent for said real estate during the period of the agreement, and the Seller shall have the right to have said deed cancelled and to commence legal action to recover the possession of said real estate from the Buyer.”
Commencing in the latter part of 1972 or early 1973, the sons began borrowing money from the plaintiff, Tip Top Credit Union, under a line of credit arrangement for the purpose of obtaining working capital for the dairy business and for construction of a quonset hut on the home place. The sons with their wives executed a series of mortgages some of which covered the home place and some of which covered only other lands owned by the sons. On February 12, 1973, the sons and their respective wives executed a mortgage on the home place to Tip Top Credit Union in the amount of $50,000. On April 9, 1975, the sons and their wives executed a mortgage to Tip Top Credit Union covering the home place and other lands in the amount of $100,000.
In June of 1975, things were not going well financially for the sons and, at Tip Top’s request, the father and the sons with their respective spouses executed an agreement dated June 30, 1975, which was delivered to Tip Top Credit Union. This agreement provided in pertinent part as follows:
“AGREEMENT
“WHEREAS, JOSEPH A. LIES, a widower, hereinafter called ‘Seller’, has sold to JOSEPH N. LIES and DORIS C. LIES, husband and wife, and WILLIAM B. LIES and KAREN LIES, husband and wife, hereinafter called ‘Buyers’, under the terms of a certain installment contract, the following described property situated in the State of Kansas, County of Sedgwick, to-wit:
“The North 22 acres of the Southwest Quarter and the South 18 acres of the Northwest Quarter of Section 19, Township 26 South, Range 2 West of the 6th
Principal Meridian, Sedgwick County, Kansas [The home place], for the sum of twenty-four thousand and no/100 dollars ($24,000.00) for said real estate contract being dated August 1, 1968; and
“WHEREAS, the buyers propose to obtain a loan from the Tip Top Credit Union, Hillsboro, Kansas, which loan proceeds will be used to improve the property described above, (and/or for operational expenses), and which property will be mortgaged to the Tip Top Credit Union to the extent of the buyers’ interest in said contract and improvements made by buyers as security in connection with said loan.
“NOW, THEREFORE, in consideration of the foregoing, the seller agrees that he will not take any action to regain possession of the property except through judicial foreclosure. It is agreed by the seller and buyers that no legal action to rescind the above mentioned contract will be commenced by either of them, their assigns, or their successors in interest, without the consent of Tip Top Credit Union. The seller gives his consent to the buyers to mortgage their interest under the above mentioned real estate contract. In the event that the seller determines that judicial foreclosure under the real estate contract is necessary to protect his interest, it is hereby agreed that the Tip Top Credit Union will be provided thirty (30) days written notice prior to such action; during said 30 days, Tip Top Credit Union may have the option to purchase said contract from seller and pay off the unpaid principal and interest.
“In the event of the assignment of the seller’s interest in said contract, the seller agrees to give written notice to the Tip Top Credit Union of said assignment within ten (10) days of such assignment. This agreement shall be binding upon the heirs, successors and assigns of the above named seller and buyers.”
On March 11, 1976, the father and the two sons with their wives executed a mortgage in the amount of $78,750 covering tracts of land including the 40-acre home place. All parties agreed that the father signed this mortgage.
On June 29, 1976, a mortgage was executed in the amount of $78,750 which the district court found was signed by the father and the sons with their wives. At the beginning of this litigation, all defendants admitted that the father had signed the instrument, but later they disputed the authenticity of the father’s signature. That was the only issue of fact present in the case.
From this point on, the financial situation of the sons in the operation of the dairy farm continued to worsen. On February 26, 1979, the father filed an action in the district court of Sedgwick County to cancel the 1968 escrow agreement covering the home place. Tip Top Credit Union was never given any notice of the suit and was never made a party to the action. On March 30, 1979, the father was granted a judgment by default against the sons and their wives cancelling the 1968 escrow agreement.
On September 5, 1979, Tip Top Credit Union filed the present action in which it sought personal judgments on various notes executed by the defendants and foreclosure of the various mortgages. In addition, Tip Top prayed for an order directing the father, Joseph A. Lies, to convey the home place to Tip Top Credit Union, upon payment or credit given by plaintiff, under the escrow agreement of August 1968. Also, at the time the action was filed, Tip Top Credit Union held a security instrument involving certain personal property of the defendants which issues were resolved in the trial court and are not a part of this appeal. After this action was filed, the sons and their wives took bankruptcy.
After completion of discovery, a pretrial conference was held and, under the pretrial order, the following issues were to be determined by trial to the court:
(1) What rights did the father and the two sons and wives grant to the Tip Top Credit Union by the execution and delivery of the agreement of June 30, 1975?
(2) Whether or not the father, defendant Joseph A. Lies, signed the mortgage dated June 29, 1976.
(3) Whether or not the father, Joseph A. Lies, is estopped from denying his signature on the mortgage of June 29, 1976. The case was tried to the court on these issues, and, on October 13,1982, the court entered its findings of fact and conclusions of law and judgment in favor of plaintiff, Tip Top Credit Union.
The district court, in its judgment, ruled on the various issues which had been submitted to it for determination. The court construed the agreement signed by the father and the two sons and their wives dated June 30,1975, and, in substance, found (1) that it was the intent of all of the parties to the agreement to allow the sons to further extend a line of credit with Tip Top by using the home place as additional security for loans made by Tip Top to the sons; (2) that Tip Top Credit Union, by virtue of the agreement, received the right to secure its loans to the sons by the use of the 40-acre home place; and (3) that Tip Top was entitled to foreclosure of its mortgage of June 29, 1976, subject to the existing mortgage in favor of Equitable Life Assurance Society and the right of redemption in the father. The trial court then held that that part of the agreement which gave Tip Top Credit Union the option to purchase the 1968 escrow contract from the seller (the father) and pay off the unpaid principal and interest was invalid for the reason that, as a matter of law, a credit union does not have the power under the Kansas statutes to purchase real property under the facts presented in the case.
As to the second issue, the trial court found that the mortgage of June 29,1976, was executed by the father, Joseph A. Lies, and that he was bound thereby. The court then proceeded to enter a personal judgment against the father for the principal amount due plus interest on the note dated March 11, 1976, and an additional judgment for the principal amount due plus interest on the note executed June 29, 1976. This judgment was also ordered to be a judgment in rem as to the interest of the sons and their wives in the property. The court ordered foreclosure of the various real estate mortgages on the lands covered by each mortgage. It was ordered that the 40-acre home place and additional property immediately surrounding the home place be sold in a separate sale as one tract, and that all other lands covered by the various mortgages be sold at a separate sale. The father, Joseph A. Lies, took an appeal, and plaintiff, Tip Top, filed a cross-appeal.
On appeal, the defendant father first complains that the trial court erred in failing to state the controlling facts and legal principles in a manner sufficient to apprise the parties as to the reasons for the result reached, as required by K.S.A. 60-252(a) and Supreme Court Rule 165 (232 Kan. clii). We find no merit to this contention. The record discloses that the trial court’s memorandum opinion and journal entry addressed each of the issues submitted to it for decision and adequately set forth the facts and legal principles in support of the judgments which were entered.
Defendant next contends that the finding of the trial court that the father, Joseph A. Lies, signed the mortgage dated June 29, 1976, was not supported by substantial competent evidence. We have considered the record and concluded that there is substantial competent evidence which supports the finding of the trial court. The court had before it numerous documents which contained the admitted signature of the father, Joseph A. Lies, as well as the original of .the June 29, 1976, agreement. In his testimony, Joseph A. Lies did not state categorically that the signature was not his. His testimony was confused and somewhat unresponsive. Further he first admitted in his Answer to Request for Admissions that his signature was genuine. The court subsequently allowed him to withdraw this admission. The two sons also during discovery admitted that the signature of the father on the document was genuine. Although there was evidence presented by the defendants tending to show that it was not the father’s signature, the evidentiary record shows a bona fide factual dispute which the trial court resolved by finding that the father had signed the mortgage. It is not the function of an appellate court to retry that issue of fact, and the trial court’s finding of fact must stand on this appeal.
The defendant next maintains that the trial court erred in finding the mortgages dated March 11, 1976, and June 29, 1976, to be cumulative in nature. This again was a fact issue which the trial court resolved in favor of the plaintiff. The officers of the Tip Top Credit Union testified, without equivocation, that the mortgages were cumulative in amount. The trial court properly determined that issue on the basis of substantial competent evidence.
The defendant contends that the trial court erred in construing the June 30, 1975, agreement as a security device to secure the payment of loans to the sons, Joseph N. Lies and William B. Lies, by use of the property of Joseph A. Lies. We find no error in the ruling of the trial court. The evidence clearly showed that the two sons had purchased the 40-acre home place from their father, Joseph A. Lies, pursuant to the escrow agreement of 1968 which is set forth above. It is clear that, under the terms of the agreement, the sons were the equitable owners of the property, subject to the right of the father to collect the $24,000 purchase price including payment of the first mortgage held by Equitable Life Assurance Society.
In Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862 (1977), it was held in syllabus ¶ 1:
“The form of an agreement by which security is given for a debt is unimportant. If the purpose and intention behind a transaction is to secure a debt, equity will consider the substance of the transaction and give effect to that purpose and intention. A court sitting in equity is not governed by the strict rules of law in determining whether a mortgage has been created. The lien follows if the evidence discloses an intent to charge real property as a security for an obligation.”
In Fuqua, it was held that a quitclaim deed was an equitable mortgage and that it was proper for the court to decree foreclosure for nonpayment of the debt, subject to a right of redemption. It is clear to us that the escrow agreement of August 1, 1968, vested in the sons the equitable title to the property subject to the right of the father to secure payment of the agreed purchase price.
The trial court correctly held that the June 30, 1975, agreement, signed by the father and the sons and their wives, by its terms recognized the sons as buyers under the August 1968, escrow agreement and that they were the equitable owners of the property. By that agreement, the father unequivocally agreed that he would not take any action to regain possession of the property except through judicial foreclosure and that no equitable action would be taken to rescind the contract. The Tip Top Credit Union relied upon this agreement by extending further credit to the sons. The father violated that agreement by filing the action against the sons in February 1979, to cancel the escrow agreement. The trial court properly held that Tip Top Credit Union’s rights under the June 1975, contract were not adversely affected by that action, since Tip Top Credit Union was not notified nor made a party to the action. The trial court did not err in holding that the June 30, 1975, agreement was a security device to secure payment of loans made by Tip Top Credit Union to the sons by use of the 40-acre home place as collateral.
The final point raised by defendant, Joseph A. Lies, is that the trial court erred in its decree for foreclosure and sale of the land, because it subjected the interest of Joseph A. Lies to judgments having no connection with him and failed to accord Joseph A. Lies the priority in application of the sale proceeds which should belong to a guarantor. As noted above, the court ordered a separate foreclosure sale of the tract of land which was the subject of the real estate mortgage dated March 11, 1976, and of the real estate mortgage dated June 29, 1976, both of which included the 40-acre home place. These mortgages secured the personal judgment against Joseph A. Lies and the in rem judgment against the two sons and their spouses who, as noted above, had taken bankruptcy. We find no error in this order of the court. Also it should be noted that defendant Joseph A. Lies did not raise this issue at the trial court level and apparently had no objection as to the manner in which the land was to be sold on foreclosure.
The plaintiff, Tip Top Credit Union, filed a cross-appeal raising the sole issue that the trial court erred in holding invalid that portion of the June 30, 1975, contract which gave Tip Top the option to purchase the father’s interest in the 40-acre home place by paying off the unpaid principal and interest due under the 1968 escrow agreement. The trial court raised this issue on its own motion, holding that Tip Top Credit Union did not have the power under the Kansas statutes to purchase real property, and therefore, the option to purchase provided for in the June 1975, contract was subject to the defense of ultra vires. The district court noted that Tip Top was a credit union, a creature of statute, and that its powers were limited to those set out in K.S.A. Chapter 17, Article 22. The trial court concluded that the purchase of real property by a credit union was restricted by K.S.A. 17-2226 which stated, in substance, that credit unions may purchase real estate and improvements thereon for their use and occupancy. The trial court reasoned that, since Tip Top Credit Union had made no showing that it wanted to purchase the father’s interest in the 40-acre home place for the purpose of providing it a place for its use and occupancy, it had no power to purchase the property. The trial court erred in reaching that conclusion. The statute on which the court relied, K.S.A. 17-2226, was amended by the 1982 legislature effective July 1,1982, which was prior to the time this case was decided in the district court. The amended statute, K.S.A. 1983 Supp. 17-2226, provides in substance that a credit union may acquire, lease, hold, assign, pledge, sell or otherwise dispose of property, either in whole or in part necessary or incidental to its operations and purposes. Here the plaintiff as a credit union made loans to the father and sons secured by various real estate mortgages on lands including the 40-acre home place. Ry the June 30, 1975, contract Tip Top Credit Union was granted the right to purchase the interest of the father, Joseph A. Lies, under the August 1968, escrow agreement as a means of paying off a prior lien, thus enabling the credit union to protect its second mortgage on the property. In our judgment, Tip Top Credit Union clearly had the right to take such action. We hold that the trial court erred in holding invalid that portion of the June 30, 1975, contract which gave Tip Top Credit Union the option to purchase the father’s interest in the home place by paying off or giving the father credit for the principal and interest owing under the August 1968, escrow agreement.
The judgment of the district court is affirmed on the appeal and is reversed on the cross-appeal. The case is remanded to the district court for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Holmes, J.:
Everett L. Martin appeals his jury convictions of one count of voluntary manslaughter (K.S.A. 21-3403) and one count of second-degree murder (K.S.A. 21-3402). Defendant had been charged with two counts of murder in the first degree (K.S.A. 21-3401) in the killing of two neighbors. Defendant was also convicted of one count of aggravated battery (K.S.A. 21-3414), one count of aggravated assault (K.S.A. 21-3410), and two counts of aggravated assault on a law enforcement officer (K.S.A. 21-3411). The latter four convictions have not been appealed. The facts will be set forth in detail.
On September 21, 1981, defendant’s son Mike Martin (age 15) was playing football with a group of children in a neighborhood lot in Kansas City, Kansas. At one point during the game Kevin Keating (age 17), who had previously only been watching, ran onto the playing field and tackled Mike Martin after Mike caught a pass. Mike appeared to be injured and it was determined the next morning that he had dislocated his shoulder. Terry Martin, another of defendant’s sons, ran home ahead of Mike to inform his mother Mike had been injured. Defendant’s wife informed him that Mike had been badly hurt. Defendant later testified that he had heard of Kevin Keating’s reputation as being fairly skillful with a knife and for this reason, when defendant heard the news from his wife, he dressed and armed himself with a loaded handgun. The testimony as to Keating’s reputation was not corroborated by any other witness at trial.
After arming himself, defendant went to the football field, confronted Kevin Keating and requested Kevin to accompany defendant back home to see how badly Mike Martin was hurt. Upon arriving at the Martin home, Kevin Keating and Everett Martin gathered on the front lawn with Mike Martin and Juanita Martin, defendant’s wife. The four of them engaged in a conversation concerning the nature and extent of Mike’s injuries. Testimony varied as to what happened next, but several witnesses indicated that an argument occurred between Kevin Keating and Mrs. Martin. At that point Kevin Keating and the defendant, Everett Martin, were approximately two to three feet apart. Kevin Keating then moved his arm in what at least one witness perceived as an attempt to place his hand on Mike Martin’s shoulder to see how badly he was hurt. Defendant Everett Martin testified it appeared to him as though Kevin Keating moved his arm like he was reaching for a knife. This testimony was contradicted by other witnesses, including four members of defendant’s family. At this point defendant pulled out his gun and shot Kevin Keating. Defendant testified that he was not intending to shoot or kill Keating, that it was simply a fast reflex action which shocked and surprised him. No knife was found on Kevin Keating’s body.
Immediately after this shot was fired, defendant ran into his house and directed another son to call an ambulance. Defendant proceeded upstairs to his bedroom and armed himself with a carbine rifle and another handgun because, as he later testified, he believed that “in this kind of case police started shooting anyway” and as he had already shot Kevin Keating he felt he didn’t have a chance, and couldn’t see spending the rest of his life in jail. He also testified that he got his rifle out with some thought of shooting himself. Juanita Martin came upstairs into the bedroom and told defendant not to do anything else, that he had already done enough damage. He responded by saying that he had already gone too far, and told her to get the kids and get out of the house.
During this time Timmy Keating, brother of the deceased victim, ran home and told his mother, Mary Keating, that there had been a shot and that Kevin was lying on the ground. Mrs. Keating and a neighbor, Rebecca Trober, arrived at the Martin premises to aid Kevin. Again, testimony conflicted as to what happened next. Mrs. Keating testified that after she determined Kevin was dead she exchanged words with Mrs. Martin, who remained inside at an upstairs window. Testimony of every defense witness other than defendant, including members of his family, also placed Mrs. Martin inside the house, upstairs in a bedroom at the time of the words with Mrs. Keating. However, defendant testified that after he spoke with his wife he thought she went back downstairs and outside. Looking out the window of his bedroom he saw the top part of Mary Keating, and assumed she was approaching his wife in what he perceived to be a threatening manner. He did not see his wife in the yard at that time and neither did he see Rebecca Trober, who was kneeling over Kevin’s body. Intending only to scare the crowd away, defendant then fired two or three shots out the screened window toward the ground. Defendant testified he did not fire at any individual, that he aimed only at the ground, and he did not see Rebecca Trober until some time later. Notwithstanding his purported intentions, Mary Keating was shot in the arm and Rebecca Trober was killed. Immediately after being shot, Mrs. Keating ran towards the street and took cover behind a truck.
At trial Mrs. Keating disputed defendant’s testimony that prior to the shooting she raised her hands in any manner or moved towards the house or Mrs. Martin, who she said was not even outside the house.
By this time on the tragic evening, the police had arrived on the scene and called for Everett Martin to surrender. Rather than do so, defendant fired at the area where the police were located in order to scare them away. One bullet creased an officer’s hat and others hit the police vehicles. Later, after telephone contact was established between defendant and a crisis negotiator for the police department, defendant was finally persuaded to give himself up.
Everett Martin gave the police a full statement admitting the shootings. He was charged with two counts of first-degree murder for the deaths of Kevin Keating and Rebecca Trober, one count of aggravated battery for the shooting of Mary Keating, and four counts of aggravated assault on law enforcement officers for shooting at the police after they arrived outside his residence. The jury convicted Martin respectively of voluntary manslaughter, second-degree murder, aggravated battery, aggravated assault, and two counts of aggravated assault on a law enforcement officer. Defendant was found not guilty on the last count of aggravated assault on a law enforcement officer.
Defendant’s first claim on appeal is that the jury instructions submitted under the two counts of first-degree murder were erroneous and did not adequately present his defenses of self-defense or accidental killing. In connection with the killing of Kevin Keating, the trial court instructed the jury on murder in the first degree, murder in the second degree, voluntary manslaughter and involuntary manslaughter. The instruction on Martin’s theory of self-defense read:
“The defendant contends that he shot Kevin Keating because he thought Kevin Keating was about to pull a knife. As to this defense you are instructed that a person is justified in the use of force to defend himself against an aggressor’s imminent use of force to the extent it appears reasonable to him under the circumstances then existing.
“A person may lawfully use only such force, however, as may reasonably seem necessary to him in defending himself against an unlawful attack and serious bodily harm, but such person may not go further than appears reasonably necessary for such defense.”
No objection was made to this instruction. Defendant now contends the instruction constitutes clear error because it did not contain the words “or another” following the word “himself” in each paragraph of the instruction. Defendant’s position might have merit if there was any evidence that defendant fired the first fatal shot in defense of his son or wife. See K.S.A. 21-3211. However, at no time did defendant make any such assertion in the trial court and the meager evidence of any claim of self-defense was only as to the defendant himself. The instruction was a correct statement of the law based upon the evidence in this case and therefore cannot be considered clearly erroneous. The point is wholly without merit. K.S.A. 60-251(b). The in structions when considered together and as a whole, as they must be (State v. Korbel, 231 Kan. 657, 647 P.2d 1301 [1982]), adequately set forth defendant’s theories of self-defense in the killing of Kevin Keating. Defendant’s arguments with respect to a requested instruction on “accidental killing” are also found to be without merit.
Defendant also objects to the instructions given in connection with the death of Rebecca Trober. Again the court instructed the jury on murder in the first degree, murder in the second degree, voluntary manslaughter and involuntary manslaughter. No instruction on self-defense or defense of another was given. Defendant contends error in the involuntary manslaughter instruction and in the failure to give an instruction on defense of another. It appears that defendant’s argument is that when he saw Mrs. Keating advancing in what he perceived to be a threatening manner, presumably towards Mrs. Martin, his shots were fired in defense of his wife. The arguments lack merit for at least two reasons. First, defendant’s own testimony was that he fired out the window only to scare the people away and not with any intent to hit anyone. This precludes any argument that he intentionally shot at Mrs. Keating in defense of his wife. Second, the defense is not available under the factual situation which existed.
K.S.A. 21-3214(1) provides:
“The justification described in sections £1-3211, 21-3212, and 21-3213, is not available to a person who:
(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony.”
K.S.A. 21-3217 provides:
“A person is not authorized to use force to resist an arrest which he knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.”
It appears clear that there was no self-defense or “accidental killing” in the death of Rebecca Trober.
Defendant’s final claim on appeal is that the trial court wrongfully refused to allow cross-examination of state witnesses regarding the Keating family’s reputation for violence within the community. Defendant asserts that he didn’t know Kevin Keating prior to the fateful day, but knew only the general reputation of his family, and that this evidence is both necessary and relevant to prove defendant’s state of mind because self-defense is claimed. He relies on State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971), where we held that if the defendant claims self-defense, evidence of the victim’s violent nature is admissible and may be inquired into by the defendant. The State doesn’t deny that evidence regarding the reputation of Kevin Keating for violence is admissible and relevant, but points out that in this case the reputation of the victim’s family was not the basis for the self-defense claim. We agree. Defendant Martin himself testified that after his wife told him his son was hurt,
“And so I got up and put on my clothes. Reached into a drawer and got a T-shirt, and uncovered my .38.
“And I had heard stories about Kevin being pretty bad about a knife — carrying a knife lately. And so I put my .38 on my belt; put a shirt over it and went down the stairs.”
On appeal defense counsel states:
“In defendant’s mind, it was the Keating family and not any particular member . . . which created this fear and apprehension of harm requiring the need for arming himself prior to confronting the actual member of the family who hurt the defendant’s child.”
This statement is simply not borne out by the record. The defendant was not prohibited from inquiring into Kevin’s reputation, and the evidence at trial provided no basis for any broader inquiry. The trial court is granted broad discretion in controlling the scope of cross-examination and absent a showing of clear abuse of the exercise of that discretion there is no error. State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981). No abuse of discretion has been shown.
The judgment is affirmed. | [
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Whereas, Ben David Roselli is an attorney admitted to practice law in the State of Kansas, and
Whereas, on the 17th day of October, 1983, an information was filed in the United States District Court for the District of Kansas, Case No. 83-20072-01, which alleged:
“From on or about June 2, 1983, and continuing thereafter to on or about June 20, 1983, in the District of Kansas, and elsewhere,
BEN DAVID ROSELLI
and other persons, both known and unknown, willfully and knowingly did combine and conspire, confederate and agree together to commit an offense defined by Title 21, United States Code, Section 841(a)(1), that offense being the knowing and intentional distribution of cocaine, a Schedule II narcotic controlled substance.
“As part of said conspiracy and in order to effect the object thereof, the defendant performed the following overt act, among others,
“1. On or about June 20, 1983, Ben David Roselli distributed a quantity of cocaine.
“The foregoing was done in violation of Title 21, United States Code, Section 846 and Section 841(a)(1).”
and
Whereas, on the 18th day of October, 1983, Ben David Roselli entered a plea of guilty to the charge against him, the same being a felony, and
Whereas, on the 19th day of October, 1983, Ben David Roselli voluntarily relinquished his license and privilege to practice law in the State of Kansas, and
Whereas, after due consideration, the Court finds that respondent’s certificate to practice law should be cancelled and declared void and the voluntary relinquishment of his right to practice law be accepted.
Now, Therefore, it is Ordered, Adjudged and Decreed that Ben David Roselli be, and he is hereby disbarred from the practice of law in the State of Kansas and the privilege of Ben David Roselli to practice law in the State of Kansas is hereby revoked and the Clerk of the Appellate Courts is directed to strike the name of Ben David Roselli from the roll of attorneys in the State of Kansas.
It is Further Ordered that the certificate of Ren David Roselli to practice law in the State of Kansas is hereby cancelled and declared null and void and the costs of this action are assessed to Ren David Roselli.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the Clerk of the Appellate Courts shall comply with the requirements of Rule 217.
Ry Order of This Court dated this 21st day of October, 1983. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action for a declaratory judgment brought by the plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), against its insured, the defendant, Peggy Kroeker, to determine State Farm’s right to subrogation or reimbursement for personal injury protection (PIP) benefits previously paid to the defendant under its automobile insurance policy for funeral and survivors’ benefits.
The pertinent facts in the case are not greatly in dispute and essentially are as follows: On April 1,1978, defendant’s husband, Glen E. Kroeker, was involved in an automobile accident with Lonita V. Skaggs. Both drivers died as a result of this collision and both were insured by State Farm. Mr. Kroeker was insured under several automobile insurance policies issued by State Farm, each of which contained statutory mandated PIP or no-fault coverage. On April 21, 1978, State Farm paid defendant the sum of $1,000 in PIP funeral benefits. Mrs. Skaggs, the tortfeasor in this action, had a $50,000 liability policy with State Farm. In its evaluation of the accident between its two insurers, State Farm concluded that Mrs. Skaggs was wholly at fault and that the value of defendant’s claim against the Skaggs’s estate was at least equal to the $50,000 liability limit of her policy. On June 8, 1978, State Farm offered defendant the sum of $49,000 in settlement of her claim against Mrs. Skaggs. This amount represented the Skaggs’s policy limits of $50,000 less the $1,000 PIP funeral benefits which were previously paid and to which State Farm was asserting its subrogation rights. Defendant rejected this offer. Over the next seven months, State Farm paid defendant additional PIP survivor benefits totaling $4,550.
On August 8, 1978, Peggy Kroeker filed suit in Barber County against the estate of Lonita V. Skaggs to recover damages resulting from the wrongful death of Glen E. Kroeker. On October 26, 1978, Peggy Kroeker, the Skaggs estate, and State Farm entered into a partial settlement of plaintiff s claim which was reflected in an order filed in the wrongful death action in Barber County District Court. Stipulations of the parties were submitted to the district court and approved. The agreed order of the court set forth the stipulations as follows:
“FIRST: State Farm Automobile Insurance Company is the liability insurance carrier on the vehicle driven by Lonita V. Skaggs. It was that vehicle that collided with Glen E. Kroeker, causing his wrongful death.
“SECOND: The total liability insurance available on the State Farm insurance policy is $50,000.
“THIRD: State Farm Automobile Insurance Company has previously paid to Mrs. Kroeker the surviving widow and heir of Glen E. Kroeker, the sum of $5,550.00. $1,000 of this sum was under the funeral benefit and the balance under PIP. State Farm claims that it is entitled to recover the sums that it has previously paid to the said Peggy Kroeker out of the $50,000 liability coverage.
“FOURTH: The said $50,000 is not ample compensation to the heirs of the decedent Glen E. Kroeker for his wrongful death under 60-1904.
“FIFTH: Lonita V. Skaggs was negligent and her negligence was one of the direct causes of the death of Glen E. Kroeker.
“SIXTH: Counsel representing the Estate of Lonita V. Skaggs and counsel representing State Farm Automobile Insurance Company are agreeable, providing it meets the Court’s approval, to pay to the Clerk of the District Court of Barber County, Kansas in this case, the policy limits; i.e., the sum of $50,000. Said counselors further agree that at a later time the Court may hear and determine the amount of damage the heirs of the Estate of Glen E. Kroeker should receive under K.S.A. 60-1904, and any such award wherein it exceeds the sum of $50,000 shall be listed under the Fourth class of claims against the Lonita V. Skaggs Estate and thus paid in proportion to the other said Fourth class claims.
“SEVENTH: It is agreed between counsel, out of the $50,000 being paid into Court on the Judgment entered herein, that the said $5,550.00 claimed by State Farm under its right of subrogation and/or lien or reimbursement right for PIP payments paid or payable to the Kroeker family, shall be disbursed back to State Farm and that the rights of the parties in and to such sum or similar sums shall be determined by a separate declaratory judgment action to be filed and determined in the District Court of Sedgwick County, Kansas. In the event it is determined that the money is rightfully the property of the heirs of Glen E. Kroeker, such sum shall be paid to the widow Peggy Kroeker with interest thereon at the rate of 8% per annum from the date of this Journal Entry.
“EIGHTH: It is further agreed that the payment of the $50,000 and the disbursement thereof by the Court to the heirs of the deceased Glen E. Kroeker shall not operate as a release or in any way extinguish any right that the heirs of Glen E. Kroeker may have for his wrongful death against any other party whatever.
“NINTH: It is further agreed that the Judge of this Court will by subsequent order, determine the apportionment of the proceeds paid to this Court, pursuant to this agreement.
“WHEREUPON the Court, after being advised of the above, finds first that the agreements entered into between the parties are acceptable to this Court and reasonable, and thus should by this Court be entered into an order.
“IT IS THEREFORE BY THIS COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that this Court finds Lonita V. Skaggs, deceased, was negligent and that her negligence was one of the direct causes of the wrongful death of Glen E. Kroeker. That the heirs of Glen E. Kroeker have suffered a loss by reason of his death that exceeds the sum of $50,000, the amount to be determined by this Court or some other Court at a later hearing.
“IT IS FURTHER ORDERED by this Court that the statements and agreements stated into the record by counsel are a part of this Order as if set out herein in full. As a result thereof, this Court finds that the State Farm Automobile Insurance Company has met its obligation to pay the amount of its liability coverage towards any judgment that may be rendered on behalf of the heirs of Glen E. Kroeker, deceased, for his wrongful death upon its payment to the Clerk of the District Court of Rarber County, Kansas the sum of $50,000. The Court further finds that this Journal Entry is to be considered in the nature of a Covenant Not to Sue and it expressly reserves the rights of the heirs of Glen E. Kroeker, deceased, to proceed against any other person or party for the damages sustained by the wrongful death of Glen E. Kroeker.”
On April 30, 1979, State Farm filed its petition for declaratory judgment in Sedgwick County against Peggy Kroeker, asserting that it was entitled to receive, through subrogation rights, the sum of $1,000 which had been paid to Mrs. Kroeker for funeral benefits and $4,550 paid in survivor benefits. Thereafter, on June 26, 1979, an order was entered in the Barber County case approving a pretrial settlement between Peggy Kroeker and the administrator of the estate of Lonita V. Skaggs, deceased, reserving the right of the plaintiff to sue other negligent parties. State Farm’s attorneys did not appear in this proceeding, nor did they approve the journal entry of judgment. The pertinent provisions of the order approving partial settlement are as follows:
“1. For the purpose of settlement, it is agreed by and between the parties that the decedent Lonita V. Skaggs was negligent in the operation of her motor vehicle, which negligence was the proximate cause of the accident herein which resulted in her death and the death of Glen E. Kroeker, and the decedent Glen E. Kroeker was free from negligence.
“2. The parties have arrived at a compromise settlement concerning the amount of damages sustained by the plaintiff herein as follows:
Glen E. Kroeker’s wages for his Fire Department income only, disregarding his separate income from his lawn-care service:
$559.84/2 wks. x 26 x 40 years = $582,233.60
Damages for mental anguish, suffering and bereavement; loss of society, companionship, comfort and protection; loss of marital care, attention, advice and counsel; loss of consortium; loss of filial care and attention; loss of parental counsel: 25,000.00
Total Stipulated Damages: $607,233.60
“3. State Farm Mutual Automobile Insurance Company has previously paid its policy limits of $50,000.00, as set out in the Order Approving Partial Settlement dated October 26, 1978, which reduces the claim to be entered as a fourth class claim in the Estate of Lonita V. Skaggs to $557,233.60. No claim is presented herein which is duplicative of Personal Injury Protection Benefits received by plaintiff.
“4. It is further agreed that the approval of the amount of damages of $557,233.60 shall not operate as a release or in any way extinguish any right that the heirs of Glen E. Kroeker may have for his wrongful death against any other party whatsoever.
“5. It is further agreed that the agreement to compromise the amount of damages herein shall not be binding against the parties in any other action taken by the heirs of Glen E. Kroeker or binding upon any other party to any action taken by the heirs of Glen E. Kroeker.
“WHEREUPON, the Court, after being advised of the above, finds first that the agreements entered into between the parties are acceptable to this Court and reasonable, and thus should by this Court be entered into an order.
“IT IS, THEREFORE, BY THIS COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that this Court finds that Lonita V. Skaggs, deceased, was negligent and that her negligence was one of the direct causes of the wrongful death of Glen E. Kroeker; that the heirs of Glen E. Kroeker have suffered a loss by reason of his death in the amount of $607,233.60, of which $50,000.00 has been paid, leaving an unsatisfied amount of damages in the amount of $557,233.60 which should be transferred to the case, In the Matter of the Estate of Lonita V. Skaggs, Deceased, Case No. 78-P-19, in the Nineteenth Judicial District, Barber County, Kansas, Probate Department, as a fourth class claim.
“IT IS FURTHER BY THE COURT ORDERED that this Order is to be considered in the nature of a covenant not to sue and that it expressly reserves the rights of the heirs of Glen E. Kroeker, deceased, to proceed against any other person or party for the damages sustained by the wrongful death of Glen E. Kroeker.” (Emphasis supplied.)
On April 17, 1980, Peggy Kroeker received payment from the Clerk of the District Court of Barber County, as the distribution of the assets of Lonita V. Skaggs estate which were to apply toward her fourth class claim in the estate. This distribution depleted the assets of the estate.
In April of 1982, a pretrial conference was held in the declaratory judgment action filed in Sedgwick County. In the pretrial conference order, plaintiff State Farm’s contentions and theories of recovery were essentially as follows; State Farm made a $50,000 liability settlement with Mrs. Kroeker as a result of her claim made against another State Farm insured, the estate of Lonita V. Skaggs. In making this settlement, State Farm took the position that it was entitled to be subrogated to an amount of $5,550, which represented PIP benefits which had previously been paid Mrs. Kroeker under the Kroeker’s policy with State Farm.
In the pretrial order defendant’s position is stated essentially as follows: Peggy Kroeker denied State Farm’s claim of subrogation or subtraction rights. She denied the liability payment of $50,000 was duplicative of PIP benefits paid. She claimed that the payment of $50,000 by State Farm was nothing other than a tender of State Farm’s liability limits which admittedly was due the heirs of Glen E. Kroeker and which applied as a credit against the ultimate judgment entered against the Lonita V. Skaggs estate in the Barber County District Court in the amount of $607,233.60, from which a $50,000 deduction was made, leaving unsatisfied damages on Peggy Kroeker’s claim in the amount of $557,233.60, which was allowed as a claim against the estate of Lonita V. Skaggs. The defendant also raised other issues, in which she asserted that the insurance policy attachment which provided for State Farm’s reimbursement for PIP benefits paid was not an enforceable provision of the insurance contract because of defects in its execution. The trial court ruled as a matter of law that defendant Kroeker could not present evidence to show that the $50,000 liability payment made by State Farm was not a final settlement and was not duplicative of PIP benefits made by plaintiff State Farm.
Thereafter, on August 30, 1982, certain issues were tried to a jury which brought in a special verdict finding that Mr. and Mrs. Glen E. Kroeker had actually received the endorsement to their insurance policy which provided for subrogation rights to State Farm for PIP benefits paid. The district court then accepted the jury verdict and entered judgment in favor of State Farm, holding that State Farm’s deduction of PIP funeral and survivor benefits of $5,550 from the liability settlement made with State Farm on October 26, 1978, was proper.
From this judgment, defendant Peggy Kroeker filed her appeal, claiming the district court erred in ruling as a matter of law that the defendant, as the insured, could not present evidence to show that the $50,000 liability payment made by State Farm, as Skaggs’s liability carrier, was not a final settlement and was not duplicative of PIP payments made by State Farm. Defendant also contends that the trial court erred in holding that the insurance policy endorsement, which provided for State Farm’s reimbursement for PIP benefits paid, was an effective, enforceable provision of the insurance contract at the time the fatal accident occurred.
The primary question presented on this appeal is whether plaintiff-appellee State Farm, as insurer of the Kroeker’s vehicle, is entitled to reimbursement for the full amount of PIP benefits previously paid to defendant Peggy Kroeker. A determination of this issue requires another look at the provisions of K.S.A. 40-3113a which provides as follows:
“40-3113a. Remedy against a tortfeasor, insurer or self-insurer subrogated, when; credits against future payments; limitation of actions; attorney fees, (a) When the injury for which personal injury protection benefits are payable under this act are caused under circumstances creating a legal liability against a tortfeasor pursuant to K.S.A. 40-3117, the injured person, his or her dependents or personal representatives shall have the right to pursue his, her or their remedy by proper action in a court of competent jurisdiction against such tortfeasor.
“(b) In the event of recovery from such tortfeasor by the injured person, his or her dependents or personal representatives by judgment, settlement or otherwise, the insurer or self-insurer shall be subrogated to the extent of duplicative personal injury protection benefits provided to date of such recovery and shall have a lien therefor against such recovery and the insurer or self-insurer may intervene in any action to protect and enforce such lien. Whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured person, his or her dependents or personal representatives prior to the completion of personal injury protection benefits, the amount of such judgment, settlement or recovery which is in excess of the amount of personal injury protection benefits paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of said personal injury protection benefits.
“(c) In the event an injured person, his or her dependents or personal representative fails to commence an action against such tortfeasor withjn eighteen (18) months after the date of the accident resulting in the injury, such failure shall operate as an assignment to the insurer or self-insurer of any cause of action in tort which the injured person, the dependents of such person or personal representatives of such person may have against such tortfeasor for the purpose and to the extent of recovery of damages which are duplicative of personal injury protection benefits. Such insurer or self-insurer may enforce same in his or her own name or in the name of the injured person, representative or dependents of the injured person for their benefit as their interest may appear by proper action in any court of competent jurisdiction.
“(d) In the event of a recovery pursuant to K.S.A. 60-258a, the insurer or self-insurer’s right of subrogation shall be reduced by the percentage of negligence attributable to the injured person.
“(e) Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, his or her dependents or personal representatives in the amounts determined by the court.” (Emphasis supplied.)
The question as to a PIP carrier’s right to reimbursement was presented to this court in Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977). In that case, Easom sustained personal injuries in an automobile accident between her automobile and one driven by Hill. Hill was employed by Harris. The defendant, Farmers Insurance Company, promptly paid Easom $4,731.31 in PIP benefits. Subsequently, Easom filed an action against Hill and Harris claiming $20,000 in damages for injuries sustained. They denied liability and also challenged the extent of plaintiffs injuries. While the case was pending and before the trial, plaintiff settled with Hill and Harris for $9,500, and judgment was entered in that amount on November 3, 1975. On the next day, Farmers Insurance Company, as PIP carrier, filed its petition to intervene in the action, claiming a lien and requesting reimbursement of PIP benefits paid to the plaintiff, Easom. The trial court permitted Farmers to intervene and ruled that Farmers was entitled to total reimbursement of PIP benefits paid in the amount of $4,731.31. Easom appealed. In the opinion starting on page 420, the court considered the language in K.S.A. 1975 Supp. 40-3113(c). It noted the language in the statute to the effect that the insurer was entitled to recover personal injury protection benefits which are “duplicative of personal injury protection benefits received.” The primary issue presented was what portion of the settlement was duplicative. The court in Easom concluded that the reimbursement section of the statute was designed to prevent a double recovery by the insured where the net recovery by the insured was sufficient. In Syllabus ¶ 4 it is stated:
“The reimbursement of a PIP insurer for PIP benefits ‘received’ or ‘payable’ under K.S.A. 1975 Supp. 40-3113(a) is limited to those damages recovered by an injured insured which are duplicative of damages included in such PIP benefits.”
The court rejected the theory of equitable apportionment of PIP benefits, a position adopted by the Florida courts. Easom is important in the determination of the present case because it establishes the following basic principles of law to be applied when a PIP carrier claims the right to reimbursement out of the insured’s recovery against a tortfeasor:
The right of a PIP insurer to be reimbursed for PIP benefits paid is limited to those damages recovered by the injured insured which are duplicative of the PIP benefits;
Damages recovered are duplicative when the failure to reimburse the PIP carrier would result in a double recovery by the insured; and
In determining the right of an insurer to reimbursement for PIP benefits paid under K.S.A. 40-3113a, the PIP benefits are presumed to be included in any recovery effected by an injured insured, either by way of settlement or judgment, in the absence of proof to the contrary, and the burden of supplying such proof is upon the insured.
The issue as to a PIP insurer’s right of reimbursement was again presented to the court in Russell v. Mackey, 225 Kan. 588, 592 P.2d 902 (1979). Russell involved a dispute between an insured and her PIP carrier over the subrogation rights of the insurance company for PIP benefits paid, where the insured recovered damages for her personal injuries by a settlement and judgment against the third-party tortfeasor which released the tortfeasor from any further liability. Plaintiff Russell was injured in an automobile accident and was paid $2,552 in PIP benefits by Hartford Insurance Company. Russell filed an action against the tortfeasor, Mackey, to recover damages for personal injuries sustained in the automobile accident. Russell and Mackey settled Russell’s total claim and, by agreement, a judgment was entered in favor of plaintiff Russell and against Mackey, in the amount of $15,000, which was paid into court. At this time, a dispute arose between plaintiff Russell and her insurance carrier, Hartford, over reimbursement for the PIP benefits paid to Russell. Russell filed a motion for distribution of the funds. At the same time, Hartford filed a motion for reimbursement of PIP benefits. At the hearing held on the two motions, Russell offered to prove that the personal injury action against the defendant Mackey involved a case of clear liability for severe injuries and that, for settlement purposes, the case was worth a minimum of $30,000. Russell further offered to show that defendant Mackey lacked the financial resources to pay any judgment out of her own funds and that the limits of liability under defendant’s insurance policy was $15,000. Russell’s evidence would show that she was forced to accept the settlement of $15,000, because that was all the money available from Mackey’s insurance and there were no other funds from which a greater amount might be paid. Russell further offered to prove that a fair settlement in the case against Mackey would have been $30,000 had the defendant been financially responsible. The district court held as a matter of law that, while the $15,000 settlement was not full compensation to Russell, Russell had accepted that sum in full settlement of the case and, therefore, Hartford Insurance Company was entitled to full repayment of the PIP benefits paid, since the sums paid under the settlement were duplicative of the PIP benefits.
Plaintiff Russell on appeal contended that the trial court erred in denying her an evidentiary hearing after her offer of proof, where she could have shown that the $15,000 settlement was not fully duplicative of the PIP benefits paid by Hartford and, therefore, Hartford was not entitled to full reimbursement for the PIP benefits paid. On appeal, this court affirmed the district court and held that K.S.A. 40-3113a should be construed to mean that, if the injured insured settles his total claim with the tortfeasor, including those elements of damage represented by PIP benefits, the recovery is duplicative, since it includes the PIP benefits. The court reasoned that it is the insured who has been given control of litigation against the third-party tortfeasor for the first eighteen months following the accident. Only after the expiration of eighteen months is the PIP insurer entitled to bring an action to recover PIP benefits paid. The insured, by settling his entire claim with the third-party tortfeasor, can effectively destroy the right of the insurer to bring an action to recover from the tortfeasor for the PIP benefits paid. If the insured does not wish to settle his claim with the tortfeasor on this basis, he can attempt to work out a settlement with the PIP insurer for a reduction in the amount to be paid in settlement for its subrogation rights. Since the plaintiff in Russell settled her total claim, including all elements of damage represented by the PIP benefits, for the sum of $15,000, the plaintiff had effectively barred the PIP carrier from bringing an action against the third-party tortfeasor to recover the PIP benefits paid. Under the circumstances, the PIP carrier was entitled to recover the full amount of PIP benefits paid, less a reduction for a proportionate share of the attorney fees as fixed by the court.
Russell thus stands for the principle that, if the injured insured settles his total claim with the tortfeasor and releases the tortfeasor from all further liability, the recovery is duplicative as a matter of law, and the PIP carrier has a lien and is entitled to reimbursement for the total amount of PIP benefits paid out of the recovery made by the insured, subject to the two statutory exceptions provided for in sections (d) and (e) of K.S.A. 40-3113a. Turning to the facts in the case now before us, it is obvious that Russell v. Mackey does not control the result in this case. As noted above, in Russell the plaintiff settled her total claim with the tortfeasor. In the present case, there was only a partial settlement of the case by the insured Kroeker. Under the order approving partial settlement dated October 26, 1978, State Farm was permitted to pay into court the sum of $50,000, the limit of liability under the tortfeasor’s policy. It was stipulated and agreed by the parties that the $50,000 was not ample compensation to the heirs of Glen E. Kroeker for his wrongful death. The parties further agreed that at a later time the court would determine the amount of damages suffered by the. heirs of Glen E. Kroeker and any award assessed above the sum of $50,000 should be listed as a fourth class claim against the estate of Lonita V. Skaggs and paid in proportion to the other fourth class claims. Although State Farm was to be paid the sum of $5,550 out of the $50,000 settlement paid into court, State Farm’s right to reimbursement for the PIP benefits would be determined in a separate declaratory action.
Thus in the present case, plaintiff did not settle her total claim against the tortfeasor. She proceeded to have her fourth class claim adjudicated and her damages were found by the district court of Barber County to be in the amount of $607,233.60, on which a credit was given for the $50,000 paid by State- Farm on behalf of Lonita V. Skaggs’s estate, leaving an unsatisfied judgment for the amount of $557,233.60. The situation in this case is the same as if Peggy Kroeker had sued the estate of the third party Lonita V. Skaggs and received a judgment for $607,233.60 and then Skaggs’s insurance company had paid $50,000 to apply on the judgment.
Although the facts appear to be uncontroverted, a factual issue may remain in the case as to whether or not the $50,000 recovered by the injured insured heirs is duplicative of those elements of damages included in the PIP benefits paid by State Farm. Applying the principles of law established in Easom and Russell the $50,000 paid by Skaggs’s insurance carrier is to be considered as duplicative only if that payment will result in a double recovery for the heirs of Glen E. Kroeker. Peggy Kroeker has the burden to prove that the $50,000 paid into court did not afford her a double recovery. This is a fact issue on which both parties are entitled to have a hearing and to submit any evidence that they might have on the issue. On remand of the case, if it appears from the evidence that the actual damages suffered by defendant Kroeker were in excess of $50,000 plus the $5,550 PIP benefits paid so that she has not been compensated for all of her damages, then the district court should find that the damages recovered by the defendant are not duplicative, and State Farm is not entitled to be reimbursed for the PIP payments paid. We hold that the trial court erred in determining the issue of double recovery on summary judgment as a matter of law and that the case must be reversed and remanded to afford the parties a hearing on that issue.
The result which we have reached in this case seems inevitable, if any effect is to be given at all to the word “duplicative” as contained in K.S.A. 40-3113a. Clearly the payment of the entire $50,000 to the insured Kroeker will not result in a double recovery, if it can be shown that her actual damages exceeded $50,000 plus the $5,550 PIP benefits previously paid. It is clear that the issue presented is one of statutory construction, and this court has the duty to carry out the legislative intent where that is possible. It must be noted that in K.S.A. 40-287, which provides for subrogation rights to an insurer providing uninsured motorist coverage, the word “duplicative” is not used by the legislature. The insurance carrier is entitled to be subrogated, to the extent of uninsured motorist payments paid, to the proceeds of any settlement or judgment obtained by the insured without restriction. Certainly the legislature must have intended a different result by using the word “duplicative” in K.S.A. 40-3113a.
We also believe it important to note that in those states that have enacted no-fault statutes which specifically provide that a PIP insurance carrier is entitled to reimbursement for PIP benefits paid from any recovery by the insured if the recovery is duplicative, the courts of those states have consistently taken the identical position which we have taken in this case. The general rule followed in the United States is stated in 7A Am. Jur. 2d, Automobile Insurance § 443, p. 104, as follows:
“Where an insurer has the right to indemnification, such right extends only to repayment for the benefits called for under the no-fault statute. Since the purpose of indemnification of the insurer is to prevent double recovery by the insured, the insurer’s right to indemnification relates only to additional compensation received by the insured for the same damages as were covered by the personal injury protection benefits. If the payment received from the tortfeasor does not duplicate the PIP benefits received from the insurer, the insurer has no right to receive reimbursement out of such payment.”
We note the following decisions which follow the general rale: Bonsall v. American Motorists, 109 Mich. App. 674, 311 N.W.2d 824 (1981); Pfeffer v. State Auto. and Cas. Underwriters, 292 N.W.2d 743 (Minn. 1980); Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982); Blaylock v. Ga. Mutual Ins. Co., 239 Ga. 462, 238 S.E.2d 105 (1977). See also the annotation at 69 A.L.R.3d 830. Counsel for State Farm has not directed our attention to a single jurisdiction, having a similar statutory language, where a result has been reached contrary to that reached in this case.
The defendant next contends for a variety of reasons that the district court erred in refusing to hold that the insurance policy endorsement, which provided State Farm the right to be reimbursed for PIP funeral and survivor benefits paid, never became an effective and enforceable provision of the insurance contract. We have considered the claims of the defendant in this regard and find them to be without merit.
The judgment of the district court is reversed. The case is remanded to the district court with directions to afford the parties a hearing to determine whether the $50,000 payment made by State Farm, as the liability insurance carrier for Lonita V. Skaggs, was a matter of fact duplicative of PIP payments made by plaintiff State Farm to the defendant, Peggy Kroeker.
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The opinion of the court was delivered by
Lockett, J.:
This is an original action in mandamus, brought by Attorney General Robert T. Stephan, Secretary of Corrections Michael barbara, and other Department of Corrections officials (petitioners). The action was brought against Judge Maurice P. O’Keefe, Jr., and various inmates at the Kansas State Penitentiary. All respondents except Judge O’Keefe have now been dismissed from this action. The petitioners request the Supreme Court issue an order prohibiting Judge O’Keefe from appointing inmates at the Kansas State Penitentiary (KSP) to represent other inmates at KSP in district court proceedings. An order was issued by the Supreme Court on April 5, 1984, staying proceedings in the district court until further order of the Supreme Court.
Judge Maurice P. O’Keefe, Jr. is a district judge in the First Judicial District of Kansas, the district in which KSP is located. Judge O’Keefe has appointed KSP inmates Arthur Murley, Jerry Wayne Smith, and Michael Pyle, none of whom are licensed to practice law in Kansas, to appear on behalf of other KSP inmates as legal counsel in his court. The inmates as plaintiffs requested Murley, Smith, and Pyle be appointed as legal counsel to represent them in civil actions filed by the inmates/plaintiffs in the district court against prison officials. Four civil cases involving inmate representation are still pending in the district court.
Petitioners first assert an action in mandamus is the proper method to challenge the district court’s act of appointing Murley, Smith, and Pyle to act as attorneys.
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state, directed to some inferior court, tribunal, board, or to some corporation or person either compelling or enjoining the performance of a particular act. The act which the writ directs must result from the official station of the party or from operation of law. Mandamus is a remedy at law to which the rules of civil procedure relating to actions at law are applicable. K.S.A. 60-802.
Mandamus is an extraordinary remedy which is available only in cases in which the usual form of procedure is powerless to afford relief. It is not a common means of obtaining redress, but is available only in rare cases, and as a last resort, for causes which are really extraordinary. The writ of mandamus seeks to enjoin an individual or to enforce the personal obligation of the individual to whom it is addressed. It rests upon the averred and assumed fact that the respondent is not performing or has neglected or refused to perform an act or duty, the performance of which the petitioner is owed as a clear right. The writ does not reach the office nor can it be directed to the office. It acts directly on the person of the officer or other respondent, compelling him to perform a plain duty, or enjoining him from performing a wrongful act. It is, therefore, in substance, a personal action against the respondent and not one in rem against the office. The writ will not ordinarily issue unless there has been a wrongful performance or actual default of duty.
The Supreme Court of Kansas has been granted original jurisdiction in proceedings in mandamus by the Kansas Constitution, art. 3, § 3. This jurisdiction is plenary and may be exercised to control the actions of inferior courts over which the Supreme Court has superintendent authority. In addition to constitutional authority, the Kansas Supreme Court is guided by the Kansas statutes. K.S.A. 60-801 provides:
“Mandamus is a proceeding to compel some inferior court, tribunal, board or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
Owing to the summary and drastic character of the writ of mandamus, this court has properly erected many safeguards. The writ of mandamus is discretionary with the court and will not issue as a matter of right. Unless a respondent’s legal duty is clear, die writ should not issue. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 668 P.2d 172 (1983).
The only acts of public functionaries which the court ever attempts to control by either injunction or mandamus are such acts which are by their nature strictly ministerial. A ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 671 P.2d 559 (1983).
A trial court’s discretion cannot be controlled by mandamus. Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked. Wesley Medical Center v. Clark, 234 Kan. 13, 669 P.2d 209 (1983).
The Supreme Court has general administrative authority over all courts in this state. Kan. Const, art. 3, § 1. The issue raised in this action directly affects the operation of Kansas courts and is of statewide importance. Where a petition for mandamus presents an issue of statewide importance and concern, the court may exercise its original jurisdiction in mandamus to settle the is sues raised. Wesley Medical Center v. Clark, 234 Kan. 13. This is a proper issue for the court to accept.
When does an individual have a right to be represented by an attorney? An individual whose life or liberty is threatened by a criminal charge, felony, or misdemeanor has a constitutional right to be represented by an attorney. If the individual is indigent, the prosecuting sovereign, i.e., city, state or federal government, must insure that an attorney is appointed to represent the individual whose life or liberty is jeopardized. When an individual’s property or claim is at stake in a civil action, that individual is also entitled to have an attorney represent his cause — but only if he can afford to hire one or there is a special law or statute that provides for the appointment of an attorney to represent an indigent claimant or defendant.
In 1963, the United States Supreme Court required the appointment of an attorney for an indigent criminal defendant charged with a felony. Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963), 93 A.L.R.2d 733. That court tied the requirement for appointment of counsel for the indigent criminal defendant to the due process clause of the Fourteenth Amendment. The general right to counsel in a criminal case has not affected civil actions where a party is unable to afford an attorney. The Sixth Amendment to the Constitution of the United States, providing for the assistance of counsel to the accused “in all criminal prosecutions,” is limited to criminal prosecutions as stated in the amendment, and as a result has had no bearing on the question of whether there is a right to counsel in a civil action or administrative proceeding.
Kansas allows an individual to proceed in forma pauperis in a civil action or appeal if the individual meets the indigent standard required for the waiver of the cost to file an action. The expansion of the right to an attorney for individuals as defendants in a criminal action has not been extended by this state to civil actions.
The indigent litigant is not completely without assistance of counsel. In some areas of this state the needs of the poor for counsel in civil actions have been somewhat alleviated by the private bar, organized private legal aid and public legal assistance.
There ar no Kansas cases that require an indigent prisoner be afforded the right to court-appointed counsel in a civil case where the same has been denied as a constitutional right to an indigent freeman who is a party to a civil action. The indigent prisoner is treated the same as any individual of society not imprisoned who is unable to afford the services of an attorney to prosecute or defend his cause. We are, therefore, unable to say that prisoners are significantly more disabled with respect to legal representation than are other potential indigent civil litigants.
At common law a prisoner was deemed civilly dead and therefore lacked the legal capacity to sue or be sued. In Kansas, prior to 1970, prisoners serving sentences for a term of years or life lost all civil rights except the right and power to make contracts concerning their property. K.S.A. 21-134 (Corrick). A person serving a life term was declared civilly dead. K.S.A. 21-118 (Corrick). Confinement in a penitentiary for either a term of years or life suspended a convict’s right to sue. Hammett v. San Ore Construction Co., 195 Kan. 122, 402 P.2d 820 (1965). Now under our statutes, a person convicted in any state or federal court of a crime punishable by death or imprisonment for a term of one year or longer, and imprisoned, is ineligible to hold any public office in Kansas, or to register as a voter or to vote in any election under the laws of Kansas, or to serve as a juror. K.S.A. 21-4615. The disability imposed under the former statute has now been removed, allowing a prisoner to sue or be sued in a civil action in the courts of this state.
The constitutional guarantee of providing for open courts and insuring a civil remedy for injuries to persons and property is a statement of our philosophy and a general rule which can be used to solve civil conflicts. This right is generally regarded as one of the most sacred and essential constitutional guarantees. However, the guarantee creates no new rights but merely is declaratory of our fundamental principles. In light of this guarantee, it is the policy and the obligation of the state to furnish and of the courts to give every litigant his day in court and a full and ample opportunity to be heard. This right extends to everyone who may be materially affected by the action of the court in a legal proceeding. The guarantee secures and places every citizen within the protection of the law of the land. It insures the right of every person protected by it to seek remedy by court action for any injuries done to him or his personal property. The guarantee entitles the citizen to have justice administered according to the law without denial or delay. A litigant is assured the right to prosecute or defend an action, provided he prosecutes or defends the action as contemplated by law. Since a prisoner can sue or be sued in this state he must be afforded the right to his day in court.
The right to a day in court means the right to be afforded an opportunity to be heard. The right to be heard does not insure an indigent or indigent prisoner litigant the right to an attorney to prosecute or defend his civil cause. A litigant’s right of access to the courts applies also to proceedings before commissions, boards, and bureaus.
28 U.S.C. § 1915 (1982) authorizes federal courts to allow both civil and criminal appellants to proceed in forma pauperis if they are indigent. The statute also allows the federal judge to request an attorney to represent any indigent person who is a party in a civil action. Federal district courts have no duty to appoint counsel to represent indigent plaintiffs, imprisoned or not, in civil actions, but such courts are endowed with discretion whether to do so. Willett v. Wells, 469 F. Supp. 748 (E.D. Tenn. 1977). State prisoners were found not significantly more disabled with respect to legal representation in the prosecution of civil rights complaints than were other potential civil rights litigants;. Miller v. Smith, 431 F. Supp. 821 (N.D. Tex. 1977).
Kansas law prevents denial of access by the placing of undue restrictions upon prisoners’ reasonable access' to 'the courts. Under the Sixth and Fourteenth Amendments, a. person brought to trial in the state or federal court must be afforded the' right to the assistance of counsel before he can be validly convicted and punished by imprisonment. In civil actions, where the indigent litigant who is not in jail maybe afforded assistance of the private bar, organized private legal aid, or public legal assistance, the indigentprisoner has access to Legal Services for Prisoners, Inc.
Legal Services for Prisoners, Inc. (Legal Services, Inc.) is a private, nonprofit state-funded corporation which has been in existence since 1972. The program provides legal assistance to all indigent inmates in the Kansas prison system. It employs four full-time attorneys and one part-time litigation attorney who are assisted by law students from both Kansas law schools.
Specifically, the program operates for the purpose of accomplishing the following:
1. To assist indigent inmates with the wide variety of unique legal problems; which arise out of and during their incarceration; to identify and assist those prison inmates with real prison problems; and to augment the normal institutional counseling services, thereby rendering the institutions less subject to disturbance.
2. To discourage frivolous and unsubstantial litigation.
3. To resolve, when possible, at the lowest administrative level prison complaints and grievances which would otherwise burden correctional staff and the courts.
Legal Services, Inc. provides a variety of services for prisoners. Throughout its history, it has concentrated on providing comprehensive services to the maximum number of inmates possible. The program is accessible to all indigent inmates in the custody of the Kansas Secretary of Corrections, a large number of whom seek and receive such assistance.
Legal Services, Inc. provides assistance and services; to inmates in any type of legal matter, except a lawsuit for money damages from which a private attorney could derive a fee. The same restriction is- usually incorporated when public legal assistance programs are available to indigent civil litigants in the-various areas of the state. The reason for the restriction is; to' insure that public money will not be spent where- there e-xists; a method through private enterprise to prosecute the- civil claim..
A prisoner who does not receive assistance through Legal* Services, Inc. may employ a private- attorney to; litigate' hi's; cause-of action. The creation of the attorney-client relationship', however, is essentially contractual. The employment ©fan attorney must be agreed to by both the potential client and1 the attorney. Lawyers are entitled to compensation for services rendered to) their clients. Contingent fee contracts between a client and an. attorney are recognized as valid. Individuals who have- claims; that may lack merit usually have difficulty in retaining an attorney to represent them under a contingent fee contract. An indigent whose claim may lack merit will find it difficult to contract for the services of an attorney under a contingent fee-agreement and therefore must champion his own cause or defense.
Since the prisoners have a right to their day in court, they must be afforded the right to be heard either pro se or through counsel in a civil action. The right to be heard does not guarantee an indigent prisoner the right to counsel in a civil action. It does, prevent the denial or undue restriction of prisoners’' reasonable-access to the courts. It would be an abuse of discretion for prison-regulations to interfere with an inmate’s opportunity to procure with reasonable promptness, or to communicate in a reasonable manner with, an attorney to represent him in civil actions.
There is no evidence before the court in this action that the petitioners have denied prisoners the opportunity to retain counsel to represent them in civil matters, or interfered with the prisoners’ access to the courts. Here, if a prisoner is financially unable to retain an attorney to represent him, he has the opportunity to enter into an attorney-client relationship with an attorney under a contingent fee contract or request the assistance of an attorney provided by Legal Services, Inc.
Judge O’Keefe believed the federal courts allow inmates to give legal assistance to their fellow inmates in the federal district courts of Kansas, including representing them in civil cases that concern prison matters, but that there are no viable alternatives for the inmates to retain or have counsel provided in state courts. The federal cases indicate where there is sufficient assistance, either from the bar association or from legal services, the inmate is not entitled to have the services of a fellow inmate as legal counsel. However, Judge O’Keefe believed when that legal assistance is ineffective, or nonexistent, the inmates are entitled to have other inmates represent them in court if they so desire.
The question posed is, where a Kansas district judge determines that inmates of a prison do not have effective and meaningful access to the courts in civil matters, may he then appoint other inmates to appear in the district court, to act as an attorney, prosecuting or defending the prisoner’s claim?
Judge O’Keefe states the leading federal case on representation is Johnson v. Avery, 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969). Johnson, a state prisoner, repeatedly assisted other prisoners to prepare petitions for post-conviction relief. Johnson was placed in disciplinary confinement and deprived of certain privileges for violations of a prison regulation prohibiting inmates from helping other inmates to prepare writs and other legal papers. The United States Supreme Court determined that unless and until the state provided some reasonable alternative to assist prisoners, the state could not validly enforce the regulation. The Supreme Court determined that a state prison regulation barring inmates from assisting other prisoners in preparation of petitions for post-conviction relief was invalid as in conflict with the federal right of habeas corpus, despite the state’s claim that regulation was necessary to maintain prison discipline, where the state did not provide an available alternative to assistance provided by other inmates. Another case cited by Judge O’Keefe is Vaughn v. Trotter, 516 F. Supp. 886 (M.D. Tenn. 1980), in which the court, citing Wolff v. McDonnell, 418 U.S. 539, 592, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974), stated as follows:
“ ‘[T]he Supreme Court held unconstitutional a rule prohibiting inmates giving to or receiving from other inmates legal assistance on civil matters unless the prison or its officials provide a “reasonable alternative.”
The Trotter court further stated on page 893 as follows:
“In guaranteeing the right of mutual inmate assistance in order to assure access to the courts, the Supreme Court has created a derivative right, vested in jailhouse lawyers, to provide legal assistance to others. The clear right to receive assistance necessarily creates the concomitant right to provide it. It has been held to be fundamental that ‘absent reasonable alternatives, and subject only to reasonable restrictions, inmates must be allowed to assist other prisoners in the preparation of legal petitions.’ ” Emphasis supplied.
In Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), cert. denied 450 U.S. 1041 (1981), and Bounds v. Smith, 430 U.S. 817, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977), the courts stated that an inmate has a fundamental constitutional right of access to the courts and that prison authorities are required to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.
In Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978), the court stated at page 231 as follows:
“[C]ertain types of inmate lawyering [may be restricted] under certain circumstances. Thus writ writing for a profit has been prohibited [cite omitted], and an inmate has no right to be a writ writer during times when he is assigned to perform other work.”
“The mere fact that a jailhouse lawyer is not schooled in law cannot in itself justify prohibiting his consulting with other inmates on legal matters.” n. 9.
The Buise court stated it is well established that the state bears the burden of demonstrating the adequacy of such an alternate means of access such as legal services or an adequate library. The law is best set forth in Wetmore v. Fields, 458 F. Supp. 1131 (W.D. Wisc. 1978), where the court stated as follows:
“Where a prison provides inmates with adequate assistance from persons trained in the law, the right to inmate legal assistance, which is premised upon absence of reasonable alternatives for legal aid, is not applicable. In such a situation, a prison can restrict inmates from giving legal assistance to other prisoners, and the prison is not required to provide an adequate law library.” pp. 1142-43.
“Where a prison does not provide adequate assistance from persons trained in the law, the right to inmate legal assistance applies. In that situation, the prison cannot prohibit inmates from rendering legal assistance to other ignorant, unskilled, untutored or illiterate inmates, and the prison must provide an adequate law library for those capable of using it.” p. 1143.
A careful reading of Vaughn v. Trotter, 516 F. Supp. 886, Wolff v. McDonnell, 418 U.S. 539, Ramos v. Lamm, 639 F.2d 559, Bounds v. Smith, 430 U.S. 817, Buise v. Hudkins, 584 F.2d 223, and Wetmore v. Fields, 458 F. Supp. 1131, reveals that all of these .cases -addressed die issue of whether an inmate may assist ¡another inmate In drafting pleadings and memoranda or in using a law library. None of ¡these -cases even infer that an inmate may appear in court on behalf of another Inmate. The United States District ‘Court for the District of Kansas recently considered the issue of inmate assistance to -other Inmates in Smith v. Halford, 570 F. Supp. 1187 (D. Kan. 1983). The court acknowledged that inmates may assist other inmates as writ writers, but again, did not imply in any manner that inmate assistance could extend into the courtroom.
Contrary to the position of -the Honorable Judge/Respondent, petitioners believe that Fair v. Givan, 509 F. Supp. 1086 (N.D. Ind. 1981), is applicable to the case at bar. Fair, a state prisoner, brought an action seeking injunctive and declaratory relief in order that he might use legal assistance of another inmate in various legal matters in state courts.. The court ruled:
“Fair-states that the Porter Superior Court had granted him the assistance of -'Owen in his -cause of action. However, it is well established that a criminal -defendant has no constitutional right to have an unlicensed attorney or layman re-present him. In -particular, the Sixth Amendment does not create a right to be represented by a non-attorney lay person. United States v. Taylor, 569 F.2d 448 (7th Cir. 1978), cert. den., 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978); U.S. v. Peterson, 550 F.2d 379 (7th Cir. 1977). See also, United States v. Benson, 592 F.2d 257 (5th Cir. 1979); United States v. Anderson, 577 F.2d 258 (5th Cir. 1978); United States v. Bertolini, 576 F.2d 1133 (5th Cir. 1978); Weber v. Garza, 570 F.2d 511 (5th Cir. 1978); State of Nebraska v. Stoner, 201 Neb. 664, 271 N.W. 348 (1978).
“Turner v. American Bar Assoc., 407 F. Supp. 451 (N.D. Tex., W.D. Pa., N.D. Ind., D. Minn., J.D. Ala., W.D. Wis. 1975), aff'd sub nom; Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976) and Pilla v. American Bar Assoc., 542 F.2d 56 (8th Cir. 1976), held that there was insubstantial historical support for the plaintiffs’ -contention that they had a right to have an unlicensed layman assist them under (fhe-Sixth Amendment. 407 F. Supp. at pages 476-477. To hold otherwise would amount .to (court sanction of the unauthorized practice of law.” 509 F. Supp. at 1090.
The United States Supreme Court decisions guaranteeing prisoners the right to seek assistance and advice on legal matters from other inmates in certain matters do not sanction representation during litigation by fellow prisoners who are lay persons and are not parties. In all courts of the United States, the parties may plead and conduct their own cases personally or by counsel. 28 U.S.C. § 1654 (1982).
The federal courts have consistently rejected attempts at third-party lay representation. By law an individual may appear in federal courts only pro se or through legal counsel. Our policy is the same.
One of the many good reasons for distinguishing assistance and advice from representation is that a party may be bound, or his rights waived, by his legal representative. When that representative is a licensed attorney there are grounds for belief that the representative’s character, knowledge and training are equal to the responsibility. In addition, remedies and sanctions are available against a lawyer that are not available against the fellow inmate, including misconduct sanctions and malpractice actions. Conversely, if a party inmate commits a costly procedural or other error, the fault is his own and may not be shifted to his in-house advisor, because the right to assistance protected by case law is meant to further access to the courts, not to shield an inmate against responsibility for errors once access has been obtained. Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41 (1st Cir. 1982).
In Kansas a state prisoner is allowed to assist other prisoners’ preparation of legal matters. The Department of Corrections has adopted a regulation which allows an inmate to give, but not to charge for, assistance in legal matters to another inmate when such assistance is requested by another inmate. K.A.R. 1983 Supp. 44-12-702. Such authority does not confer upon the prisoner allowed to assist others in legal matters the status of an attorney. The power of the regulation goes no further than the prison walls, it is not binding on the courts of this state. It is for the courts to determine who may appear to assist a litigant in an action.
Petitioners argue the appointment of inmates to represent other inmates in district court proceedings permits unauthorized persons to practice law before the courts.
Petitioners claim K.S.A. 7-126 codifies the Supreme Court Rules relating to the admission of attorneys. These rules establish educational, moral character and examination requirements for applicants, the standards for issuance of temporary permits to practice and the standards for legal interns.
K.S.A. 7-104 provides the procedure and circumstances under which an attorney licensed in another state may appear in the courts of this state. The statute also provides that “nothing in this section shall be construed to prohibit any party from appearing before any of said courts, tribunals or agencies, in his or her own proper person and on his or her own behalf.” (Emphasis supplied.)
Petitioners submit that these statutes and rules clearly identify all instances in which a person may appear in a legal capacity in Kansas courts, i.e., as an attorney regularly admitted to the Kansas bar, as an attorney with a temporary permit, as a legal intern under the supervision of a licensed attorney, on motion as an attorney admitted to practice in another state, and as a nonlicensed person acting on his or her own behalf. There is nothing in the statutes or the court rules which even infers that there might be other circumstances in which a nonlicensed person may act in a legal capacity in a Kansas court.
Disciplinary Rule 3-101 (A), 232 Kan. clxxxiii, of the Code of Professional Responsibility, provides:
“A lawyer shall not aid a non-lawyer in the unauthorized practice of law.”
This court in State, ex rel., v. Hill, 223 Kan. 425, 426, 573 P.2d 1078 (1978), adopted the test for determining what is the unauthorized practice of law thusly:
“ ‘The main general test in unlawful practice of law cases seems to be whether or not an attorney-client relationship exists. That is, whether the person whose conduct is under scrutiny represented or implied he had legal knowledge beyond that of a layman and provided “professional” assistance to a “client.” The customer pays for the “skill,” “special knowledge” or “expertise” of the seller. There is a personalization of services provided. That is, the customer provides the data or raw material and the “expert” assembles, compiles, organizes, etc. and using the “expertise” (real or imagined) provides a legal service.’ ”
Although it is open to question whether the inmates appointed to act as legal counsel are being paid or receiving a benefit for their services, there can be no question whether these inmates are claiming an expertise beyond that of a layman or that they are personalizing their services for their inmate “clients.” Thus, there can be no question the appointed inmates are engaged in the unauthorized practice of law. They obviously are.
In Bounds v. Smith, 430 U.S. 817, the United States Supreme Court required states to assist inmates in the preparation and filing of meaningful legal papers by providing adequate law libraries or adequate assistance from persons trained in the law. The court acknowledged that inmates may assist each other in preparing such papers, and the Department of Corrections has adopted a regulation that allows such assistance.
To give inmates a right to be represented by individuals not licensed to practice law merely because they are prisoners violates any concept of fundamental fairness. Other persons, not incarcerated, who lack sufficient funds to hire an attorney are not permitted to have a nonlawyer represent them in a court of law. If the court were to decide that because many inmates are indigent, they may be represented by nonlawyers in court, such a decision, would open the door to demands from nonincarcerated indigent or poor persons for the same privilege under the constitutional right of equal protection.
Here Judge O’Keefe determined that litigant prisoners were not afforded meaningful access to the courts or proper assistance to protect their rights in civil actions. To remedy the situation, he authorized nonlawyer prisoners to act as counsel, if requested, for their fellow prisoners. He, as a district judge, in effect conferred upon certain individuals the status of counsel to appear in court on a specific type of case.
“Counsel,” as referred to in the Sixth Amendment to the Constitution of the United States, does not include a lay person; rather “counsel” refers to a person authorized to practice law. United States v. Grismore, 546 F.2d 844 (10th Cir. 1976). The words “counsel” and “attorney” have fixed and universal significance referring to a class of persons who are by license constituted officers of the court. As licensed officers of the court they are empowered to appear in court to prosecute or defend claims of their clients. This license allowing persons to act professionally for others places special duties, responsibilities, and liabilities upon the attorney,
The practice of law is intimately entwined with the exercise of judicial power in the administration of justice. The right to define and regulate the practice of law naturally and logically belongs to the judicial department of government. Under Article 3, Section 1 of the Constitution of Kansas only the Supreme Court has the inherent power to prescribe conditions for admission to the bar, and to define, supervise, regulate and control the practice of law. Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960).
This court has constitutional, statutory and inherent jurisdiction to inquire by what authority a district judge allows one not approved by the Kansas Supreme Court to practice law in this state and to make appropriate orders relating thereto. A proceeding in the nature of mandamus is appropriate for that purpose.
In the interpretation of the laws and administration of justice it is essential that there be members of the bar with ability, adequate learning and sound moral character. One of the important functions of this court is to admit only such persons to the practice of law in the courts of this state. From the facts pled and admitted, the district judge authorized certain individual prisoners to engage in the practice of law without authority to so act.
If, after a proper hearing, Judge O’Keefe finds that there has been a denial of or undue restrictions upon the prisoners’ reasonable access to the courts, appropriate and conventional means must be followed. The inherent power of the supreme court to regulate, supervise and control the practice of law before the courts of this state forbids a district judge from usurping that power by appointing prisoners, not licensed or authorized to the practice of law by this court, to represent fellow prisoners in civil actions in the courts of this state.
Relief in the nature of mandamus in case No. 56,548 is granted. The orders of the district judge appointing KSP inmates Arthur Murley, Jerry Wayne Smith, and Michael Pyle, none of whom are licensed to practice law in Kansas, to appear on behalf of other KSP inmates in civil actions in the district court are vacated. Judge O’Keefe is hereby ordered to cease and desist appointing inmates at the Kansas State Penitentiary to represent other inmates at the Kansas State Penitentiary in district court proceedings.
Case No. 56,771 is by order of this court consolidated with No. 56,548. Relief in the nature of mandamus in case No. 56,771 is denied; the order issued April 5, 1984, in No. 56,771 staying further proceedings in the district court is hereby vacated.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the defendant, the Director of the state penitentiary at Lansing, from an order of mandamus issued by the district court. Appellee-plaintiff, Joe Arney, is an inmate of the penitentiary and appellee-plaintiff, Ferrine, Inc. (Ferrine), is a corporation whose business includes the production of television programs. The television show “Lie Detector” was one of its productions. Appellees sought an order in mandamus directing the defendant to allow Ferrine to administer a polygraph examination to Arney and have the examination videotaped for presentation on the program. The district court granted the order and the Director has appealed. We reverse.
Ferrine was the producer of “Lie Detector,” a national television show hosted by a well-known attorney who first pi'esents the background of guests who claim their reputation, credibility, or responsibility for an event has been wrongfully adjudged by others. These guests are then administered a polygraph examination by an expert technician for the purpose of validating the guests’ stories, with both the test and the results being shown on television. The results may or may not be favorable to the guest. Plaintiff Arney, who has consistently maintained his innocence for the murder and other crimes of which he was convicted and imprisoned almost ten years ago (State v. Arney, 218 Kan. 369, 544 P.2d 334 [1975]), saw in this show an opportunity to get a free polygraph examination and to get his story before the public. He contacted the producers about an appearance. Ferrine was interested in his story.
On February 21, 1983, a representative of Ferrine contacted Mr. Troy Baker, administrative assistant to the Director of the penitentiary, about the possibility of videotaping the examination of inmate Arney. Mr. Baker indicated that he personally saw no problem with the visit as proposed, but that final approval could only be obtained from the Director, who was out of town at the time. Ferrine decided to go ahead with the story. The next day Mr. Baker contacted Ferrine representatives suggesting they send a letter of format and request to enter the penitentiary. The letter was sent the same day. Six days later, on February 28, 1983, a Ferrine representative again called Mr. Baker, who informed him that a Department of Corrections meeting was scheduled for March 1, at which Ferrine’s request would be considered. On March 2nd the Director told Ferrine he had forwarded the request to the Secretary of Corrections, and he expected a decision the next day. On March 4, 1983, the Director denied permission for Ferrine to enter the prison. By this time, in reliance on the earlier favorable representations, the show’s producer had invested approximately $30,000 in preparation for the interview and filming.
Appellees filed a petition in the District Court of Leavenworth County on March 5th, seeking an order directing prison officials to allow the visit as planned. A hearing on the petition was set for Monday, March 7th. At the outset of the hearing on March 7th, the Director argued that the nature of the petition was a motion for habeas corpus dealing with the conditions of Arney’s confinement as an inmate. On this ground the Director moved to dismiss the case for plaintiff’s failure to exhaust administrative remedies. Plaintiffs’ counsel responded that the petition was strictly in the form of mandamus and the court took the motion for dismissal under advisement and proceeded with the hearing. At the conclusion of the testimony the court denied the defendant’s motion, agreeing that the nature of the petition was mandamus. We agree with that determination of the trial court.
The court, in its decision granting mandamus, identified a number of competing interests at stake in the case, primarily the inmate’s First Amendment rights of speech and expression and his right to counsel and assistance in pursuing post-conviction remedies as opposed to the State’s interest in the unhampered ability to run its prisons and maintain security. The court also gave consideration to the fact that Ferrine had already expended $30,000. The court found the critical element to be the absence of a written policy by the prison authorities regarding access between inmates and the news media, as a result of which decisions could only be made on a case-by-case basis by the director. The court perceived these decisions as unavoidably arbitrary due to the lack of a written policy, and thus subject to review by the court. In its ensuing review, the court employed a balancing test, weighing the harm to the State if the order were to issue against the harm to inmate Arney’s rights if relief were to be denied. On balance the court judged the inmate’s interests to outweigh those of the prison administration. The court granted appellees’ request, ordering the Director to permit Ferrine access to the prison by 3:30 p.m. that day. The district court denied appellant’s motion to stay the proceedings pending appeal. Defendant immediately filed a notice of appeal and a motion to stay the judgment of the district court with the Kansas Court of Appeals. The stay was granted prior to the 3:30 p.m. deadline. The appeal has been transferred to this court pursuant to K.S.A. 20-3018(c).
At the outset appellees contend that the application of the remedy of mandamus is not subject to attack asserting that the Director failed to object at the trial level. The contention lacks merit. The petition of the plaintiffs did not specifically designate their legal theory and the Director attempted to secure a dismissal on the grounds tire petition was in the nature of habeas corpus and Arney had not exhausted his administrative remedies. The court held, and we agree, that the petition asserted a cause of action in mandamus and granted the order of mandamus. The issue of whether that order was correct is properly before this court on appeal.
Before turning to the merits of the appeal, certain basic principles of the use of mandamus will be reviewed. K.S.A. 60-801 defines mandamus as
“a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
It is well established that mandamus will not lie for the performance of an act involving discretion on the part of a public official. Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960). In Lauher v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 128-29, 402 P.2d 817 (1965), we said:
“It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station, that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks.”
As early as 1888, Justice Valentine in Martin, Governor v. Ingham, 38 Kan. 641, 651, 17 Pac. 162, stated:
“The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus, are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to he performed.”
Under K.S.A. 60-801 a duty which may be enforced by mandamus can arise either from the office of the Director or by operation of law. Was the Director under a duty to permit visitation between Arney and representatives of Ferrine for the purpose of administering a polygraph test and to videotape the procedures for use on the television program? We think not.
The statutory duties of a director of a Kansas correctional institution are set forth in K.S.A. 1982 Supp. 75-5252, which provides:
“Subject to the general supervision of the secretary of corrections and applicable rules and regulations adopted by the secretary, it shall be the duty of the director of each correctional institution:
(a) To oversee the government and discipline of the correctional institution, and to superintend all business concerns thereof.
(/;) To give necessary directions to the officers and employees and to examine whether they have been careful and vigilant in their respective duties.
(c) To examine into the state of the correctional institution and for the health, conduct and safekeeping of the inmates.
(cl) To use every proper means to furnish employment to the inmates most beneficial to the public and best suited to their several capacities under the direction of the secretary.
(e) To take charge of all real and personal property belonging to the state in and about the correctional institution or appurtenant thereto.”
The statute also makes a director’s duties subject to the rules and regulations adopted by the secretary of the department of corrections. In the rules and regulations, inmate visitation is governed by K.A.R. 1982 Supp. 44-7-104. Under K.A.R. 1982 Supp. 44-7-104(a)(3), unrestricted visitation is permitted by certain state officials, the inmate’s attorney, and members of the clergy. Other than these people, an inmate is entitled to submit a list of ten friends or relatives whom he or she desires to have visit in the institution and this list is then processed by the administration, which determines whether permission for visitation will be granted. K.A.R. 1982 Supp. 44-7-104(a)(2). It does not appear in the record that Ferrine, Inc. was listed by Arney as a “friend” for the purposes of visitation. Outside of these two groups of people, a director’s responsibilities concerning requested visits are as follows:
“Those individuals requesting visits with an inmate, who are not designated on the list [submitted by the inmate], shall be interviewed and identified by authorized personnel. If the requested visits conform to institutional, facility and departmental requirements, one (1) visit may be approved pending further investigation and approval of subsequent visits.” K.A.R. 1982 Supp. 44-7-104(a)(3). (Emphasis added.)
Thus it appears clear that there is no absolute duty which devolves upon the Director by statute, regulation or by the office itself which would require the Director in this case to grant the requested interview. There was no duty to allow access to Ferrine, and Arney did not follow the proper procedures to seek permission for the interview. Assuming that the “Lie Detector” program could be considered as being news media, which is by no means established, our conclusion that the Director was under no affirmative duty to permit the visit by virtue of statute or departmental regulation is supported by the following statement appearing in the department’s internal management guidelines: “All decisions concerning media access to correctional facilities shall be made by the principal administrator [institutional director].” Kan. Dep’t. Corr., Internal Mngmt. Pol. and Proc., Sec. No. 08-104, p. 1 (1982). Sec. No. 08-104, approved by the Secretary of Corrections August 15, 1982, sets forth the policy and procedure for media access to correctional institutions.
Any duty, the performance of which can be compelled by mandamus, must therefore arise solely by operation of law. Do the nature and degree of the plaintiffs’ legal rights under the Constitution create a duty on the part of the Director, as a state official, to permit visitation between the media and a specifically designated inmate? The answer is no. Plaintiffs’ rights under established constitutional law do not rise to the level creating any duty which may be enforced against the appellant. For the purpose of further discussion we will assume that the program “Lie Detector” is a part of the news media, although such an assumption is not borne out by the record. To the contrary, the trial judge refused to make any such specific determination when he stated in his decision: “I don’t know whether they [Ferrine, Inc. and the program “Lie Detector”] truly would qualify as news media.” However, the case was decided at the trial level and has been presented on appeal as being a First Amendment question involving news media and we will consider it in the same fashion.
Both the appellees and the trial court relied on Main Road v. Aytch, 522 F.2d 1080 (3d Cir. 1975). That case held unconstitutional a prison superintendent’s denial of inmate requests to hold news conferences where permission was withheld in order to avoid public criticism by the inmates of two state agencies. Guided by the constitutional principle that “any limitation or infringement on the expression of ideas must bear a substantial relationship to a significant government interest unrelated to the suppression of expression,” (Main Road at 1087), the defect found by the Third Circuit Court of Appeals was that the superintendent’s ban on media contacts had not been applied in a neutral fashion with regard to the content of the expression. Superintendent Aytch refused to permit inmate press conferences concerning the services of two public agencies, press conferences which he believed might entail public criticism of those agencies, yet he allowed other inmate press conferences on topics which he did not disapprove. We find the facts of that case distinguishable from those present here, and of little support for any duty on the part of the State to permit the mutual access and visitation sought by plaintiffs.
The district court judge in this case interpreted Main Road as supporting an inmate’s right of some access to the media. However, in Main Road, the Third Circuit recognized that inmates retain only limited First Amendment rights after incarceration, and that even a sweeping ban on interviews between reporters and inmates specifically designated by those reporters, is constitutionally proper as long as the policy is applied uniformly and without discrimination:
“So long as this restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the ‘appropriate rules and regulations’ to which ‘prisoners necessarily are subject, . . .’ and does not abridge any first amendment freedoms retained by prison inmates.” 522 F.2d at 1087. (Emphasis in original.)
An inmate’s right of access to the news media is only a qualified right, and gives rise to no affirmative duty on the part of prison officials other than to regulate that right uniformly, consistent with other governmental interests’ relating to prison administration including prisoner’s rights.
Appellees’ reliance on Main Road v. Aytch is based on the assertion that the Director’s decision in this case was arbitrary, and thus reviewable, because it violates due process requirements that any denial must be based on written policy when it deals with a constitutional right. It is correct the decision in Main Road was based partially on the absence of any statutes, ordinances, or regulations defining the scope of the superintendent’s discretion. The court stated:
“A public official may not constitutionally possess unrestricted power to license or to prohibit the exercise of First Amendment rights according to the official’s own conception of what may be the socially beneficial course.” 522 F.2d at 1088.
However, combined with the lack of written standards in that case was overwhelming evidence that the superintendent there exercised his discretion based largely on the anticipated content of the speech.
In the present case much is made of the lack of a written policy by the Director governing visits of the type proposed by plaintiffs. The allegations that no written policy exists are not completely accurate. As previously indicated the Secretary of Corrections on August 15, 1982, issued a written policy and procedure covering news media access to the correctional facilities. (Kansas Department of Corrections, Internal Management Policies and Procedures § 08-104.) The procedure, while not comprehensive, does provide written guidelines for news media access. In addition, this was a unique request and the first occasion that the Director had been faced with a determination of whether the filming of a commercial television entertainment program would meet the guidelines established by the Secretary of Corrections and whether such an intrusion would be in the best interests of all parties. The presence of written departmental criteria and the absence of any content-based discrimination on the part of the Director are sufficient to overcome the lack of a more detailed express written policy on the subject, and serve to distinguish the present case from Main Road v. Aytch.
No affirmative duty to permit this visit is imposed on the Director by virtue of any rights residing in appellee Ferrine, Inc., the film company. The trial court rejected out-of-hand its claim of a “right to visitation.” Even under our assumption that the program qualifies as “news media” under constitutional analysis, something which is by no means certain, we would agree with the district court’s decision in this regard. See Houchins v. KQED, Inc., 438 U.S. 1, 57 L.Ed.2d 553, 98 S.Ct. 2588 (1978); Pell v. Procunier, 417 U.S. 817, 41 L.Ed.2d 495, 94 S.Ct. 2800 (1974); and Saxbe v. Washington Post Co., 417 U.S. 843, 41 L.Ed.2d 514, 94 S.Ct. 2811 (1974). As stated by Chief Justice Berger in Houchins, “[T]he media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.” 438 U.S. at 16.
In addition to the argument that there was no written policy, Arney claims an absolute right of access to the media under the First Amendment. This claim is governed by the federal Supreme Court’s decision in Pell v. Procunier, 417 U.S. 817. In Pell, state prison inmates and journalists brought actions attacking the constitutionality of a state regulation prohibiting face-to-face interviews between news media representatives and individual inmates whom the representatives specifically named and requested to interview. In the consideration of face-to-face communications between inmates and the media, the Court stated:
“[I]t is obvious that institutional considerations, such as security and related administrative problems, as well as accepted and legitimate policy objectives of the correctional system itself, require that some limitation be placed on such visitations. So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that, in drawing such lines, ‘prison officials must be accorded latitude.’ ” 417 U.S. at 826.
Based primarily on the security considerations of prison administration the Court concluded that where there are alternative channels of communication open to prison inmates, a restriction on one manner of communication is constitutionally permissible under the First and Fourteenth Amendments as long as the restriction operates in neutral fashion without regard to the content of the expression. Pell, 417 U.S. at 828. The available alternative means of communication identified in Pell mirrors those existing for inmate Arney in the present case: communication by mail; visitation rights with family, clergy, attorneys, and friends of prior acquaintance; and the opportunity to communicate with the press or other members of the public through those persons permitted to visit him at the prison. Finally, the Court addressed the role of the judiciary with regard to these decisions when made by prison administrators:
“Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve those interests are relevant in gauging the validity of the regulation.” 417 U.S. at 827.
Arney’s constitutional rights were not violated by the Director’s decision to deny the interview between the plaintiffs.
Finally, Arney asserts that the Director’s actions affected Arney’s rights to counsel and pursuit of post-conviction remedies. Precisely how these rights are infringed by plaintiffs inability to take a polygraph examination on television is unclear, and we agree with the State that whatever the relationship, it is so tenuous as to be without merit. In Kansas, polygraph examinations are inadmissible in court except by stipulation of the parties, and any of the other proposed uses of the results by plaintiff in pursuit of his post-conviction remedies are pure speculation. Additionally, Arney has in no way been denied access to counsel, and his assertion that “counsel” and the show are somehow related is frivolous.
Returning to the basic elements of the proper use of mandamus, as set forth early in the opinion, the trial court saw a need to adopt a balancing test of the respective rights of the plaintiffs as opposed to the position of the Director to determine whether a duty existed. The trial court resolved its balancing test in favor of plaintiffs. However, the need to adopta balancing test or the use of a balancing test is inimical to the right to mandamus. The process adopted by the trial court recognized there was no clear duty upon the Director and, absent illegal, arbitrary or unreasonable action, mandamus is not a proper remedy. We find no abuse of discretion in the Director’s decision which would constitute an illegal, arbitrary or unreasonable act justifying the application of mandamus. See, State ex rel., v. Unified School District, 218 Kan. 47, 50, 542 P.2d 664 (1975).
K.A.R. 1982 Supp. 44-15-101 et seq. sets forth a comprehensive grievance procedure by which inmates at state institutions are to proceed when they believe that they have not been properly treated or have been denied some right. The administrative remedies provided by the regulations should be exhausted before the court determines to adjudicate an alleged grievance.
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The opinion of the court was delivered by
Miller, J.:
The plaintiff, Melba Jeanne Divine, guardian and conservator of James L. Winfree, appeals from the judgment entered in the District Court of Johnson County upon the verdict returned by a jury in this personal injury action. The collision out of which this action arose occurred on October 2, 1981. A pickup truck being driven by Winfree collided with a disabled truck being towed by defendant Max Groshong. Winfree sustained serious injuries. Groshong was operating under authority granted by the Kansas Corporation Commission, and defendant Liberty Mutual Insurance Company had issued a “filed policy” of liability insurance to Groshong. See K.S.A. 1983 Supp. 66-1,128. The primary issue is whether the results of a blood alcohol test, administered to Winfree, were admissible in evidence.
The facts of the collision are clear and relatively undisputed. U.S. Highway 169 runs in a north-south direction at the south edge of Olathe. It is a four-lane road, with a large medial strip dividing the two northbound from the two southbound lanes. Interstate Highway 35, also a divided four-lane highway, runs in an east-west direction at the south edge of Olathe, and through traffic on 1-35 passes under U.S. 169. On October 2, 1981, at about 11:30 o’clock p.m., Max Groshong was towing a disabled truck behind his 1971 Kenworth wrecker. The disabled truck weighed about ten tons. Groshong, proceeding westerly on 1-35, took the exit ramp to his right and approached U.S. 169 from the east. He stopped at a stop sign, waited until a southbound vehicle had passed, and then looked to the south. Seeing no vehicles approaching, he entered the intersection. The intersection was unlighted but there were many lights on the wrecker and at least two lights on the left or south side of the disabled truck. When the Kenworth was through the intersection and heading to the south, Groshong saw a vehicle coming over the top of the (pverpass. He did not see it slow or change lanes, and he did not hear any noise indicating that the brakes were being applied. The northbound vehicle, a Toyota pickup driven by Winfree, struck just in front of the left rear dual wheels of the disabled truck. The collision occurred in about the middle of the northbound lanes on U.S. 169. The speed of Winfree’s vehicle was estimated as being between forty-nine and sixty-four miles per hour. Only very faint scuff marks, indicating that Winfree was just starting to put on the brakes, were found. Police officers later did a “line of sight” test and determined that the accident scene and the two trucks were clearly visible from a point south of the overpass, 831 feet from the point of impact.
Winfree’s pickup was demolished and he was pinned inside. He was knocked unconscious and remained in a coma for over two months. Groshong, police officers and health service personnel attended Winfree, and several of these people noted the odor of alcohol about him. The odor was described as “moderate to strong,” “strong,” and “obvious.” After Winfree was freed from the wreckage, he was taken by ambulance to the Olathe Community Hospital. Detective Melvin Richey, who was at the scene, was asked by the officer in charge to follow Winfree to the hospital for the purpose of collecting a blood sample. Detective Richey followed the ambulance to the hospital, asked one of the hospital employees to extract a blood sample from Winfree, and stood by while the hospital employee drew the blood in his presence. The sample was packaged, sealed, and mailed to a laboratory in Topeka for examination. Test results indicated that Winfree’s blood contained .15% alcohol by weight. Detective Richey testified that, though Winfree was unconscious, he placed him under arrest for driving while under the influence of alcohol, and that Winfree was in his custody when the sample was taken. Richey did not tell Winfree or anyone at the hospital of the arrest. Winfree was later taken to another hospital, remained in a coma, and was declared incompetent by the District Court of Johnson County before he was released from the hospital. No formal charges were ever filed against him. The trial judge, after hearing the evidence out of the presence of the jury, found that Winfree “was under arrest or was otherwise in custody” when the blood sample was taken, and he admitted the results of the test in evidence. The jury attributed 70% of the fault to Winfree, 30% to Groshong. Judgment was entered for the defendants, and plaintiff appeals.
Plaintiff contends that the results of the blood alcohol test were inadmissible and should have been excluded in this civil action for two reasons: (1) they were not obtained in conformity with K.S.A. 1981 Supp. 8-1001; and (2) they were taken in violation of Winfree’s Fourth Amendment rights. Plaintiff argues that the trial court’s finding that Winfree was under arrest or otherwise in custody is not supported by competent evidence and is erroneous as a matter of law. Plaintiff also argues that the taking of blood for the purpose of analysis, from the person of one who is unconscious at the time, constitutes a violation of his constitutional rights.
K.S.A. 60-407 is our basic evidence rule. It provides that “[e]xcept as otherwise provided by statute ... all relevant evidence is admissible.” The Advisory Committee Notes state:
“This rule wipes out all existing restrictions and privileges and limitations on the admissibility of relevant evidence. They are then reinstated by subsequent sections insofar as desirable. This is necessary if a complete and orderly code is presented as to form and contents.
“This section presents the basic rule. All provisions that follow, except the few touching upon related matters or procedure, are exceptions to this rule in the form of limitations or modifications.”
1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-407, Advisory Committee Notes to Laws of 1963 p. 75 (1979).
Judge Gard, commenting on this section in his Kansas Code of Civil Procedure 2d Annotated, says:
“No court decision has stated the rule so pointedly as does this provision, but the decisions are not in conflict with the policy of it. It simply recognizes the fundamental principle that the primary test of admissibility of evidence is its relevancy to the issue being investigated; and that the trier of the fact should have all of the relevant evidence which is offered unless some overriding consideration of policy or expediency requires its exculsion.” pp. 75-76.
Judge Gard goes on to say:
“Constitutional considerations cannot be affected by these rules. For example illegally obtained evidence may be inadmissible on constitutional grounds, but not because it is irrelevant. Any constitutional questions which may arise are inherent and may, of course, be raised independently of this rule. The constitutions, federal and state, contain their own rules. To whatever extent the rales stated in this section violate in their application any constitutional right the constitutional consideration would be prevailing.” p. 77.
We start with the premise that the evidence, if relevant, is admissible. This is true unless some statute or constitutional provision mandates its exclusion. The challenged evidence, the result of the blood alcohol test, is relevant evidence on the issue of Winfree’s negligence. See Townsend, Administrator v. Jones, 183 Kan. 543, 331 P.2d 890 (1958); Rhoades v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994 (1926); McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151 (1913). The issue before us is not whether the evidence was relevant, but rather whether it should have been excluded for the reasons asserted. A general rule is set forth in 31A C.J.S., Evidence § 187, as follows:
“While there is some authority to the contrary, it has been held that evidence obtained fraudulently, wrongfully, or illegally ordinarily is not incompetent, unless it is rendered incompetent as a result of constitutional or statutory regulations.
“The courts do not concern themselves with the method by which a party has secured the evidence which he adduces in support of his contentions; and hence, in the absence of constitutional or statutory restrictions; evidence which is otherwise admissible will not be excluded because it has been obtained fraudulently, wrongfully, or illegally.”
K.S.A. 1981 Supp. 8-1001, applicable at the time of.the injury in this case, reads in part as follows:
“Any person who operates a motor vehicle upon a public highway in this state shall be deemed to havé given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating, a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer.”
The statute, as will be seen, makes no provision for the taking of a blood,sample from a person who is unconscious. In a criminal case, State v. Garner, 227 Kan. 566, 608 P.2d 1321 (1980), the defendant was charged with driving while under the influence of alcohol. When arrested, he appeared dazed and heavily intoxicated. He readily consented to a breath test, but later testified that he remembered nothing about being stopped, arrested, questioned, nor did he remember the taking of the test. The sole issue before us was whether the trial court erred in suppressing the results of the test because the defendant, an incapacitated driver, was physically unable to freely and voluntarily refuse the request. We discussed cases from other jurisdictions having similar statutes, the constitutional questions raised, and the applicable decisions of the United States Supreme Court. We found that the test was properly taken and. the results were admissible. In so holding we said:
“The objectives of the statute are necessary and proper within the police power of the state. After the statute gives implied consent, it provides ‘if the person so arrested refuses a request to submit to a test of breath or blood, it shall not'be given . . . .’What effect does this statute giving implied consent with right of refusal have on an unconscious driver? We have seen the statute is more restrictive than the constitution. The statute requires an accused to be given the right to refuse the test and states the test shall not be given if refused. The constitution permits the taking of a blood or breath test as an incident to arrest, regardless of refusal under the conditions discussed above. If the unconscious driver, who is not mentioned in K.S.A. 1979 Supp. 8-1001, is exempt from the statute, then the evidence is clearly not rendered constitutionally inadmissible.
“We find, however, notwithstanding the absence of constitutional inhibitions, the evidence is admissible pursuant to the statute itself. K.S.A. 1979 Supp. 8-1001 provides the operator of a vehicle on the highway is deemed to have consented to the blood or breath test for the privilege of driving. We find the unconscious driver is included in this classification and has consented to the test. The provision in 8-1001(c) permitting an operator to refuse is not a right of refusal, but was included in the statute as a means to avoid the violence which would often attend forcible tests upon a rebellious drunk, and the operator may withdraw that consent by expressly refusing the test. If he fails to expressly refuse, the consent remains in force and the test may be made. See Mills v. Swanson, 93 Idaho 279. To hold otherwise would permit the worst offender, the passed-out drunk, to escape the provision of the statute by his own voluntary act.” (Emphasis supplied.) 227 Kan. at 571-72.
In State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979), the defendant was convicted of involuntary manslaughter stemming from an automobile accident. He appealed, contending that the results of a blood alcohol test were improperly received in evidence. Parson had been taken from the accident scene to a Wichita hospital. He was unconscious. The record does not indicate that he was arrested, that he was given the option of refusing the test, or that the test was taken under the direction of a police officer. Instead, an emergency room physician ordered several tests, including a blood alcohol test. We said: “The blood alcohol test showed appellant’s blood alcohol level to be 0.14, indicating intoxication pursuant to K.S.A. 8-1005(b).” 266 Kan. at 492. While the evidence was not attacked upon the grounds here urged, we held that the results of the tests were properly admitted into evidence.
Both parties cite Williams v. Hendrickson, 189 Kan. 673, 371 P.2d 188 (1962), a personal injury accident arising out of a motor vehicle collision. In that case, defendant gave his written consent to the sheriff to have his blood tested for alcoholic content. Blood was withdrawn and tested, and disclosed an alcoholic content of 0.168% by weight. A physician testified that such a blood alcohol percentage demonstrates drunkenness. Defendant challenged the admissibility of this evidence. We said:
“Defendant next contends that the result of the blood test was inadmissible in evidence for the reason that it was given under the provisions ofG.S. 1961 Supp., 8-1001, and its admissibility is limited to criminal actions. The language of the statute imposes no limitations in the use of the blood alcohol test to criminal actions. We are of the opinion such evidence, if properly obtained and accurately identified, may be admitted in a civil action where pertinent to the issues involved in the case.” (Emphasis supplied.) 189 Kan. at 676.
Appellant contends that by the language “if properly obtained,” we meant that the testing must be done in full compliance with K.S.A. 1981 Supp. 8-1001, and rationalizes that when there is not full compliance with the statute, the results would be inadmissible in both criminal and civil cases. The last sentence quoted above indicates merely that the foundational requirements for a reliable test must be met in order for the evidence to be admissible in a civil action.
In the case now before us the trial court, after hearing the evidence out of the presence of the jury, made a finding of fact that Winfree was arrested or otherwise in custody when the blood sample was taken and thus concluded that the sample was taken in compliance with K.S.A. 1981 Supp. 8-1001. There was evidence to support such a finding. However, we hold that the taking of a blood test in compliance with that statute is immaterial when considering the admissibility of blood test results in a civil negligence case. If the blood sample is taken under appropriate conditions to guard against contamination, if the sample is properly marked and conveyed to the laboratory, if the chemical testing is properly conducted by competent personnel, and if the test results are relevant and material to the issues presented in the litigation, then those results are admissible in a civil action whether or not they are taken in conformity with the statute. Blood test evidence, when otherwise competent, material and relevant, ought not to be excluded in a civil action solely because of the failure of a non-party — the police officer — to comply with 8-1001.
Turning to plaintiff s claim that the taking of the blood sample constituted an unreasonable search and seizure in violation of the Fourth Amendment, we conclude that the evidence ought not to be excluded upon those grounds. First, the blood sample was taken at the direction of a police officer at a time when the officer, under the evidence now before us, had probable cause to arrest Winfree on a charge of driving while under the influence of alcohol. The trial court found that Winfree was under arrest or in custody. Certainly the officer was exercising sufficient control over Winfree’s person at the time to require the taking of the blood sample, which supports the trial court’s finding. Thus, seizure of the blood was permissible under our implied consent statute which satisfies Fourth Amendment requirements. Secondly, the primary purpose of the exclusionary rule is undoubtedly the deterrence of unlawful police conduct. In United States v. Calandra, 414 U.S. 338, 347-348, 38 L.Ed.2d 561, 94 S.Ct. 613 (1974), the court said:
“The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:
‘[T]he ruptured privacy of the victims’ homes and effects cannot be restored.
Reparation comes too late.’ Linkletter v. Walker, 381 U.S. 618, 637 (1965). Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effecuate the guarantee of the Fourth Amendment against unreasonable searches and seizures:
‘The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ Elkins v. United States, 364 U.S, 206, 217 (1960).
Accord, Mapp v. Ohio, [367 U.S. 643 (1961)], at 656; Tehan v. Shott, 382 U.S. 406, 416 (1966); Terry v. Ohio, 392 U.S. 1, 29 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
“Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The balancing process implicit in this approach is expressed in the contours of the standing requirement. Thus, standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search. Brown v. United States, 411 U.S. 223 (1973); Alderman v. United States, 394 U.S. 165 (1969); Wong Sun v. United States, [371 U.S. 471 (1963)]; Jones v. United States, 362 U.S. 257 (1960). This standing rule is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.”
Here, there is no contention that there was any connivance between the defendants in this case and the police officer who directed the taking of the blood sample. The police officer and the State of Kansas are not parties to this action. Suppression of blood test evidence in this case would have no deterrent effect upon law enforcement officers. We see no reason to extend the exclusionary rule to civil cases in which neither the State nor its officers are parties. The officer in this case was acting pursuant to valid statutory law and the “seizure” was not unlawful. Clearly, deterrence is not required.
The admissibility of illegally or unconstitutionally seized evidence in civil trials has been the subject of much comment. See Annot., Admissibility, in Civil Case, of Evidence Obtained by Unlawful Search and Seizure, 5 A.L.R.3d 670; Note, Constitutional Exclusion of Evidence in Civil Litigation, 55 Va. L. Rev. 1484 (1969); Hanscom, Admissibility of Illegally Seized Evidence in Civil Cases: Could This Be the Path Out of the Labyrinth of the Exclusionary Rule? 9 Pepperdine L. Rev. 799 (1982); Note, Admissibility of Illegally Seized Evidence in Subsequent Civil Proceedings: Focusing on Motive to Determine Deterrence, 51 Fordham L. Rev. 1019 (1983). The vast majority of civil cases in which the exclusionary rule has been applied are those in which the state or the government, or agents thereof, are parties to the action. With this qualification in mind, we recognize that there is a split of authority on the admissibility of blood alcohol tests in personal injury accidents where the original seizure of the blood by law enforcement officers was illegal. In deciding which line of authority to follow, we have kept in mind that alcohol-related motor vehicle accidents often produce deceased, unconscious or other noncommunicative persons. Usually there are but few witnesses. We think the better rule is to permit the admission into evidence of blood test results, regardless of the lawfulness of the taking, in civil cases in which neither the State nor any of its officers is a party. The exclusionary rule should not be exercised in such instances. The trial court did not err in admitting the blood test evidence in this case.
Plaintiff next contends that the trial court erred in instructing the jury as follows:
“INSTRUCTION NO. 12
“The laws of Kansas provide that if there was at the time of the accident 0.10 per cent or more by weight of alcohol in a driver’s blood, it shall be presumed that the driver was under the influence of intoxicating liquor. This presumption is not conclusive but can be considered by you along with all the other evidence presented in the case in determining whether the driver was under the influence of alcohol.”
This instruction is derived from K.S.A. 1981 Supp. 8-1005, which reads as follows:
“In any criminal prosecution for violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor . . . evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following presumptions:
“(1) If there was at that time less than 0.10 percent by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
“(2) If there was at the time 0.10 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.”
Plaintiff objected to the instruction on the ground that the statute and thus the presumption were applicable only in criminal proceedings, and plaintiff urges that same ground on appeal. On its face, the statute applies in criminal cases. However, it creates a rebuttable presumption of fact, one reasonably arising on the basis of the test results in evidence, and one equally applicable in civil or criminal proceedings when a person’s intoxication or sobriety is in issue. Although not involving the instructions to a jury, our opinions in two civil cases have mentioned the application of the presumption. Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P.2d 383 (1971), and Johnson, Administrator v. Huskey, 186 Kan. 282, 350 P.2d 14 (1960).
Jensen was a workmen’s compensation case. The employer and its insurance carrier appealed from an award of compensation entered in favor of the widow and minor children of Bernard Schmidt. A one-car crash occurring about 6:30 p.m. was the immediate cause of death. There was evidence that an hour before the accident, the deceased had called on a prospect and that he had not been drinking at that time. However, an analysis of a blood sample taken by the mortician at the request of a highway patrol trooper showed a blood alcohol content of .162% by weight. A chemist and a highway patrol trooper both testified that someone with such a blood alcohol level would be under the influence of alcohol. The examiner, the director of workmen’s compensation, and the district court found that Schmidt’s death did not result “solely from his intoxication,” and thus compensation was not barred by K.S.A. 1970 Supp. 44-501(£>). We affirmed. In discussing the duties of the trial court in such a case, we said:
“In arriving at its findings in this case, the court was required to examine and take into consideration all the evidence introduced, that of the claimants as well as that of the respondents, giving such weight to the several parts of the evidence as, in its judgment, they seemed to merit. In evaluating the force and effect of the statutory presumption of intoxication set out in 8-1005, the court was entitled to consider not only that it could be rebutted by other evidence . . . but also that the blood sample was drawn by a mortician, not by a physician or qualified medical technician as K.S.A. 8-1003 requires ....
“We believe the evidence taken in its entirety is sufficient to sustain the court’s finding . . . .” 208 Kan. at 186.
Johnson was an action for the wrongful death of a young woman who was riding as a passenger in an automobile driven by the defendant. Plaintiff contended that the defendant’s action in driving the car at least eighty miles per hour while intoxicated, losing control of the car, and causing it to go off the road and overturn in a field constituted gross and wanton negligence. A sample of defendant’s blood had been taken with his consent and a test showed a result of 0.275% of alcohol by weight. A physician testified that a test of 0.15% would be evidence of intoxication and that considering defendant’s test showed 0.275%, defendant was definitely under the influence of intoxicating liquor. We commented:
“The statute was not referred to in this case, but reference may be had to the provisions of G.S. Supp. 1957, 8-1005 in comparing the authenticity of the above testimony.” 186 Kan. at 284.
We are aware that the courts of several states with statutes similar to K.S.A. 1981 Supp. 8-1005 have held the presumption applicable strictly according to its terms — in criminal cases only. See Annot., 16 A.L.R.3d 748, 757-58. At least one state, for a time, made evidence of blood alcohol test results and the presumption of intoxication admissible by statute in any civil or criminal trial arising out of the acts alleged to have been committed at the time the blood test was authorized. See Ala. Code, § 32-5-193 (1975), since repealed, and Maffett v. Roberts, 388 So. 2d 972 (Ala. 1980).
K.S.A. 1981 Supp. 8-1005 and its predecessors have been a part of the Kansas law since 1955, so for almost thirty years the presumption has been a part of our law. Originally, the presumption of intoxication arose only when the results of the blood alcohol test showed a level of 0.15% or more. See L. 1955, ch. 279, § 1. The statute was amended in 1970 and since that time the presumption arises if the blood alcohol test discloses 0.10% or more by weight of alcohol in the blood. L. 1970, ch. 51, § 3. The statute was again amended in 1982 and now appears as K.S.A. 8-1005. Subsection (a)(2) of that statute makes it prima facie evidence that one was under the influence of alcohol to a degree that renders a person incapable of driving safely if blood, urine, breath or other bodily substance tests disclose 0.10% or more by weight of alcohol in the blood. Thus, the same presumption adopted in 1970 continues. No presumption arises if the percentage is less than 0.10%. The statutory presumption is based upon scientific principles. It would not be logical to have a presumption, based upon a given set of facts, that one was under the influence of alcohol to a degree that renders the person incapable of driving safely, in a criminal case but not in a civil case. The presumption is one arising upon certain facts and if those facts are shown by the evidence in either a civil or criminal case, the same presumption should arise. The presumption is a rule of evidence, applicable in civil, criminal or administrative proceedings. We hold that there is a rebuttable presumption in this state that a driver who at the time of an accident has 0.10% or more by weight of alcohol in his or her blood is under the influence of alcohol. The trial court did not err in so instructing the jury.
Plaintiff next contends that the trial court erred in giving a standard range-of-vision instruction, PIK Civ. 2d 8.02B, which reads as follows:
“It is the duty of a driver on a public highway to keep his vehicle under such control as will enable him to regulate his speed to his ability to stop or turn aside within the range of vision provided by the headlights of his automobile and thus avoid colliding with any other vehicle lawfully using the highway.”
Plaintiff contends that the trial court should have modified the instruction to reflect at least some of the qualifications and exceptions included in the comments to the PIK instruction, applicable when there is a sudden change in the motorist’s situation not caused by his own failure or neglect. Factors enumerated in the comment include:
"The color and condition of an offending vehicle parked in a traffic lane at night . . . the sudden emergence of blinding lights ... a knoll, rise or change in grade causing the obstruction, motor vehicle or other object to be hidden . . . leaving an unlighted obstruction on the highway after it has turned dark . . . and the blending of an unlighted object with a street or general background . . . .” (Citations omitted.)
Plaintiff argues that the towed truck was blue in color on the bottom half and white on the top, that it blended with the road, and that the jury could have found that there were at best only two dim and weak lights on the side of the disabled vehicle facing Winfree as he approached. Plaintiff also contends that the wrecker and the towed truck were in the northbound lane an unusually long period of time because of their slow speed. These are all matters which could have been and no doubt were argued to the jury, but none of them appears to necessitate a modification of the instruction given. The towed truck was not “parked in a traffic lane” — it was moving slowly across the lane. There was no sudden emergence of blinding lights. While there was a grade and the point of impact was on the downslope, the evidence was undisputed that the wrecker and the towed vehicle were clearly visible from a point 831 feet to the south. The evidence as to the lights on the towed truck was that there were six flashing lights on the truck, at least two of them being on the side toward Winfree. These lights were still visible when the officers arrived, sometime after the collision. One of the officers testified that he did not see any flashing lights, but he did see the clearance lights on the disabled truck that were “quite bright.” The disabled truck’s battery ran down and the lights went out an hour and a half after the accident. There is no evidence that the lights were dim and weak or were not operating at the time of the accident. The speed of the trucks and the length of time they were in the northbound lanes was not a matter upon which the trial court could or should instruct. The trial court gave the usual range of vision instruction. Under the evidence, the court was not required to modify that statement of the law. The matter of the speed of the various vehicles, the color of the towed truck blending into the night scene, and the brightness of the lights on the disabled vehicle were matters for argument, not for instruction.
Finally, plaintiff contends that the trial court should have instructed that the tow truck was an authorized emergency vehicle required to be equipped with a rotating or oscillating light and that there are no restrictions on the use of a rotating light. The jury heard much evidence that the tow truck was equipped with an oscillating light and that the light was not in use at the time of the collision, and it also heard testimony of an officer that he would have stopped the tow truck and asked the driver to turn off the light had he observed the light flashing while the vehicle was being towed. K.S.A. 8-1720 reads in part as follows:
“Every authorized emergency vehicle . . . shall be equipped with at least one rotating or oscillating light, which shall be mounted as high as practicable on such vehicle and which shall display to the front and rear of such vehicle a flashing red light or alternate flashes of red and white lights in combination.”
The statute does not specify when emergency lights should be turned on. Groshong testified that he was not operating the truck as an emergency vehicle at the time of the accident. K.S.A. 8-1506 authorizes the driver of an authorized emergency vehicle responding to certain enumerated emergencies to disregard various traffic laws and regulations if the driver employs a siren or other audible signal and visual signals meeting the requirements of K.S.A. 8-1720. Considering these statutes together, it is apparent that audible and visual signals should be given and traffic regulations disregarded only when an emergency vehicle is acting in an emergency. An ambulance or fire truck being driven from one place to another and not answering an emergency call is not acting as an emergency vehicle. A tow truck at an accident scene and in the process of removing a disabled vehicle is acting as an emergency vehicle and should have its emergency warning lights in operation in order to warn all motorists approaching the scene. On the other hand, a tow truck driving down the road, even though towing a disabled vehicle from one place to another, is not acting as an emergency vehicle. We see no occasion for the use of the flashing, rotating or oscillating emergency lights in that situation. The tow truck is serving no greater purpose than the familiar transport pulling two trailers down the turnpike. We conclude that the trial court did not err in refusing the requested instruction.
We turn now to the cross-appeal. This case was tried in February 1983. On April 28, 1982, defendants filed an offer of judgment in the amount of $100,000. Plaintiff did not accept the offer. K.S.A. 60-2002 first provides for the service of an offer to allow judgment to be taken. Defendants complied with that portion of the statute. The statute then provides:
“If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” (Emphasis supplied.)
K.S.A.60-2003 enumerates the items which may be included in the taxation of the costs. These are:
“(1) The docket fee as provided for by K.S.A. 60-2001.
“(2) The mileage, fees, and other allowable expenses of the sheriff or other officer incurred in the service of process outside of this state or in effecting any of the provisional remedies authorized by this chapter.
“(3) Publisher’s charges in effecting any publication of notices authorized by law.
“(4) Statutory fees and mileage of witnesses attending court or the taking of depositions used as evidence.
“(5) Reporter’s or stenographic charges for the taking of depositions used as evidence.
“(6) Such other charges as are by statute authorized to be taxed as costs.”
Defendants filed a motion for costs, attorney fees and expenses, and attached an affidavit itemizing these and showing a totál expense of $8,909.67. The trial court found only $348.48 properly allowable as costs under K.S.A. 60-2003 and entered judgment for the defendant in that amount. Defendant claims this was error.
Defendants do not contend that there are any items properly taxable as costs under K.S.A. 60-2003 which the trial court did not allow. Instead, defendants sought to have taxed as costs all of its expenses in connection with this lawsuit after the making of the offer. These included paralegal time, attorney fees, deposition expense, phone calls, expert witness fees and the like. The term “costs” ordinarily means the fees and charges of the court — filing fees, fees for service of process and the like. K.S.A. 60-2002 does not provide for the payment of all of the expenses incurred by the opposing party after the making of the offer. The statute uses the term “costs,” and the trial.court allowed all items properly taxable as costs. We find no error.
Finally, defendants contend that they are entitled to their costs, attorney fees and expenses as a result of. the plaintiff s denial of certain requests for admissions. These requests dealt with the extraction of blood from James L. Winfree, the testing of the blood sample, the results of the test, and whether Winfree was under the influence of alcohol or legally intoxicated at the time of the collision. The trial court denied defendants’ motion and found that the plaintiff made a good faith argument against the admission of the blood alcohol test results. An admission of the defendants’ requests would have allowed the requested matters into evidence. This court has spent considerable time in this opinion deciding the issue of the admissibility of the blood test results and the applicability of the presumption. We agree with the trial court and find that the denials of the requests for admissions and the position taken by the plaintiff, though ultimately decided in defendants’ favor, were not taken in bad faith or that they constituted the advancement of a frivolous position. Plaintiff was advancing a question of law which has ultimately been decided. Defendants argue that admissions are subject to all pertinent objections as to admissibility. See K.S.A. 60-236; Form 25, contained in the Appendix of Forms, Kansas Code of Civil Procedure Annot. 1963; 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-236, Comments (1979); and 8 Wright & Miller, Federal Practice and Procedure: Civil § 2264 (1970). Our proposed Form 25, like its federal counterpart, prefaces the request for admissions with the words “subject to all pertinent objections to admissibility which may be imposed at the trial.” Defendants did not use that language in their request for admissions served in this case. Even so, we think that because of the legal issues involved, plaintiff “had reasonable ground to believe that [s]he might prevail on the matter . . . .” See K.S.A. 60-237(c). The trial court acted within its sound discretion in denying the motion.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from the trial court’s decision that Anna and Matthew Sawyer are “children in need of care” because they were not attending school as required by K.S.A. 72-1111. The two juvenile cases are consolidated on appeal.
During the 1981-82 academic school year, Anna and Matthew Sawyer were regularly enrolled in the Spring Hill Elementary School, U.S.D. # 230, located in Spring Hill, Johnson County, Kansas. Anna’s and Matthew’s parents, Tom and Bonnie Sawyer, are residents of Spring Hill. Anna is eight years old and Matthew is eleven.
The Sawyers became dissatisfied with the children’s progress in Spring Hill. They organized their own private school, incorporating under the name of Longview School, Inc., and enrolled their children there. Longview School, Inc., is located within their home. It commenced operation the beginning of the 1982-83 academic school year. From that time until the trial court’s order in January 1983, Anna and Matthew attended classes there on a daily basis.
The Longview School is not accredited nor has it been approved by any governing body of the State of Kansas. It is, however, registered as a private elementary school with the Kansas State Board of Education, pursuant to K.S.A. 1982 Supp. 72-53,101. No schedule as to the timing of classroom activity exists. Anna and Matthew’s siblings, ages four and twenty-two months, are in the home during the instruction. Mrs. Sawyer is the sole babysitter for all four children during the day. Also, Mrs. Sawyer is the only teacher at the Longview School. Matthew and Anna are the only students enrolled at Longview School. The courses taught include reading, writing, arithmetic, geography, spelling, English grammar and composition, history of the United States and of the State of Kansas, civil government and the duties of citizenship, health and hygiene, and patriotism and the duties of a citizen suitable to the elementary grades.
Mrs. Sawyer does not have a college degree nor a teaching certificate; nor does she have teaching experience. She has one and one-half years of college education. She graduated from high school with a 3.5 grade point average on a 4.0 scale.
The Sawyers decided to have their school-age children remain at home for instruction because of dissatisfaction with Matthew’s progress in Spring Hill Elementary School. Matthew had completed his second grade school year in Tennessee, where the school district refused to advance him to the third grade. The Sawyer family moved to Spring Hill, Kansas, for the 1979-80 school year and Matthew enrolled as a second grade student. The principal of Spring Hill Elementary School, William Pierce, testified that while Matthew Sawyer was attending Spring Hill Elementary between 1979 and 1982, his composite percentile on the standardized learning achievement test administered by the school had dropped from the 45th percentile to the 16th per centile. There was no evidence of the children’s scores after the home education experience.
The only witness called for the State besides Mrs. Sawyer was Dr. Bruce Bean, a psychologist. Dr. Bean admitted he had no acquaintance with private schools conducted in the home and that he had never read any literature on the topic of home schools. Dr. Bean gave no testimony about the competence of Mrs. Sawyer to teach her children, nor did he offer any evidence regarding the subject matter of the courses taught; rather, he limited his assessment to the psychological functioning of the two children.
Dr. Bean’s evaluation consisted of various psychological tests and sessions with the Sawyer family. While Dr. Bean testified Anna was quite mature and able to handle the home education experience, he felt Matthew would benefit more from a highly structured educational experience not offered in Longview School.
Dr. Raymond Moore, appellants’ expert witness, testified Bonnie Sawyer and the school which she conducted are particularly situated to offer a competent education to the Sawyer children. Dr. Moore is a developmental psychologist and has authored several books and articles on the topic of child education in the home. He met the Sawyer family the day before the hearings. Dr. Moore agreed with Dr. Bean that Anna was coping well with the home instruction; however, he disagreed with Dr. Bean’s assessment of Matthew’s needs. Dr. Moore testified he felt Matt needed the extra attention and support he received from the home instruction in order to overcome his poor school performance and to mature.
After this testimony, the trial court found Anna and Matthew Sawyer to be “children in need of care” and ordered them back to their former school. From this order the children appeal.
Appellants initially argue the State failed to prove by clear and convincing evidence that Anna and Matthew Sawyer are children in need of care.
The Kansas Code for Care of Children defines a child in need of care as one who is less than eighteen years of age and “is not attending school as required by K.S.A. 72-1111.” K.S.A. 1982 Supp. 38-1502(a)(6). A nonpublic school is defined by K.S.A. 72-1111(a)(2) as:
“[A] private, denominational or parochial school taught by a competent instructor for a period of time which is substantially equivalent to the period of time public school is maintained in the school district in which the private, denominational or parochial school is located.”
Kansas statutes require the State to prove by clear and convincing evidence that a child is in need of care. K.S.A. 1982 Supp. 38-1555. While this is the burden of proof at trial, “the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings .... [T]he reviewing court must examine the evidence in the light most favorable to the party prevailing below.” International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 464, 639 P.2d 29 (1982). The issue then, is whether the trial court had before it substantial competent evidence Anna and Matthew Sawyer were not attending school as defined by K.S.A. 72-1111.
At trial it was shown Longview School is a home study school with only two students — the Sawyer children. It is nonaccredited. Though the courses offered were the statutory courses, the teaching schedule varied from day to day. School usually lasted only half a day. Sometimes classes commenced at 8:00 a.m., sometimes at 9:30 a.m., depending on demands of housework and the two smaller children who sat in on the classes. The two students, though three years different in age, were in the same class which caused some sibling rivalry to the detriment of Matthew. The school has no access to a counselor, psychiatrist or special education instructor. The evidence also revealed a very minimum of lesson planning.
Mrs. Sawyer testified she felt she was a competent and qualified teacher for her children. Dr. Bean expressed his opinion that regardless of Mrs. Sawyer’s competency a school with more children would be generally better for any child since it would provide more social interaction outside of the home. He summarized his evaluation as follows:
“Had Mr. and Mrs. Sawyer consulted me regarding their concerns about Matt and his difficulties at school, based on the results of my evaluation, I would have recommended the development of a close, cooperative working arrangement between the Sawyers and the [public] school. It seems that it would be beneficial for the school to provide a detailed diagnostic educational evaluation for Matt to help more clearly pinpoint his educational strengths and weaknesses. Based on this evaluation, a definite educational plan could have been developed either in the regular classroom or, depending on the results of the evaluation, an individual educational plan could be developed through the special education department. In addition to this, I would have recommended a brief course of family therapy to help coordinate home and school communication and to help the family more fully recognize some of Matt’s underlying feelings and develop some family interaction patterns to address his difficulties. The present evaluation indicates that there may be some rather notable difficulties presented for the Sawyer family and most especially for Matt as a result of the decision to establish an inhome schooling program for Matt and Anna.”
Dr. Raymond Moore, a developmental psychologist from Michigan, has authored several books and articles on the subject of educating children in the home. He has become an outspoken advocate of home school. Dr. Moore testified Mrs. Sawyer was particularly competent to teach her children because of her close relationship and ability to provide a loving environment and consistent discipline. His criteria would apply to most mothers, regardless of their education or training.
The legislative history of home schools in Kansas is scarce. Home instruction was at one time recognized as a valid exception to the compulsory school attendance laws. See G.S. 1909, § 7736 et seq.
In 1968, the legislature amended K.S.A. 72-1103, which establishes the required courses of instruction, to include only accredited schools. Kansas statutes do not require nonpublic schools to be accredited, nor does it require teachers in nonpublic schools to be certified. In 1979, two bills concerning this issue were proposed in the legislature: H.B. 2056 sought to require children of compulsory school attendance age to attend only accredited schools; H.B. 2057 wanted to require all teachers of K.S.A. 72-1111 schools to be certified. Both bills died in committee.
Only three cases on home schools have reached this court. In 1916 we decided the case of State v. Will, 99 Kan. 167, 160 Pac. 1025 (1916). In Will the court held the legislature’s elimination of the home study exception in the truancy laws and replacement of an exception for private, denominational or parochial schools taught by a competent instructor was not an effort to eliminate home schools but rather to increase the quality of all nonpublic schools.
"The legislature may well have believed that if such [nonpublic] schools were taught by a competent instructor the sufficiency and scope of the course of study would necessarily follow to fully qualify the child for his future duties as a citizen.” 99 Kan. at 170.
The Will court further held:
“Since the legislature has refrained from exercising control over the courses of study in these private, denominational or parochial schools further than to require them to be taught by competent instructors, it is too much to ask the state’s prosecuting officers or its courts to meddle with them.” 99 Kan. at 171.
In response to this the 1919 Kansas legislature passed a law establishing minimum course requirements for all schools, whether public, private, denominational or parochial.
This court did not again consider the issue of home instruction until 1963 in State v. Lowry, 191 Kan. 701, 383 P.2d 962 (1963). In Lowry the court found Mrs. Lowry, the teacher for her children in her home, was competent within the meaning of the statute. Mrs. Lowry held a Kansas teaching certificate and had been a teacher in Kansas public schools. The court held, however, that she did not conduct a private school since the school did not follow the minimum curriculum requirements provided by statute. As previously noted, this requirement was eliminated for nonpublic schools in 1968.
The Lowry court additionally stated:
“In the instant case the defendants’ attempt to operate a private school resulted in mere scheduled home instruction, which is no longer an excuse for nonattendance in the schools of the types prescribed in the act.” 191 Kan. at 704.
The most recent case decided by this court on the issue was, State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966), cert. denied 389 U.S. 51 (1967). In Garber, this court held a student enrolled in a correspondence course which held class one morning a week with in-home vocational training the remainder of the week, was not attending a school within the meaning of the truancy statute. The court held the programs which are “essentially home instruction systems” are not private, denominational or parochial schools. See 197 Kan. at 571.
The appellants point the court to the recent case In the Interest of Zephyrus White, 82-J-08 (district court of Cloud County, Kansas, July 2,1982). In that case Judge Marvin L. Stortz determined that a school taught by a noncollege graduate mother where the only student was her seven-year-old son, was a private school within the meaning of K.S.A. 72-1111. The appellants argue this case is indicative of a changing feeling among the courts since the early 1960’s towards home instruction. White is a district court decision and as such is not precedent.
At issue is whether there is substantial competent evidence to support the trial court’s finding the home instruction by Mrs. Sawyer is not a school within the meaning of K.S.A. 72-1111. Viewing the State’s evidence and the testimony of Bonnie Sawyer and Dr. Bean in the light most favorable to the State, as we must in these cases, we have no hesitation in concluding the evidence supports the trial court’s finding. Longview School, Inc., is the Sawyer home. It is unaccredited. The only students are Matthew and Anna Sawyer. Bonnie Sawyer is the teacher. She is uncertified with no teaching experience. She combines the babysitting of two smaller children with her attempt to teach Matthew and Anna. There is no testing, planning or scheduling. The only goal of the arrangement is to extricate Matthew from his failure in public school. Anna is a pawn in the struggle. This will not suffice. We find the Sawyers’ plan, though well intentioned, a thinly veiled subterfuge attacking compulsory school attendance. If such a family arrangement will serve as a substitute for school, there is no compulsory school attendance. Clearly the legislature intends to maintain compulsory education. We find appellants’ argument is without merit.
The appellants next argue parents have a fundamental right to educate their children in the manner they deem most appropriate regardless of state law. The United States Supreme Court has held education is not a fundamental right, but rather is to be regarded and reviewed as any social and economic legislation. See San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278 (1973). The standard of review to be applied then, is whether the state’s system has some rational relationship to a legitimate state purpose. 411 U.S. at 40. The Kansas system of compulsory school attendance embodied at K.S.A. 72-1111, which allows alternatives to public school, has a rational relationship to the legitimate State purpose of educating its children. This issue is without merit.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a legal malpractice case tried to a jury in the Shawnee County District Court. The plaintiff, Michael Bowman, appealed the trial court’s granting defendant’s motion for partial summary judgment, and the defendant, Harold Doherty, cross-appealed the jury’s finding of legal malpractice.
Michael Bowman was arrested for giving a worthless check on December 27, 1978. He was released on bond and ordered to appear in court on January 15, 1979. Bowman arrived at the initial appearance without an attorney. The judge informed the plaintiff of his right to an attorney and continued the case until January 22, 1979.
On either January 16 or 17, 1979, the plaintiff left on a skiing trip to Colorado. On January 19, from a hotel in Colorado, Bowman telephoned Harold Doherty, a Topeka attorney, who had helped Bowman with previous legal matters. The plaintiff claimed he retained Doherty to handle this case. Bowman advised Doherty of his upcoming court appearance. Doherty told Bowman he would take care of the matter and to contact him when Bowman returned from Colorado. Doherty called the district attorney’s office and made arrangements with one of the deputy district attorneys for the case to be continued for two weeks. When Bowman returned from Colorado, he spoke with Doherty, who assured Bowman the matter would be taken care of.
No continuance was arranged for with the district court. Bowman and Doherty failed to appear in court on January 22, 1979. The judge declared a bond forfeiture and ordered a warrant be issued for Bowman’s arrest.
Bowman returned to Topeka from Colorado sometime during the next week following his telephone call to Doherty. Upon his return, Bowman called Doherty again, and the parties agreed to meet to discuss the case. A day or two later Bowman met with Doherty in his office to discuss the matter. According to Bowman, Doherty said, “I will take care of it. This is no problem, don’t worry about it.”
Several weeks later, in late February or early March of 1979, Bowman received a letter from the sheriff s office, stating he was in contempt of court for failure to appear on January 22. The letter advised Bowman would be arrested if he did not present himself at the Shawnee County Courthouse. After receiving the letter, Bowman called Doherty and described the letter to him. Doherty told Bowman to come in to his office and bring the letter with him. Bowman went to Doherty’s office and showed him the letter. According to Bowman, Doherty said, “I know what this is, I will take care of it.” Doherty took no action.
Approximately one month later, on April 13, 1979, Bowman was arrested at his residence on a charge of aggravated failure to appear. Upon his arrival at the courthouse, Bowman was allowed to make a telephone call to Mr. Doherty, but was unable to reach him. Bowman then was booked into the county jail where he was held for two or three hours. Bowman eventually called his father who came down to the courthouse to post bond for his son’s release. Bowman was handcuffed for three or four minutes while he was moved from his jail cell to the room where the bond papers were signed. The handcuffs caused Bowman to suffer some physical pain.
Later that same day, after Bowman had been released from jail, Bowman’s father telephoned Doherty, informed him of the situation, and asked to have an appointment with Doherty. Doherty told Bowman’s father to come to his office in the morning. Early the next morning (April 14), both Bowman and his father met with Doherty in his office. After discussing the problem, Bowman’s father asked Doherty if he was going to represent Bowman. Doherty, at that point, agreed to represent Bowman in both cases. Bowman’s father then asked Doherty what needed to be done to take care of the cases. After reviewing the court papers, Doherty replied that they needed to appear at the next docket which was May 1, 1979. Doherty promised to appear in court for Bowman on May 1.
Sometime after the April 14 meeting, Doherty arranged to have both of Bowman’s cases continued from the May 1 docket to the May 10 docket. Bowman and his father were notified by Doherty that the cases had been continued. Father and son appeared in court May 10. Doherty did not appear. Judge Hope recommended that Bowman and his father hire another attorney, which they did. Once the new attorney had been hired, both of Bowman’s cases were resolved.
There was a sharp conflict in the testimony at trial whether or not Doherty had agreed to represent Bowman. Bowman claimed Doherty promised “to take care of’ Bowman’s case. Doherty testified he agreed to represent Bowman only if Bowman paid Doherty $100.00 in advance. Bowman never came up with' the $100.00 fee, and therefore Doherty never undertook to represent Bowman.
In regard to the telephone call by Bowman from Colorado on January 19, Doherty testified that Bowman asked him to obtain a continuance of the bad check case “as a favor” for Bowman. Doherty told Bowman that he would “continue it for him.”
At the meeting with Bowman following his return from Colorado, Doherty testified he told Bowman the case could be taken care of. Doherty meant by this that a post-dated check was involved, and that he had learned from the assistant district attorney they did not prosecute cases involving post-dated checks. Doherty told Bowman that it would cost $100.00 for Doherty to dispose of the case, and that Doherty would represent Bowman when Doherty received the $100.00;
Doherty testified that he instructed Bowman that the letter from the sheriff s office required Bowman to go over to the courthouse and make bond, or they would arrest him. Doherty explained to Bowman that Doherty could not make Bowman’s bond, since a lawyer is prohibited by statute from posting bond in the county in which he lives.
Doherty denied that he ever told Bowman’s father that he would take care of Bowman’s cases. According to Doherty, he only told Bowman’s father that the cases could be taken care of through an agreement with the district attorney. Doherty denied discussing the $100.00 fee with Bowman’s father during the meeting. However, Doherty testified after the meeting was over, Bowman came back to Doherty’s office without his father. Doherty again explained to Bowman that he would get the case dismissed if Bowman would pay him the $100.00 retainer fee.
At the conclusion of the trial, the jury found that both Bowman and Doherty were negligent, and it assessed the comparative fault among the parties to the transaction as follows: Bowman 30%, Doherty 50%, and the assistant district attorney who Doherty had contacted to continue the case 20%. The plaintiff was awarded $100.00 in actual damages for physical pain and suffering, and $900.00 in punitive damages. The jury refused to award the plaintiff any damages for loss of personal freedom. After apportioning the negligence, the trial court entered judgment in favor of the plaintiff in the amount of $50.00 in actual damages and the total amount of punitive damages of $900.00. The plaintiff appealed and the defendant cross-appealed.
Prior to trial, Doherty filed a motion for partial summary judgment on all nonpecuniary damages which Bowman was seeking to recover. Those nonpecuniary damages were physical pain and suffering, loss of personal freedom, mental pain and suffering, humiliation, and punitive damages. The parties extensively briefed whether or not such damages could be recovered.
Based on the facts, the trial court denied Bowman’s claim for mental damages. The trial court reasoned that Bowman’s mental suffering and humiliation were not elements or concomitants of any physical injury. The trial court stated:
“Kansas courts appear to require physical injury as a prerequisite to recovery for mental suffering, and even then recovery is not freely allowed.
“City of Salina v. Trosper, 27 Kan. 544 (1882), appears to be the earliest case to address the issue and while the general attitudes of commentators and some courts toward damage awards for mental suffering may have changed, Trosper has never been disapproved but has been cited with approval several times since its writing.
“The plaintiff in Trosper sued the city for injuries suffered when he fell into an open hole in the sidewalk. The jury awarded damages for ‘physical pain and mental suffering.’ In reversing the award, the court stated as follows:
“ ‘Upon this finding arises the question, whether anything can be properly recovered for mental suffering under any circumstances. We think it cannot, except where the mental suffering is the natural, legitimate and proximate consequence of the physical injury. We do not think that anything can be recovered for mental suffering as a distinct element of damages in addition to bodily suffering.
“ ‘Where mental suffering is an element of the physical pain, or is a necessary consequence of the physical pain, or is the natural and proximate result of the physical injury, then, we suppose that damages for mental suffering may be recovered, even in cases of this kind.’
“The physical pain alleged to have been suffered [by Bowman] is that normally attending arrest, handcuffing, fingerprinting and incarceration. (Uncontroverted fact No. 8.) There is no allegation of excessive treatment by Sheriff s officers. . . .
“ Under these circumstances, the Court believes the alleged mental suffering is not the ‘natural’ or ‘proximate’ result of any alleged physical injury, but is instead the result of the arrest and incarceration generally. It is not ‘an element of, or ... a necessary consequence of’ the physical pain itself. ” Emphasis supplied.
The trial court recognized the rule in City of Salina v. Trosper, 27 Kan. 544 (1882), had been followed in numerous subsequent cases. See, e.g., Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214 (1983); Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 395, 357 P.2d 804 (1960); Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 728, 85 P.2d 28 (1938), and numerous cases cited therein; Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 184, 268 Pac. 103 (1928); Scott v. Cowan, 114 Kan. 32, 217 Pac. 698 (1923); Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341 (1908); Cole v. Gray, 70 Kan. 705, 79 Pac. 654 (1905); Railroad Co. v. Dalton, 65 Kan. 661, 70 Pac. 645 (1902). In the last three cases before this court, we determined as a matter of law that the plaintiff was not entitled to recover damages for mental suffering because of the absence of any physical injury.
The rationale for this rule is twofold. First, damages for mental suffering are regarded as too remote to justify recovery in negligence cases, since they could not reasonably have been antici pated to result from the accidental or unusual combination of circumstances. Second, the law looks with disfavor upon such damages because the proof of their existence often lies wholly within the one who claims to have suffered, and their allowance would open the door to fraud. Shelton v. Bornt, 77 Kan. at 4; Restatement (Second) of Torts § 436 A (1964), comment b.
The court’s reliance on Trosper is misplaced. Trosper was a simple negligence case which applied the general rule used in cases of unintentional negligence — that mental suffering unaccompanied by bodily injury is not a ground for recovery. The general rule is not applicable in cases of a wrong where the act is wanton or willful or where the act is committed with malice and intended to cause mental distress. Some of the exceptions to the general rule requiring contemporaneous bodily injury include assault, illegal arrest, malicious prosecution, false imprisonment, seduction and slander. Lonergan v. Small, 81 Kan. 48, 105 Pac. 27 (1909). The general rule of negligence has no application to willful or wanton wrongs. A willful wrong involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not.
The plaintiff does not contend he suffered physical injury. He argues the defendant’s conduct was wanton. From the filing of the petition, through discovery and pretrial, Bowman had sought punitive damages for Doherty’s conduct claiming a reckless disregard of known consequences creates liability beyond negligence — it is wanton conduct. Wantonness is distinct from negligence and differs in kind. Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980 (1948). Wanton conduct is distinguished from a mere lack of due care by the fact that the actor realized the imminence of injury to others from his acts and refrained from taking steps to prevent the injury. This reckless disregard or complete indifference rises substantially beyond mere negligence. PIK Civ. 2d 3.02; Kniffen, 164 Kan. at 206.
In Britt v. Allen County Community Jr. College, 230 Kan. 502, 509, 638 P.2d 914 (1982), Justice Fromme wrote:
“In Vaughn v. Murray, 214 Kan. 456, 460, 521 P.2d 262 (1974), the test of gross and wanton negligence was iterated:
“ ‘Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence' but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the natural consequences of the actions of the negligent party. (Saunders v. Shaver, 190 Kan. 699, 701, 378 P.2d 70; Mann v. Good, 202 Kan. 631, 634, 451 P.2d 233; Pickens v. Maxwell, 203 Kan. 559, 456 P.2d 4.)”
Chief Justice Schroeder reviewed the law on negligent infliction of emotional distress in the recent case of Hoard v. Shawnee Mission Medical Center, 233 Kan. at 274:
“It has long been the general rule in Kansas that there can be no recovery for emotional distress suffered by the plaintiff which is caused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff. Hough v. Atchison, T. & S. F. Rly. Co., 133 Kan. 757, Syl. ¶ 4, 3 P.2d 499 (1931); Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 184, 268 Pac. 103 (1928); Whitsel v. Watts, 98 Kan. 508, 509, 159 Pac. 401 (1916); Lonergan v. Small, 81 Kan. 48, 50-51, 105 Pac. 27 (1909); A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 113, 26 Pac. 453 (1891). See also Prosser, Law of Torts § 54, at 328-29 (4th ed. 1971); 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance § 1; Annot., 64 A.L.R.2d 100, §§ 7, 9, 11. This rule, however, does not apply where the injurious conduct is willful or wanton, or the defendant acts with intent to injure. Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983); Lonergan v. Small, 81 Kan. at 51; 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance §§ 4, 17; 64 A.L.R.2d 100, § 8.”
Damages are not allowed for emotional distress when the record is devoid of evidence showing a specific act which inflicted emotional harm. The jury determined Doherty had been retained to handle Bowman’s case and failed to do so. Doherty, an attorney, should have known full well that his client’s bond would be forfeited and his client placed in jail if the matter was not properly handled. The act of the attorney which led to the injury suffered by his client was the failure of the attorney to act, which caused the client to be placed in jail and deprived of his freedom. One being negligently deprived of his freedom suffers an injury which could cause mental distress.
Plaintiff claims that the question of whether Doherty’s inaction was wanton was a question of fact to be determined by a jury. The general rule is if reasonable minds could differ, then whether a person acted wantonly is a question of fact to be determined by the trier of fact. Lantz v. City of Lawrence, 232 Kan. 492, 501, 657 P.2d 539 (1983). Reasonable minds could differ on whether the defendant acted in a wanton manner. The jury believed the defendant took insufficient action to obtain a continuance in the plaintiff s criminal case. Without a continuance, plaintiff s arrest for his failure to appear was foreseeable to a lawyer. Whether a client was injured and suffered mental distress when deprived of his freedom because his attorney failed to act or acted in a wanton manner is a question of fact for the jury to determine.
The extent of plaintiff s emotional distress was not fully developed at trial because of the partial summary judgment before trial against the plaintiff on the issue. A court should be cautious in granting a motion for summary judgment when the resolution of the dispositive issue necessitates a determination of the state of mind of one or more of the parties. Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 6, 676 P.2d 99 (1984). The trial court erred in granting partial summary judgment.
The defendant moved for a directed verdict after the close of the plaintiff s evidence, and again at the close of the defendant’s evidence. Doherty argued to the trial court that Bowman failed to present expert testimony to support the claim that defendant deviated from the appropriate standard of care for the attorney. The defendant contends on appeal the trial court should have granted the directed verdict on this ground.
In ruling on a motion for directed verdict pursuant to K.S.A. 60-250', the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where the evidence is such that reasonable minds could reach a different conclusion thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. Ettus v. Orkin Exterminating Co., 233 Kan. 555, 665 P.2d 730 (1983).
An attorney is obligated to his client to use reasonable and ordinary care and diligence in the handling of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other attorneys in his community. The duty of an attorney to exercise reasonable and ordinary care and discretion remains the same for all attorneys, but what constitutes negligence in a particular situation is judged by the professional standards of the particular area of the law in which the practitioner is involved. Here, Doherty was involved in the practice of criminal law.
Defendant alleges where a client claims his attorney erred in the handling of his client’s case, expert legal testimony as to the accepted standard for handling such a case is required for the proper determination of negligence by the trier of facts. Expert testimony is generally required and may be used to prove the standard of care by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard. Expert testimony is required with respect to a question an ordinary person is not equipped by common knowledge and skill to judge.
There is a common knowledge exception to the rule requiring expert testimony in malpractice cases. Expert testimony is not necessary where the breach of duty on the part of the attorney, or his failure to use due care, is so clear or obvious that the trier of fact may find a deviation from the appropriate standard of the legal profession from its common knowledge. Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978).
The trial court twice denied the defendant’s motion for a directed verdict finding the plaintiffs evidence placed the question of professional negligence within the common knowledge of the jury. We agree. Doherty was hired to represent Bowman in an alleged criminal check case. Whether or not Bowman’s loss of freedom, for failure to appear before the court when required, was due to Doherty’s deviation from the appropriate standard for an attorney fell within the common knowledge exception to the rule requiring expert legal testimony.
The defendant contends the plaintiff is not entitled to punitive damages because his action sounds in contract. Legal and medical malpractice generally constitute both a tort and a breach of contract. Ordinarily an action for liability of an attorney on the grounds of negligence for failure to discharge his professional duty to a client rests on the employment contract and therefore is contractual in nature. Where the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby, the action is contractual. Where the gravamen of the action is a breach of a duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort. Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62 (1977).
Lawyers, like other professionals, are required to have and exercise the learning and skill ordinarily possessed by members of their profession in the community. The trial court correctly overruled the defendant’s motions for directed verdicts by determining that both a legal and contractual obligation could have been breached. Plaintiff s action sounded in tort.
Defendant claims the trial court erred in allowing judgment for the full amount of the punitive damages award by the jury against Doherty where only 50% of the causal fault was assessed against Doherty under comparative negligence. Defendant argues that the punitive damages awarded to Bowman should be reduced to the 50% comparative fault attributed to Doherty.
The jury assessed 50% of the causal fault against Doherty, and awarded Bowman $100.00 in actual damages and $900.00 in punitive damages. The trial court reduced the jury’s award of actual damages by the percentages of fault attributable to Bowman (30%) and to the phantom party, the assistant district attorney (20%). However, the court did not reduce the jury’s award of punitive damages by the percentages of fault attributable to Bowman and the phantom party; instead, the court entered judgment against Doherty for the full amount of the jury’s award of $900.00.
From a review of the cases of states which have addressed this issue, various approaches to this question emerge. Some states, relying on the essential difference between wanton conduct and negligence refuse to allow any damages, actual or exemplary, to be reduced by comparative fault. Other courts refuse to apportion punitive damage awards, keeping intact the policy of punishing wanton or intentional acts. One state, Texas, allows apportionment of punitive damages.
Amoco Pipeline Co. v. Montgomery, 487 F. Supp. 1268 (W.D. Okla. 1980), examined the law of Oklahoma, Wisconsin and California and compared fault without apportioning punitive damages. Separate consideration was given in that case to punitive damages. The court refused to reduce the punitive damages. The court stated that the nature of punitive damages was “of punishment imposed for the benefit of society, as a restraint upon the transgressor and as a warning and example to deter him and others from committing similar offenses in the future.” 487 F. Supp. at 1272. The court relied on Tampa Electric Co. v. Stone & Webster Engineering Corp., 367 F. Supp. 27, 38 (M.D. Fla. 1973), which reached a similar conclusion.
The Tampa case was another situation in which punitive damages were sought based on allegations of gross negligence, not wanton misconduct. The court noted that the equitable course was to allow the diminished recovery of compensatory damages. Nevertheless, the court refused to apportion exemplary damages by comparative fault.
Both the Amoco and Tampa cases rely on the same doctrinal principle: “This procedure will equitably divide responsibility for claimed losses while keeping intact the policy of punishing wanton acts.” 367 F.2d at 38.
Similar results are found in other cases. In Comeau v. Lucas, 90 App. Div. 2d 674, 455 N.Y.S.2d 871 (1982), examining comparative negligence principles and punitive damages, the court stated, “We note only that punitive damages are not subject to apportionment.” 90 App. Div. 2d at 675. In Sturm, Ruger & Co., Inc. v. Day, 615 P.2d 621 (Alaska 1980), the court entered judgment for punitive damages while remanding the case for trial on issues of comparative fault. Since judgment was entered prior to comparative determination, no apportionment was contemplated.
It is Doherty’s contention that the trial court erred in failing to reduce the jury’s award of punitive damages by the percentages of fault attributable to Bowman and the assistant district attorney. This contention raises the following issue: Where punitive damages are awarded based on a finding of wanton conduct, is the defendant’s liability for payment of punitive damages limited by K.S.A. 60-258a to the percentage of causal fault attributable to him?
The intent and purpose of the legislature in adopting the comparative negligence statute, K.S.A. 60-258a, was to impose individual liability for damages based on the proportionate fault of all the parties to an occurrence which gave rise to the injuries and damages, whether or not those persons are joined as parties to the action. Punitive damages are allowed in Kansas, not because of any special merit of the injured party’s case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party’s rights. The purpose of punitive damages is to restrain and deter others from the commission of like wrongs. Punitive damages may be recovered for a breach of a contract when an independent tort is proven. Guaranty Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982).
In this case the jury was instructed to compare the negligence of the parties pursuant to K.S.A. 60-258a, which it did, and then to assign a percentage of fault to each party after determining Bowman’s total damage. The jury, under the trial court’s instruction, was finally required to determine whether Bowman should be awarded punitive damages to punish Doherty as a wrongdoer. The jury determined Doherty was a wrongdoer and assigned the sum of $900.00 as punishment to Doherty. The trial court properly refused to reduce the punishment assessed by the jury against Doherty’s conduct by the negligent fault apportionment assigned all the parties to the occurrence.
An award of punitive damages is to punish the wrongdoer, not to compensate for the wrong. Comparative negligence focuses on the harm suffered and proportionate fault of all the parties to the occurrence. Considerations are different in assessing punitive damages from those assuring the injured party proper compensation. Punitive damages and comparative fault are separate. The trial judge correctly refused to apportion the punitive damages assessed against the defendant by the percentage of fault attributed to the parties under the comparative negligence statute, K.S.A. 60-258a.
Other issues raised by the parties need not be discussed since the case must be retried. The judgment of the trial court is reversed and the case remanded for a new trial.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a declaratory judgment action. Central Security Mutual Insurance Company appeals from the district court’s determination that exclusionary language contained within its automobile liability policy was not applicable to an automobile accident in which Victoria DePinto was driving a van belonging to Hesston College. The Court of Appeals affirmed the trial court; the case is before this court on a Petition for Review.
In March, 1980, Victoria DePinto was a nursing student at Hesston College. As part of her nurses training, DePinto was required to participate with other students in clinical programs at. hospitals in the towns around Hesston. Hesston College provided vans to transport its nursing students to the hospitals. Different students volunteered to serve as drivers each semester. DePinto volunteered to drive for the semester beginning in February, 1980. She was required to drive to and from a Newton hospital on Tuesday evenings and again on Wednesday mornings.
DePinto did not drive the same van each time nor did she have her own keys to any van. She obtained a key each Tuesday afternoon from the nursing department office or some other campus location, obtained the assigned van at a campus parking lot, and then picked up the other students at the designated location near the campus cafeteria. Upon returning to the college following the Tuesday evening session, DePinto was required to park the van on campus. DePinto kept the keys overnight since she was to drive the assigned vehicle again early Wednesday morning and the campus offices were not yet open when the students departed. When the van was parked on Tuesday evening, she was not permitted to drive it again until Wednesday morning. DePinto was required to drive the most direct route to and from the hospital and she was not permitted to use the van for personal errands while in Newton. After returning to the campus on Wednesday afternoon, DePinto was required to park the vehicle and to return the van keys to the office from which she had obtained them. DePinto did not have permission to use the van at any other time or for any other purpose.
At approximately 6:30 a.m. on March 12, 1980, while enroute to the hospital, DePinto was involved in an automobile accident in Newton. The Hesston College van which she was driving collided with a pickup truck in which Richard Dirksen was a passenger. Dirksen was killed. Dirksen’s wife, Cindy Dirksen, subsequently filed an action for damages against DePinto and others in the United States District Court for the District of Kansas.
At the time of the accident, an automobile liability policy was in effect between Central Security Mutual Insurance Company and Thomas DePinto, father of Victoria DePinto. Since Victoria was a resident of her father’s household and did not own a car at the time of the accident, she was afforded coverage under her father’s policy. The policy contained the following provision concerning the use of cars other than those owned by the insured party:
“We insure other Cars You use with the permission of the owner. This doesn’t include Cars owned by, or furnished for the regular use of, You or resident members of Your family.”
Plaintiff claims that its policy excluded coverage for defendant, Victoria DePinto, in this accident on the basis that the van involved in the accident was “furnished for the regular use” of DePinto. Hesston College was permitted to intervene in the action. The trial court ruled that the exclusionary language contained in the policy was ambiguous and was to be construed in favor of the insured. The trial court concluded that the exclusionary provision was inapplicable and that the policy did provide coverage for the accident. Plaintiff appeals from that decision.
The purpose of an exclusionary clause within an automobile liability policy, that its coverage shall not extend to an automobile owned by or furnished for the regular use of the named insured or a member of the insured household, is to protect the insurer against the loss of premiums. It also protects the insurer against the uncompensated exposure which results from the insured’s use of other automobiles where the insured or members of the same household own two or more automobiles which are used interchangeably with the insured automobile or furnished the insured for regular use.
Was the exclusionary language of the insurance policy ambiguous, therefore subject to construction in favor of the insured? An insurance policy is a contract. The plain and unambiguous language contained within the contract must be given its plain meaning. Where an insurance contract is open to different constructions, that most favorable to the insured must be adopted, but this rule does not authorize a perversion of the language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.
A basic principle in the construction of contracts is that an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision. Foltz v. Begnoche, 222 Kan. 383, 565 P.2d 592 (1977). This rule is particularly applicable to the interpretation of contracts of insurance and requires liberal construction in favor of the insured. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979). Coverage clauses of automobile liability policies are to be broadly interpreted to afford the greatest possible protection to the insured while exclusionary clauses are interpreted narrowly. United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978). Thus, if the contract term is ambiguous, it will be construed in favor of coverage of DePinto.
An ambiguity is said to exist if “the words used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings.” Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939 (1973), 66 A.L.R.3d 442. The phrase “regular use” may seem to have several possible meanings. It could refer to the frequency of the use of the automobile, the purpose for which the use of the automobile was permitted, or the degree of permission needed in order to use the automobile. Where an insurer intends to limit or restrict the coverage under its policy, it should use language which clearly reveals its stated purpose. Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, Syl. ¶ 8, 529 P.2d 171 (1974).
It is noted in 12A Couch on Insurance 2d § 45:1076 (rev. ed. 1981):
“The phrase ‘not furnished for the regular use’ of any person is to be given its plain, ordinary meaning, which is simply that the insured was not covered by the policy on the insured vehicle if he was injured in some other car which he could regularly use.” p. 729.
The Court of Appeals held in Central Security Mut. Ins. Co. v. DePinto, 9 Kan. App. 2d 85, 87, 673 P.2d 122 (1983):
“We agree with appellant that the phrase is not ambiguous .... The words are not unusual and their meaning is well known in common parlance. It is not a matter of ambiguity that causes courts to struggle with this phrase. Courts struggle with its application because each case must be decided upon its own facts and circumstances, and therefore, its application is a struggle. Its meaning is not.”
Thus, the greatest portion of litigation on this issue is due not to an ambiguity of the term but rather the problem with applying the term to each set of facts. We agree with the Court of Appeals determination that the phrase “regular use” contained within the contract was not ambiguous.
The question of whether the particular use of a nonowned automobile is a “regular use” is a question of fact. See Brooks v. Link, 212 Kan. 690, 695, 512 P.2d 374 (1973). This case was submitted to the trial court upon documentary evidence including the deposition of defendant DePinto, and stipulated facts. Consequently, this court on review has as good an opportunity to examine and consider the evidence as did the trial court, and to redetermine what the facts establish. Stith v. Williams, 227 Kan. 32, Syl. ¶ 2, 605 P.2d 86 (1980). The burden of proving the application of the exclusionary clause of the insurance policy falls upon the plaintiff insurance company. Alliance Life Ins. Co. v. Ulysses Volunteer Fireman’s Relief Assn., 215 Kan. 937, Syl. ¶ 10.
There are three Kansas cases in which “regular use” exclusions in automobile insurance policies were an issue. See Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 292 P.2d 711 (1956); General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P.2d 302 (1966); and Brooks v. Link, 212 Kan. 690. In affirming the trial court, the Court of Appeals, in a well written opinion by Judge Wahl, District Court Judge, assigned to the Court of Appeals, reviewed the three Kansas cases and similar cases from other jurisdictions. 9 Kan. App. 2d 85, 673 P.2d 122 (1983).
In Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, the court considered the exclusionary phrase “furnished for regular use” to the named insured. This involved the use of a “car pool” vehicle which the insured seldom used but could have used more often. The trial court found that the vehicle was not furnished to Miller for his regular use. The Supreme Court affirmed. The court noted “that courts have found it difficult to lay down any hard and fast rule, and that, generally speaking, each case has been decided upon its own facts and circumstances.” 179 Kan. at 54.
In General Leasing Corp. v. Anderson, 197 Kan. 327, the court considered the meaning of “furnished for regular use” as it applied to a car loaned by a father to his adult, self-supporting son. The Supreme Court affirmed the trial court’s ruling that it was not furnished for regular use. The son kept his car in Emporia. The father kept his car in Burlington and it was not usually available to the son or used by him regularly. The son had the car for a special occasion and had used the father’s car only three or four times a year.
The phrase “frequent or regular use” of a “non-owned automobile” was before the court in Brooks v. Link, 212 Kan. 690. Link lived with his sister, Shirley. Shirley owned a car which was insured and the insurance covered Link’s use of the car as a relative residing in the same household. Excluded from coverage under the policy was any automobile “furnished or available for frequent or regular use.” Shirley’s fiance, Kenneth, spent much time at Shirley’s home in the evenings and on weekends. When he was there he made his car available to Link and Shirley. They both used it with his consent and by his agreement. They had duplicate keys for it. Kenneth had no insurance on the car. Link, while driving Kenneth’s car, struck Brooks. The car was found to be furnished for frequent or regular use by Shirley and Link, was not a “non-owned automobile” within the meaning of Shirley’s policy, and the policy provided no coverage for Link’s use of Kenneth’s car. The court, after examining many cases, observed:
“[T]he courts agree that the question whether the particular use of a ‘non-owned automobile’ is a ‘regular use’ within the meaning of the policy is a question of fact. The courts are in agreement that no hard and fast rule has been or can be established for determining this question but each case must stand or fall upon an examination of the facts in the particular case. Furthermore the cases emphasize that the purpose of the so called ‘drive other automobiles’ clause or ‘non-owned automobile’ clause is to cover only casual or occasional use of other cars. Any other interpretation would subject the insurance company to greatly added risks without the payment of additional premiums. ... It seems to us that the availability of the car and the number of times it is used and the presence or absence of an express or implied understanding as to use are simply factors to be considered along with all the other circumstances in the case in determining whether or not a vehicle has been furnished for ‘frequent or regular use’ within the meaning of an insurance policy.” 212 Kan. at 695-96.
In Travelers Indemnity Company v. Hudson, 15 Ariz. App. 371, 375, 488 P.2d 1008 (1971), the court defined regular use as “continuous use; uninterrupted normal use for all purposes; without limitation as to use; and customary use as opposed to occasional use or special use.”
In Wallace Co. v. State F. M. Auto. Ins. Co., 220 Or. 520, 526, 349 P.2d 789 (1960), the Supreme Court of Oregon stated that the phrase “furnished for regular use” as used in context does not imply the manner of use “but implies a right to the regular use of the automobile in the sense that there is an expressed or implied understanding with the owner of an automobile that the insured could have the use of the particular automobile” at such time as he desired, if available.
The parties in the instant case discussed numerous cases from other jurisdictions addressing this issue. As stated in the Brooks case, since each of these cases was decided upon its own particular facts, they are of no direct precedential value. 212 Kan. at 695. See also 12A Couch on Insurance 2d § 45:1076; Annot., 8 A.L.R.4th 387 § 6; and 7 Am. Jur. 2d, Automobile Insurance § 244.
The cases cited by appellant generally involved the use of an employer’s vehicle by an employee. See Kern v. Liberty Mutual Insurance Company, 398 F.2d 958 (8th Cir. 1968), and United Services Auto. Ass’n v. Couch, 643 S.W.2d 668 (Tenn. App. 1982). It is stated that in such employment situations, the use of the vehicle is generally considered to be a regular use. 7 Am. Jur. 2d, Automobile Insurance § 244; see Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50. This case clearly does not fall under the employment situation for DePinto was not required, as a condition of her education, to drive her fellow students to Newton, and received no compensation for doing so.
In 12A Couch on Insurance 2d, p. 730, the following test is set forth for determining if an automobile is furnished for “regular use:”
“The test whether an automobile is furnished for ‘regular’ use within an exclusionary clause is not necessarily the frequency or regularity of its use, although an infrequent and casual use by special permission on particular occasions may not constitute a furnishing for regular use. It is the nature of the use for which the vehicle is intended and to which it is put, rather than the actual duration of use, which is significant.”
7 Am. Jur. 2d, Automobile Insurance § 244, p. 810, states:
“A vehicle is not furnished for the regular use of an insured where he must obtain permission for each instance in which he uses the vehicle, or where the times and manner of use of the automobile by the insured are determined solely by the owner of that automobile.”
Applying the various factors, the Court of Appeals determined:
“Turning to the facts of the instant case, DePinto’s use of the college vans was strictly circumscribed. She had no personal use of the vehicles. Even the route of her travel was regulated by the college. She did have the keys on Tuesday nights but that was merely because the college offices were neither open when she returned nor when she left again on Wednesday morning. The vehicle was not available for her personal use on Tuesday night. The students’ driving of the college vans was for the benefit of Hesston College in that no driver had to be employed to take the nursing students to and from the neighboring hospitals for their training. As to DePinto, it was not a continuous use, uninterrupted normal use for all purposes, or without limitation as to use. DePinto’s use of the vans was merely an occasional or special use. The policy does provide coverage for the accident in question.” 9 Kan. App. 2d at 89.
The judgment of the trial court was affirmed by the Court of Appeals.
DePinto’s use of the van was not a “regular use.” The district court and the Court of Appeals both correctly held the exclusionary provision in the automobile liability contract is inapplicable and the policy provided coverage to DePinto.
The judgment is affirmed.
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Per Curiam:
This is a disciplinary proceeding against Charles A. Chartier, a Kansas attorney. There are two separate complaints against respondent presently before this court. The other case is State v. Charles Chartier, No. 55,820, filed this date.
Formal complaints in both cases were filed February 16, 1983. After hearings were held on the matter the hearing panel unanimously recommended the respondent be suspended from the practice of law by this court pursuant to Rule 203(a)(2) (230 Kan. xcix) for violations of DR 6-101(A)(3) (230 Kan. cxxii), DR 9-102(A) (230 Kan. cxxvii), and DR 9-102(B)(4) (230 Kan. cxxvii).
The respondent filed exceptions to the hearing panel reports.
The hearing panel made the following findings of fact:
1. The respondent, Charles A. Chartier, is an attorney-at-law. His last registration address with the clerk of the appellate courts of Kansas is 726 V2 North Washington, P.O. Box 477, Junction City, Kansas 66441.
2. Respondent represented Dale and Patricia Buchenau in connection with the sale of their mobile home to William and Mary Biggs. Respondent had represented the Buchenau family for approximately twenty-one years and was considered by them to be their family lawyer.
3. Respondent prepared a contract dated May 8, 1981, for the sale of the mobile home. The purchase price was $1600 and was paid $1000 cash upon the execution of the contract and delivery of possession of the mobile home on May 8,1981. The balance of $600 was paid to respondent to hold in escrow until the Buchenaus could deliver a certificate of title to the Biggs.
4. iThe sum of $600, representing the balance of the purchase price of the mobile home, was paid to respondent in accordance with the contract of sale. Respondent deposited that amount in his general account. Other funds belonging to respondent were deposited in that account, also.
5. In addition to preparation of the contract for sale of the Buchenaus’ mobile home, respondent agreed to obtain a certificate of title for the mobile home. The original certificate of title was lost. Respondent failed and neglected to either secure the certificate of title for the mobile home or withdraw from his employment to do so.
6. Respondent failed and neglected to respond to telephone calls from Ms. Buchenau. The only way in which Ms. Buchenau could communicate with respondent was by making a special trip to respondent’s office and waiting there until he entered the office.
7. After the death of Mr. Buchenau in February, 1982, Ms. Buchenau requested return of her file. Respondent failed and neglected to promptly return Ms. Buchenau’s file to her.
8. The Biggs, the purchasers of the mobile home, eventually procured a certificate of title to the mobile home in the fall of 1982. Thereafter, both Ms. Biggs and Ms. Buchenau made demands on respondent for payment of the escrow funds. Due to conflicting claims against the escrow funds, respondent was justified in refusing to pay the entire amount to Ms. Buchenau, but respondent failed and neglected to make any attempt to resolve the conflict.
9. Ms. Buchenau was required to retain the services of another attorney in order to finally resolve the matter of the payment of the escrow funds. Eventually, $85 was paid to the Biggs to reimburse them for their expenses in obtaining a duplicate certificate of title to the mobile home and the balance of the escrow funds in the amount of $515 was paid to Ms. Buchenau.
Respondent alleges he tried numerous methods to obtain the certificate of title to the mobile home but all failed. He advised Ms. Buchenau in late 1981 that unless the certificate of title could be located, a quiet title action would have to be taken in the district court, which would cost $250 to $350. Ms. Buchenau allegedly told respondent not to file the action since she did not want to pay the $250 to $350.
As for the $600 left in escrow with the respondent, Chartier contends Ms. Buchenau authorized him to deduct $250 from the amount to pay her son’s legal fees for services rendered by respondent. However, respondent also states he did not make the deduction since he knew Ms. Buchenau needed the money.
Respondent indicates he returned Ms. Buchenau’s file to her September 2, 1982. The panel made the following conclusions:
1. DR 9-102(A) requires that all funds of a client shall be deposited in one or more identifiable bank accounts and that no funds belonging to the lawyer shall be deposited therein. The balance of the purchase price for the mobile home in the amount of $600 was deposited in respondent’s general account. Other funds belonging to respondent were deposited in that account, also. The escrow funds should have been deposited in a trust account. The deposit of the escrow funds in respondent’s general account constitutes a violation of DR 9-102(A).
2. Respondent’s failure to return Ms. Buchenau’s file to her upon request following the death of her husband in February 1982, constitutes a violation of DR 9-102(B)(4). That rule requires that a lawyer promptly deliver to his client properties in the possession of the lawyer which the client is entitled to receive. Clearly, Ms. Buchenau was entitled to her file. She should not have been required to camp out at respondent’s office to obtain it.
3. Respondent was employed to procure a certificate of title to the mobile home sold by the Buchenaus to the Biggs and accepted that assignment. Respondent neglected to obtain the certificate of title. Additionally, respondent persistently refused to communicate with his client concerning his assignment. The panel is persuaded that such conduct constitutes a violation of DR 6-101(A)(3).
Respondent argues the State failed to prove clearly and convincingly he violated his professional responsibilities. It has been stated that: “A disciplinary action is more serious than a civil action and the charges must be established by substantial, clear, convincing and satisfactory evidence.” State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981).
Respondent cites State v. Dixon, 233 Kan. 465, 664 P.2d 286 (1983), for support of his argument that a mere error in judgment is not sufficient evidence for disciplinary action. The instant case does not involve a mere error in judgment. Despite respondent’s factual allegations there is still more than enough clear and convincing evidence to support the panel’s findings.
Respondent also argues the recommended discipline is more serious than is justified. This court has the authority to reject the panel’s recommended discipline. State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974). The court has the duty to examine the evidence and determine the judgment to be entered. State v. Leon, 229 Kan. 178, 180-81, 621 P.2d 1016 (1981).
This court has held in other disciplinary actions that it “takes a dim view of an attorney who commingles a client’s money with his or her own and, on occasion, that action has resulted in the imposition of harsh penalties.” State v. Freeman, 229 Kan. at 644, and cases cited therein.
Respondent’s other violations, including failing to give Ms. Buchenau her file until many months after she had requested it and failing to obtain the title to the mobile home after promising to do so, also indicate substantial violations. The lost title was finally obtained by Ms. Buchenau from the motor vehicle department without excessive expense.
While these violations of the disciplinary rules taken alone might not require this court to impose the penalties recommended by the hearing panel, when previous ethical violations and the other case presently before us are considered, we ratify the action taken in State v. Chartier, No. 55,820, handed down this date, and order Charles A. Chartier be indefinitely suspended from the practice of law.
This suspension becomes effective when this opinion is filed with the clerk of the Supreme Court. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from an order of adoption. Baby Boy Irons was born at 5:21 a.m., April 22, 1982, at Bethany Medical Center, in Kansas City, Kansas. Later that day the infant’s unwed, eighteen-year-old mother, Anjanette Irons, signed a written consent to the adoption of the baby and waived notice of hearing. The consent was acknowledged before a notary public.
At 10:20 a.m. the following day, a petition seeking adoption was filed in the district court of Johnson County, Kansas, along with the written consent. On May 12, 1982, the appellant contested the adoption alleging her consent was not freely and voluntarily given. The trial court ruled against Ms. Irons.
Appellant learned she was pregnant when she went to Dr. Alvin Silvers on October 7, 1981. After conducting a brief physical examination of appellant, Dr. Silvers confirmed her pregnancy and asked what she was going to do with the baby. Anjanette said she was going to keep the child. Dr. Silvers told her considering her age and economic condition she should put the baby, up for adoption or have an abortion. Anjanette was seventeen at the time. He also told her he did not perform abortions. Dr. Silvers testified he gives this advice to all unwed, pregnant patients who lack financial resources.
Anjanette Irons’ father and mother were divorced when Anjanette was quite young. Though her father lived within forty miles of Kansas City, she seldom saw him. She and her mother, Loretta Hernandez, had a history of conflict. Anjanette had made her home with Martha Donnelley for the past year or so, going home on weekends. She was employed at a nursing home where she made $3.60 per hour.
Some eighteen months prior to her pregnancy appellant started dating Steve Lewis. She dated no one else. She and Steve had sexual relations regularly during that time. Steve was in the military service with orders to go to Korea in the summer of 1981. He professed love for Ms. Irons and discussed marriage to her with her and her mother in July before leaving. Ms. Hernandez discouraged the marriage because of Lewis’s imminent departure for a lengthy period. She was not aware of her daughter’s pregnancy at the time. Appellant wrote Steve in Korea and told him of her pregnancy. He acknowledged his paternity in a letter to her.
Ms. Irons visited Dr. Silvers each month after her original visit in October until the baby was born. On each visit prior to February, 1982, Dr. Silvers continued to advise her she should give up her baby for adoption. After each discussion, appellant advised the doctor she was going to keep her baby.
At the February visit with Dr. Silvers, Ms. Irons reported she had received a valentine from Steve Lewis but he had not mentioned her pregnancy. She also reported she had quit her job and had no income. After the examination, Dr. Silvers talked to appellant and asked her if she had changed her mind about keeping the baby. She reluctantly stated she thought adoption was her only option. After that, Dr. Silvers suggested appellant talk to his daughter, Lori Klarfeld, an attorney who handled adoptions. That evening Ms. Irons called Ms. Klarfeld and arranged a meeting.
The meeting between appellant and Ms. Klarfeld occurred on March 10, 1982, in Dr. Silvers’ office. At that meeting Ms. Klarfeld discussed the adoption procedure with appellant. Klarfeld also told her she was not appellant’s attorney but represented the couple who wanted to adopt the baby. Appellant told Ms. Klarfeld she believed adoption was best for the baby. She mentioned she had grown up without a father, and believed a child should have two loving, capable parents. Ms. Klarfeld took a medical and family history from Anjanette Irons. She told her she had a Jewish family picked out to adopt the baby. Appellant told Ms. Klarfeld she preferred a Catholic family. Ms. Klarfeld responded she was not sure she could arrange that but she would see what she could do. At the conclusion of their discussion, Ms. Klarfeld also said, “I think you have made the right decision, Anjanette, for both the baby and you.”
Appellant and Ms. Klarfeld did not meet again until April 22, 1982, after the birth of the baby. Appellant, however, telephoned Ms. Klarfeld on April 4. The purpose of this phone call was to inform Ms. Klarfeld appellant was not going through with adopting her baby to a New York couple. Ms. Klarfeld and Dr. Silvers had heard appellant was considering such adoption. Appellant told Ms. Klarfeld she had contacted a New York couple as the result of an advertisement she saw in the newspa per but she did not care for the New York family, and therefore had abandoned the idea.
Appellant was admitted to Bethany Medical Center on the morning of April 22, 1982, at 3:40 a.m. The birth of the child occurred at 5:21 a.m. with Dr. Silvers as attending physician. At about 10:30 a.m. that morning, appellant requested to see the baby but the nurse told her she could not see him because he was awarded to the court.
Appellant did not notify attorney Klarfeld when she entered the hospital, but Ms. Klarfeld called on appellant in her room at about 11:00 a.m. Ms. Klarfeld had received a call from her father, Dr. Silvers, telling her the baby had been born. Ms. Klarfeld told appellant she had a Catholic family for appellant’s child. Ms. Klarfeld placed the consent papers on the bedstand and told appellant they had to wait for a notary. Ms. Klarfeld did not read the consent document to appellant, but she reviewed it with her. Appellant did not read it herself. She testified however, she understood it was the consent to give her baby up for adoption. She later stated she signed the consent so she could see her baby. According to both the notary and Ms. Klarfeld, appellant looked well, had no trouble signing the document and did not question what she was doing. Ms. Klarfeld did not tell appellant that signing the papers was an irrevocable act, but appellant understood the document was a consent to adoption. Shortly after Ms. Klarfeld left with the executed instruments the nurses allowed appellant to see the child. She saw the baby one other time that afternoon. She was not allowed to see the child again.
The afternoon of the birth, appellant’s sister, who did not know appellant was thinking of adoption, came to the hospital and brought a stuffed animal. Appellant tearfully told her she had given the baby up. On the afternoon of April 23, 1982, Ms. Klarfeld obtained an affidavit from appellant to prove the paternity of the baby. Appellant was released from the hospital on the morning of April 24, 1982.
On Sunday afternoon, April 25, 1982, appellant telephoned Ms. Klarfeld and told her she wanted her child back. Appellant said that if she did not receive her child back she would go to the district attorney. Appellant then hung up. Ms. Klarfeld called appellant Monday morning and asked appellant to come to her office that day. Appellant testified Ms. Klarfeld told her to bring clothes for the baby if she was going to take it home with her. Appellant purchased clothes and went to Ms. K1 arfe Id’s office with her sister and a girlfriend at about 10:00 a.m. expecting to get the baby. Ms. Klarfeld informed appellant her clients would not relinquish the baby and she would have to find herself another attorney.
Appellant views herself as easily influenced and believes she was unduly influenced by Dr. Silvers to further his daughter’s career. Dr. Silvers was the only individual with whom appellant discussed her options concerning the birth of her child. Her mother, Steve Lewis’s mother, and her female friends were not consulted.
Loretta Hernandez, appellant’s mother, testified that during appellant’s pregnancy she mentioned giving up her child for adoption a few times, the first time being in February. Although Ms. Hernandez did not believe her daughter would give up her baby, they never discussed the matter.
On the evening of April 22, 1982, when Ms. Hernandez learned appellant had signed the consent papers, she was shocked. Ms. Hernandez testified she was upset but did not say anything about it to appellant. On Friday, April 24, 1982, Ms. Hernandez telephoned Ms. Klarfeld. Ms. Hernandez testified she asked Ms. Klarfeld to give the baby back. Ms. Klarfeld testified Ms. Hernandez called only to inquire about being reimbursed for the hospital expenses-.
Several of appellant’s friends testified the length of time Dr. Silvers talked to the appellant at each of her monthly visits ranged from forty minutes to an hour and a half. Other testimony indicated the discussions were much shorter.
The trial court found there was no evidence of undue influence by either Dr. Silvers or Lori Klarfeld. Further, it found appellant failed to meet her burden of proof to show her consent to the adoption was not freely and voluntarily given.
The appellant argues the trial court erred in ruling on evidentiary questions. Initially, testimony alleged to be immaterial was admitted. The testimony was that of an unwed, forty-one-year old mother of four. She told the court she had been a patient of Dr. Silvers’ when she was pregnant. Dr. Silvers had advised her to give up her child for adoption due to her status as an unwed mother. The witness testified she had not felt unduly pressured by Dr. Silvers and chose to keep her child. The evidence was material and was properly admitted.
The appellant argues two points of error concerning the testimony of Dr. Kresser. Dr. Kresser is a counseling psychologist who saw appellant at the request of appellant’s counsel approximately a week before trial. Dr. Kresser tested appellant and consulted with her.
First, appellant alleges the court érred in refusing to permit Dr. Kresser to testify as to whether appellant’s consent was freely and voluntarily given. When evidence is excluded by the trial court, we have held, “One seeking reversal of a judgment because of exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of.” Atkins v. Bayer, 204 Kan. 509, 511, 464 P.2d 233 (1970). The appellant does not indicate what Dr. Kresser’s testimony would be on this point. This is a failure to demonstrate prejudice, since it is unknown what effect the response might have had on the evidence and judgment. The exclusion of Dr. Kresser’s testimony, therefore, did not constitute error.
The appellant also argues the trial court erred since its findings reflect it rejected Dr. Kresser’s testimony that appellant had never made a final decision about the adoption. A factfinder need not accept, without question, an expert’s testimony. The opinion testimony of an expert is to be considered as any other testimony and should receive such weight and credit as the factfinder decides to give it. See Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978), and PIK Civ. 2d 2.50. It is not error for the factfinder to disregard opinion testimony of an expert. The trial court’s finding here reflects a legally correct evaluation of all the evidence presented.
Appellant concludes by contending the trial court erred in refusing to permit the examination of Lori Klarfeld concerning the amount of her attorney fee. Ms. Klarfeld admitted she was being paid in this matter and that her minimum fee in adoption cases is $1000. The appellant wanted to know exactly how much she was making in this case in order to infer her fee affected her credibility as a witness. The trial judge ruled that such testimony was immaterial and irrelevant. The existence of a fee, which was allowed, showed there might be financial considerations tainting Ms. Klarfeld’s testimony. The exact amount of the fee in no way tends to prove any material fact and is, as the trial court held, irrelevant and immaterial.
The appellant next argues it was error to place the burden of proof on the appellant to prove her consent to the adoption was not freely and voluntarily given. K.S.A. 59-2102(o) pertains to the consent required from the natural mother for the adoption of her child. It provides:
“If consent has been given in writing and has been filed of record in the district court, the consent may be revoked, but only if, prior to final decree of adoption, the consenting party alleges and proves that the consent was not freely and voluntarily given. The burden of proving that the consent was not freely and voluntarily given shall rest with the consenting party.”
The legislative intent evidenced in the law reflects a strong public policy to stabilize adoptions and prevent revocation of consent of the mother on a mere whim. This court has recognized when the consent is properly acknowledged as it was here, “[t]he acknowledgement serves as prima facie proof of the validity of the consent, and . . . that the written consent was freely and voluntarily given.” In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981).
In order to rebut the presumption of validity there must be a showing of fraud, duress, undue influence, mistake or lack of understanding. See In re Adoption of Chance, 4 Kan. App. 2d 576, 583, 609 P.2d 232 (1980), and 1 Elrod, Kansas Family Law Handbook § 6.17(5)(a) (1983). The mere assertion of úndue influence, however, is not sufficient to shift the burden of proof. The existence of such influence must be proved by the one asserting it. See 25 Am. Jur. 2d, Duress and Undue Influence §43.
In her efforts to prove undue influence the appellant contends Dr. Silvers and his daughter, Lori Klarfeld, were both in confidential relationships with the appellant, one as her doctor, the other as her lawyer. This court has held a presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that an individual occupies a confidential or fiduciary relation with another. Such a presumption is raised and the burden of proof shifted, however, when, in addition to the confidential relation, there exist suspicious circumstances. See In re Estate of Brown, 230 Kan. 726, 732, 640 P.2d 1250 (1982).
The question then is whether there was sufficient proof, not only of the existence of a confidential relationship but also whether there was sufficient proof of suspicious circumstances surrounding either Lori Klarfeld’s position as an attorney in this situation or Dr. Silvers’ position as the appellant’s doctor, to shift the burden of proof.
We will first consider the allegation of a confidential relationship between Dr. Silvers and appellant. The rules pertaining to the relationship of doctor and patient are explained as follows:
“A person in ill health is more subject to the domination and undue influence of another than is a person of sound body and mind. The physician naturally is in a position of trust and confidence as regards the patient, and his opportunities to influence the patient are unusual. Hence all transactions between physician and patient are closely scrutinized by the courts, which must be assured of the fairness of those dealings.” 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 168, p. 299.
Due to the position of trust and confidence between Dr. Silvers and appellant, as evidenced by her acceptance of his advice regarding the adoption of her baby, we find Dr. Silvers held a confidential relationship with Anjanette Irons.
The relationship of Lori Klarfeld and Anjanette Irons is more complicated and requires careful scrutiny. It has been stated:
“The authority of an attorney begins with his retainer; but the relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of the parties. The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession.” 7 Am. Jur. 2d, Attorneys at Law § 118, pp. 187-88.
See also Caldwell v. Bigger, 76 Kan. 49, Syl. ¶ 4, 90 Pac. 1095 (1907).
As previously indicated, Ms. Klarfeld was contacted by Anjanette Irons at the suggestion of Dr. Silvers for the specific purpose of discussing the legal aspects of adoption. They met in Dr. Silvers’ office on March 10,1982. Anjanette was merely eighteen years of age and was not represented by other counsel. At the meeting, attorney Klarfeld advised Ms. Irons about adoption. She also told Ms. Irons she was not her attorney but was attorney for the adoptive parents. As it turned out, Klarfeld did not have a client. A couple had previously discussed adoption with her, but when she contacted them about adopting Ms. Irons’ baby they advised Ms. Klarfeld they had already adopted a child. Anjanette Irons and Lori Klarfeld subsequently had a telephone conversation and one additional meeting about the adoption. The second meeting was in the hospital, a few hours after the birth of the baby on April 22. Ms. Klarfeld had been notified by her father that Ms. Irons had given birth. Ms. Klarfeld prepared a consent to adoption and a waiver of notice and brought them to the hospital for Anjanette’s signature. At this time, Anjanette was still not represented by other counsel. In the meantime, Ms. Klarfeld had been employed by the adoptive parents, Bruce and Susan Lieberman. Ms. Klarfeld explained the content of the consent and waiver to Ms. Irons. Ms. Irons then signed the documents.
Taking into consideration all the circumstances of this case— Anjanette’s age, her lack of experience and her contacts with Ms. Klarfeld — we find an attorney-client relationship existed between them. The only reason Anjanette contacted Ms. Klarfeld was to seek legal advice. In adoption cases, such as this, the attorney can represent both the natural and adoptive parents. The attorney owes both sets of parents a duty to provide good faith advice concerning the legal consequences of their acts. This multiple representation can continue so long as no conflict develops between the parties. However, if a conflict occurs, the attorney must choose which conflicting interest he or she will represent. The best way to apprise the parties of the choice is by use of a frank discussion before representation commences, as was done by Ms. Klarfeld. Since Lori Klarfeld’s relationship with Anjanette Irons was confidential, she owed Anjanette the duty of complete legal advice concerning the nature and consequences of adoption.
As previously noted, in order to shift the burden of proof away from the appellant, it is not enough that the confidential relationship alone is proven. Suspicious circumstances must also be shown to exist. In this case, the mere existence of the family relationship between appellant’s doctor and attorney was suspicious enough to require the burden of proof to shift. The trial court, therefore, erred in ruling the burden of proof was upon appellant, Anjanette Irons. The separate question is whether this error warrants reversal. We have often held if the judgment of the trial court is correct it is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Taylor v. Department of Health & Envi ronment, 230 Kan. 283, 286, 634 P.2d 1075 (1981). Appellant cites Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600 (1927), as authority for requiring reversal when the erroneous reason used by the trial court involves an incorrect ruling on the burden of proof. Quinton’s holding does not stand for that proposition. In Quinton, the plaintiff lost at the trial level. On appeal, plaintiff argued the trial court erred in placing the burden of proof upon it at trial. This court held the error was immaterial and affirmed the trial court by saying: “Where each party to a lawsuit had a fair opportunity to present all his evidence, the question as to which litigant had the burden of proof is immaterial . . . .” 122 Kan. 814, Syl. ¶ 6.
The argument in Quinton is similar to that here. Anjanette Irons, the plaintiff below, argues the burden of proof was improperly placed upon her at trial. While .she is right, the error does not necessarily warrant reversal as it would in a jury trial. The record must be examined to determine if the evidence shows appellees sustained the burden of proof which should have been placed upon them at trial. This will be resolved in analysis of the next issue, where appellant attacks the sufficiency of the evidence to support the trial court’s finding that the consent to the adoption was freely and voluntarily given. In accordance with K.S.A. 59-2102(c), the revocation of a consent to adoption is allowed only when it is proven the consent was not freely and voluntarily given.
It is imperative to note this court’s scope of review when determining the sufficiency of the evidence. The Court of Appeals in a previous adoption case articulated these rules. See In re Adoption of Chance, 4 Kan. App. 2d 576, 583, where the court stated:
“Whether a consent to adoption was freely and voluntarily given or was tainted by . . . undue influence . . . necessarily depends on the facts and circumstances of each case. As such, these issues are to be determined by the trier of fact who has the best opportunity to weigh the evidence and test the credibility of witnesses. . . . It is not the function of this court to weigh conflicting evidence or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings and not with evidence which might have supported contrary findings.”
The evidence in this case showed the appellant had many months to consider her options. She had no source of income at the time of the birth. Her contact with the father of the child had been sporadic and only once had he acknowledged the child was his. The adoption procedure was thoroughly explained to her by Ms. Klarfeld. Ms. Irons made an effort on her own to seek a couple for adoption in New York. After the baby was born, Ms. Klarfeld prepared the adoption papers. When she called upon Anjanette at the hospital she explained the meaning of the consent and the waiver. Anjanette expressed no misgivings about giving up the child when she signed the consent form. After the signing, Ms. Irons told a nurse she thought she had done the right thing. According to the witnesses, there was no appearance of coercion or misunderstanding.
As to Dr. Silvers’ role, he encouraged the appellant to have her baby adopted because he felt it would be best for her and the baby. Dr. Silvers testified he always encouraged adoption for unwed mothers who had no financial support, since, from his experience, this was the best option for both the natural mother and baby. The appellant did not have a job or a home and was young and unwed. Three former patients in similar situations testified Dr. Silvers had given them the same advice. Two considered his advice, but kept their babies anyway. One testified she met with Dr. Silvers only one and then discontinued her visits because he had asserted too much pressure on her to have her baby adopted. All three were patients of Dr. Silvers after his daughter, Lori Klarfeld, commenced practicing law. Anjanette Irons was free to seek medical services from another physician if she felt unduly pressured to have her baby adopted. She was also free to seek advice from family and friends.
Dr. Silvers was not present when appellant signed the consent document and hence could not have exerted undue influence at the time on his patient. It is argued by appellant that she was forced into signing the consent by the withholding of her baby from her until she signed the consent. The evidence does not support her argument. Anjanette took nearly five months to make up her mind to go through with the adoption. From the February meeting with Dr. Silvers until the birth date, she did not waver in her resolve. Under the facts of this case, Dr. Silvers was justified in telling the nurses the baby was up for adoption because it was the truth. Also, knowing human nature, he knew it would be less painful for Anjanette if she did not see the child, hence the ban on Ms. Irons’ seeing the baby. There was some evidence the withholding of the baby from Ms. Irons was for the purpose of forcing her to sign a consent to adoption. On the other hand, there was testimony it was for the humanitarian reason of protecting Anjanette from a painful experience. The trial court found the latter to be true. On appeal we will not disturb the findings of fact of a trial court if they are supported by substantial competent evidence.
The only evidence that the appellant’s consent was not freely and voluntarily given occurred several days after she signed the consent documents. The legislature has provided that only the will of the parent at the time of the giving of the consent will be considered in an adoption contest.
This legislation was enacted in 1968, when the Kansas legislature adopted a new law which provided a natural mother no longer had an opportunity to revoke her consent before the final order of adoption was entered. The new legislation was in response to the realities of the adoption situation. Speaking on the change, it was stated: “Consent to an adoption should not be treated as a typical contract question, but both the adopting parties and the child have legitimate expectations once the adoption process has begun. The natural parents should not be able to upset these expectations at whim.” Berenson, Survey of Kansas Law: Family Law, 17 Kan. L. Rev. 349, 353 (1969).
The evidence indicates Anjanette Irons changed her mind more on this disallowed “whim” than after the thoughtful consideration required by the new law. Appellant argues this law is too harsh and that “[t]rial courts must fill the breach left by the legislature by carefully scrutinizing all such transactions.” It is not for courts to change public policy which was clearly and unambiguously expressed by the legislature. In discussing a change in adoption laws much like the changes by the Kansas legislature, the Illinois Appellate Court discussed the purpose of such laws.
“Admittedly, a mother’s decision to consent to her child’s adoption by a couple to her unknown must be a most difficult one to make. Strong emotional factors militate against it. Once done, misgivings not only may occur, but are probable, and it is not unlikely that attempts to rescind such consent will be made at a time when the child has been placed in an adoptive home, and new attachments formed. The complex psychological problems inherent in situations resulting from the former procedure permitting a natural parent to withdraw a consent at any time prior to actual entry of the order of adoption [citation omitted] with its resulting environmental instabilities for the child, were resolved in recent years by legislative action [citation omitted] making such consent irrevocable in the absence of fraud or duress even in instances where the consenting parent is a minor. This clear expression of public policy may not be restricted by us, and where the evidence indicates no fraud or duress was present, the consent must be held effective.” Peo. ex rel. Drury v. Cath. Home Bureau, 34 Ill. 2d 84, 93-94, 213 N.E.2d 507 (1966).
The change in Kansas law was based on the same considerations. This is not a “breach left by the legislature” as appellant contends, but a purposeful, necessary change. The trial court here carefully scrutinized the evidence, but the law no longer favors revocation by natural mothers. The cases cited by appellant from other jurisdictions which are to the contrary are unpersuasive.
Even though we have the utmost sympathy for the anguish of Anjanette Irons, we have no hesitation in holding appellees sustained their burden of proof. This was a trial to the court. The parties introduced all the evidence they had. The order of events did not affect the result since the court had available to it all the evidence, virtually all of which was uncontested. Thus, the resolution of this controversy was primarily that of weighing the evidence. We think the answer is clear and accordingly hold that Anjanette Irons freely, knowingly and voluntarily gave her consent to the adoption of Baby Boy Irons.
The judgment of the trial court is affirmed.
Holmes and McFarland, JJ., concur in the result. | [
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Per Curiam:
This is an original proceeding in discipline, filed with the Board for Discipline of Attorneys (the Board) by Arno Windscheffel, Disciplinary Administrator, pursuant to Supreme Court Rule 212 (232 Kan. clxvii). On the 29th day of June, 1982, respondent was suspended from the practice of law in Kansas pursuant to Supreme Court Rule 220 (232 Kan. clxxi) with directions that the pending disciplinary proceedings should continue. A panel of the Board, after a hearing, determined that respondent had neglected several legal matters entrusted to him in violation of DR 6-101(A)(3) (232 Kan. clxxxvi), and recommended the respondent be indefinitely suspended from the practice of law. Respondent filed no exceptions to the report of the disciplinary panel.
The Board found that on two occasions the respondent received money on behalf of clients and failed to properly apply the proceeds of those funds to their intended use. At the time of the report of the disciplinary panel on November 8, 1983, respondent had executed a promissory note in one instance and had made no restitution or settlement of the other matter. The panel in its report stated:
“The Respondent, in the months of April and May of 1982; neglected legal matters entrusted to him by clients, in violation of Canon 6-101(A)(3), because of an alcohol problem and because he was suffering from a psychological illness described to the panel as manic-depressive.”
“The panel finds that prior to his illness, all files were in order and that clients’ rights had been protected up until that time.”
While a minority of the members of this court would disbar the respondent, a majority concur in the recommendation of the Board that respondent be indefinitely suspended from the practice of law in the State of Kansas.
It is Therefore Ordered and Adjudged that Larry L. Langdale be and he is hereby indefinitely suspended from the practice of law in the State of Kansas and the costs of this action are assessed to the respondent. | [
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The opinion of the court was delivered by
Miller, J.:
This is an action for sex discrimination in employment brought by Cynthia S. Reber, a former employee, against Mel Falley, Inc. d/b/a Falley’s Market No. 3 (Falley’s). Plaintiff was discharged by the defendant on July 11,1980. A month later she commenced this proceeding before the Kansas Commission on Civil Rights by filing a complaint charging that Falley’s discharged her because of her sex, in violation of K.S.A. 44-1009. The Commission held in favor of plaintiff. After de novo review, the district court found in favor of Falley’s. Plaintiff appeals. The sole issue presented in appellant’s brief is stated as follows:
“Whether the district court failed to apply the correct legal standards to the evidence before it when it determined that Cynthia S. Reber failed to prove by a preponderance of the evidence that Mel Falley, Inc. d/b/a Falley’s Market No. 3 unlawfully discriminated against her on the basis of her sex.”
Before turning to the factual background of this claim, we will first discuss the applicable statute and the primary case construing employment discrimination law. The statute is K.S.A. 44-1009(a)(1), which provides in applicable part that:
“It shall be an unlawful employment practice . . . [f]or an employer, because of the . . . sex ... of any person ... to discharge from employment such person . . . .”
The legal rules applicable in an employment discrimination case such as this are fully discussed and set forth in Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), upon which both parties rely. In that case, the trial judge held that once the employee had established a prima facie case of discrimination, the employer had to show by clear and convincing evidence that its actions were justified or nondiscriminatory. We held that the trial court erred in its ruling on the burden of proof. We said:
“Appellant claims it was error to require it to show by clear and convincing evidence its acts were justified or nondiscriminatory. It cites Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981), a case dealing with Title VII of the Federal Civil Rights Act, 42 U.S.C. 200e et seq. In the opinion Justice Powell wrote for a unanimous court:
“ ‘In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds.in proving the prima facie case, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804.
“ ‘The nature of the burden that shifts to the defendant should be understood in light of the plaintiff s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n. 2 (1978); id., at 29 (Stevens, J., dissenting). . . .
“ ‘The burden of establishing a prima facie case of disparate treatment is not onerous. . . . The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiffs rejection. See Teamsters v. United States, 431 U.S. 324, 358, and n. 44 (1977). . . . Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.
“ ‘The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.
“ ‘The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she had been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 804-05.’
“We note the federal court was careful in Burdine to point out that the ultimate burden of persuading the trier of fact that the respondent intentionally discriminated against the complainant remains at all times with the complainant. The burden of proof never shifts to the respondent. It is the burden of going forward with the evidence that is placed on defendant after plaintiff has established a prima facie case.
“Federal court decisions concerning Title VII are not controlling on this court. Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979). They are persuasive authority, however. McCabe v. Board of Johnson County Comm’rs, 5 Kan. App. 2d 232, 235, 615 P.2d 780 (1980). Especially is this true when they concern general law in the field of civil rights. We accept and embrace the rules stated in Burdine as to burden of proof, prima facie case and burden of going forward with the evidence in discrimination cases.
“The burden of proof in a proceeding under the Kansas Act Against Discrim ¡nation, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.
“The record discloses the complainant’s evidence was determined by the trier of fact to establish a prima facie case of discrimination. At that point in the proceeding the burden of going forward with the evidence shifted to the respondent to introduce evidence of some legitimate, nondiscriminatory reason for respondent’s conduct. We do not reach the question of whether respondent met this burden. To give evidence of some legitimate, nondiscriminatory reason for conduct does not require proof by clear and convincing evidence. The trier of fact erred in imposing such a burden of proof on the respondent.” 231 Kan. at 766-68.
In the case now before us, the trial court in a well-written memorandum decision and order found that the plaintiff had made out a prima facie case of discrimination. We agree. The plaintiff s evidence established that she, a woman, was fired because of her relationship with a male employee, and that he was not so disciplined.
Mrs. Reber first came to work for Falley’s on March 7, 1979, as a checker. At first she worked part-time, but soon began working full-time. Her duties included checking groceries for customers and also ordering and stocking cigarettes, candy and tobacco. As time passed, a relationship developed between Mrs. Reber and Clyde Ghan, the general manager of the market. According to Mrs. Reber, he was only “a good friend.” She testified that other employees became jealous of the relationship and “vicious” rumors began. Plaintiff testified that Mr. Falley told her that he was letting her go “because of this thing between me and Clyde” — that she was “having an affair,” and for that reason was being terminated. Her personnel card showed reason for termination: “Personal — See Mike [Falley].” Mel Falley wrote a letter of recommendation for Mrs. Reber dated July 11, 1980. Among other things, it states:
“Cyndee [Mrs. Reber] gets along fine with the public as well as her fellow employees. She is honest and does her work well. I would recommend her highly.”
Falley’s evidence indicated that as the relationship between Mrs. Reber and Clyde Ghan progressed, Mrs. Reber’s lunch breaks became lengthy. She would take extended work breaks when she was away from her checkstand. These greatly exceeded the usual or customary fifteen-minute breaks. During those breaks she would.visit with Mr. Ghan in the back room, where his desk was located. It was not necessary for her to do her ordering back there; she could list the items needed on a portable ten-key pad, a digital ordering machine, which could be used up front. Her extended absences from her checkstand caused complaints from other checkers and nonmanagerial employees, several of whom testified at the hearing. Ultimately, Mel Falley, Mike Falley, and the grocery manager, Gary Crawford, met and discussed the situation. They determined that Mrs. Reber was not getting along well with the other employees, that she was not doing her job as well as she had in the past, and that she should be terminated. On July 11,1980, Mel Falley met with Mrs. Reber and told her that she was fired. He told her that she was being terminated because of her relationship with Clyde Ghan. He testified that the relationship affected Mrs. Reber’s work, and that her absences from her ordinary work station caused a hardship on the other checkers.
Clyde Ghan, however, was not fired as a result of the relationship. Ghan had been with Falley’s for twenty-three years, had come up through the ranks, and for some fourteen years had served as general manager of Falley’s Market No. 3. He was in charge of overseeing all store operations, purchasing, displays and supplies, accounting for sales proceeds during the day, and hiring and firing employees. During the time Mrs. Reber’s job performance deteriorated, Mr. Ghan continued to do his job and perform his duties well. He was considered a valuable employee. Mr. Ghan was not discharged or reprimanded, but was later told that his job “was in jeopardy.” He resigned from his employment with Falley’s in January 1981, some six months after plaintiff was terminated.
The trial court, in its memorandum opinion, said in part:
“Once the prima facie case is shown it creates a rebuttable presumption of discrimination and therefore, if not rebutted requires a finding for the plaintiff. The nature of the burden of rebuttal is merely one of production, not proof. Lee v. Russell County Board of Education, 684 F.2d 769 ([11th Cir.] 1982). The defendant may discharge this burden by articulating a nondiscriminatory reason for plaintiff s dismissal. In Woods [v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982)], the Kansas Supreme Court made it clear that the defendant need only prove the existence of a nondiscriminatory reason by a preponderance of the evidence and not by the more exacting standard of clear and convincing evidence. . . .
“An adequate rebuttal of the complainant’s prima facie case will not in itself automatically foreclose a finding of respondent’s liability. Ray v. Freeman, 626 F.2d 439 (5th Cir. 1980) cert denied 450 U.S. 997. After respondent has met its burden of going forward with the evidence, the complainant must be given the opportunity to refute the proffered reasons for termination and to show that the reasons given were mere pretext for discriminatory 'conduct. The Complainant may meet this burden by showing the Court that a discriminatory reason more likely motivated the employer or by showing that the proffered reason is unworthy of credence. Woods, supra at 767.
“Falley’s contends that Ms. Reber had the opportunity to demonstrate the reasons given for dismissal were pretexual but that she failed to do so because she did not offer any evidence to rebut the testimony that she was discourteous and unreliable. Falley’s contention is based on its belief that Ms. Reber is required to produce additional evidence to counter the evidence offered to show non-discriminatory motive. Falley’s position is without legal basis. When Falley’s offered a valid business motive to rebut Ms. Reber’s prima facie case, the presumption of discriminatory practice dropped out of the case. However, it is not necessary for Ms. Reber to introduce new evidence to counter the evidence offered by Falley’s. The Court may properly consider the evidence introduced on the prima facie phase to determine whether Falley’s explanations were valid or were mere pretexts for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981).
“After consideration of the record, the Court finds that the Appellee, Ms. Reber, has failed to demonstrate that the Appellant’s preferred reasons were pretextual or to show that a discriminatory reason-more likely motivated the Appellant’s actions. There is no doubt that the relationship between Ms. Reber and Mr. Ghan played a role in Ms. Reber’s dismissal from her job. However, Ms. Reber was not dismissed solely because of her relationship with Mr. Ghan, but was dismissed because the relationship had a detrimental and unacceptable effect on her job performance. Falley’s decision was based on business considerations and not upon impermissible sexual bias. Mel Falley explained that Clyde Ghan was not discharged because he was a trusted employee of twenty-three (23) years and because Mr. Ghan’s job performance was unaffected by his relationship with Ms. Reber. In effect, Falley’s retained an employee who continued to perform his job adequately and discharged an employee who no longer met the requirements and expectations of the position.”
Then, after considering other arguments, the trial court set aside the decision rendered by the K.C.C.R. and entered judgment for Falley’s and against Cynthia S. Reber on her claims.
Plaintiff claims that the trial court did not properly understand and apply the doctrine of the Woods case. A careful reading of the trial court’s memorandum opinion, however, refutes this contention. Woods was carefully considered and properly applied by the court. Falley’s, under Woods, was not required to establish that it acted upon some legitimate, nondiscriminatory reason by clear and convincing evidence. Its burden was merely to establish its case by a preponderance of the evidence. The trial court determined that it had done so. The trial court’s finding is supported by competent, substantial evidence. This was primarily a fact case. The scope of review of an appellate court is to view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the trial court’s finding. In re Sawyer, 234 Kan. 436, Syl. ¶ 1, 672 P.2d 1093 (1983). Viewing the evidence in this manner, we find no error.
Plaintiff also contends that the trial court imposed a higher standard of proof of causation for the firing upon the plaintiff than it did upon Falley’s. We do not so read the record. The trial court properly found that plaintiff established a prima facie case. The court further found that she was not required to offer rebuttal evidence after the close of Falley’s case, but that it could properly consider the evidence introduced on the prima facie phase of the case to determine whether Falley’s explanations were valid or merely a pretext for discrimination. This is eminently correct; the trial court should base its decision upon all of the evidence, regardless of the stage of the proceedings at which it is offered. We find nothing to indicate that the trial court imposed a higher burden of proof upon plaintiff than upon defendant.
Plaintiff argues that the trial court applied a “sole motive” test and required plaintiff to show that her sex was the sole motive for her discharge. In support of this claim, plaintiff cites McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 49 L.Ed.2d 493, 96 S.Ct. 2574 (1976). That case is, however, distinguishable on the facts. Several employees had stolen cargo in transit; those of one race were fired, those of another were not. There was no showing, as here, that some employees neglected their work while others did not, that some were more valuable to the employer, or that there was any basis other than race for different treatment of the employees. The trial court here held that the fact that Mrs. Reber was suspected of “having an affair” — in itself not an activity protected by the Kansas Act Against Discrimination— played a role in her dismissal from her job. That finding, however, is not a finding that she was fired because she is female. The trial court considered all of the evidence, and concluded that “Falley’s decision was based on business considerations and not upon impermissible sexual bias.” It thus found that the decision was not based upon gender; this finding is supported by substantial evidence in the record.
Finally, plaintiff suggests that this is a “mixed motive” case, citing Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L.Ed.2d 471, 97 S.Ct. 568 (1977). In that case, a teacher was discharged for two reasons, one of which was protected by the First Amendment. We do not find that case persuasive here, since the trial court found that the plaintiff s discharge was based upon business considerations and not upon impermissible sexual bias.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Defendant City of Kansas City, Kansas, brings this appeal from the verdict entered in a liability jury trial and the judgment entered in a bench damage trial. Six separate civil actions arising from a single occurrence were consolidated into the two trials. The incident which spawned the litigation was the September 10, 1979, collision between two City of Kansas City-owned fire trucks which were on emergency runs to the same fire. They had been dispatched from different fire stations. The collision occurred at the intersection of Fifth Street and Quindaro Boulevard in Kansas City, Kansas.
Four of the lawsuits were brought by injured firemen employed by the Kansas City, Kansas, Fire Department who were involved in the accident as either drivers of or passengers in one of the two fire trucks. In case No. 80C-12250, the driver of one of the fire trucks, David E. Jackson, sued the City and Thomas G. DeKeyser, the driver of the other fire vehicle. DeKeyser counterclaimed against Jackson. In case No. 80C-13458 Kermit C. Kitchen, Jr., the acting captain in charge of the vehicle driven by DeKeyser sued the City and both drivers, DeKeyser and Jackson. Another fireman, Dan S. Freeman, who was riding on the vehicle driven by Jackson, sued the City and both DeKeyser and Jackson in case No. 81C-00020. In addition, Freeman filed a separate suit, No. 81C-3354, against another fire department employee, Raymond Cox, a dispatcher for the Kansas City, Kansas, Fire Department. (Although it was understood and agreed following discovery and pretrial that counsel for Freeman would seek dismissal of the lawsuit against Cox, no formal journal entry of dismissal has ever been filed in that action; hence its inclusion in this appeal.)
The two other actions were brought by persons who were not city employees who sustained personal injury and/or property damage in the accident. In case No. 80C-11499, Edgar M. Glover sued the City to recover money damages for himself and his wife for injuries sustained by him while stopped in his pickup truck at the intersection at the time of the collision. In case No. 80C-9498, Mr. and Mrs. Earl McCord sued the City to recover for damage to their building located on the corner of the collision intersection.
The jury assessed fault as follows: Jackson — 35 percent; Kitchen — 10 percent; DeKeyser — 35 percent; and City of Kansas City — 20 percent. The trial court ruled the $500,000.00 limit of liability set forth in K.S.A. 1979 Supp. 75-6105 of the Kansas Tort Claims Act (K.S.A. 1983 Supp. 75-6101 et seq.) was equally applicable to governmental entities and their employees and apportioned damages within that limit as follows: Jackson— $87,750.00; DeKeyser — $1,500.00; Kitchen — $119,750.00; Freeman — $203,750.00; Edgar M. and Nellie Glover — $79,750.00; and Earl and Elizabeth J. McCord — $7,500.00.
In its appeal, the defendant City claims error by the trial court in its rulings relative to denial of immunity under the Kansas Tort Claims Act, K.S.A. 1983 Supp. 75-6101 et seq.; certain common law defenses; damages; indemnification; and jury instructions. In their cross-claims, claimants contend the trial court erred in limiting the total damage claim to $500,000.00.
We turn now to the issues.
I. DID THE DISTRICT COURT ERR IN RULING THE CLAIMS OF THE PLAINTIFFS AND COUNTER-CLAIMANTS AGAINST THE CITY AND ITS EMPLOYEES WERE NOT BARRED BY THE PROVISIONS OF THE KANSAS TORT CLAIMS ACT (K.S.A. 1983 SUPP. 75-6101 et seq.)?
Defendant City contends the district court erred in ruling the City and its employees were not immune from suit under the exceptions set forth in sections (a), (c), (d) and (m) of K.S.A. 1983 Supp. 75-6104 of the Kansas Tort Claims Act. Additionally, the City contends the trial court erred in refusing to apply a 1981 amendment to K.S.A. 1979 Supp. 75-6104(f) retrospectively and grant immunity thereunder.
We shall first consider the alleged error predicated upon K.S.A. 1983 Supp. 75-6104(/)(2). This statute, in the form in effect at the time of the collision (K.S.A. 1979 Supp. 75-6104[/]), provided a governmental entity or an employee acting within the scope of his or her employment would not be liable for damages resulting from:
“(f) any claim by an employee of a governmental entity arising from the tortious conduct of another employee of the same governmental entity, if such claim is compensible pursuant to the Kansas workmen’s compensation act.”
It is undisputed the firemen herein were not entitled to workers’ compensation pursuant to the Kansas Workmen’s Compensation Act, K.S.A. 44-501 et seq.
At this point some background information must be provided. In 1975 the Kansas Legislature amended K.S.A. 1974 Supp. 44-505 of the Workmen’s Compensation Act to permit a Firemen’s Relief Association, by a majority vote of its members, to exclude such members from the Act. L. 1975, ch. 259, §§ 1, 2. On July 14, 1975, the Firemen’s Relief Association of Kansas City, Kansas, by a majority vote of its members, elected to exclude its members from the Workmen’s Compensation Act. On January 26, 1979, the Board of City Commissioners of Kansas City, Kansas, permitted the Firemen’s Relief Association to exclude its members from the Act by a formal agreement executed pursuant to K.S.A. 1975 Supp.. 44-505d. Upon the exclusion of the Firemen’s Relief Association members from the provisions of the Workmen’s Compensation Act, an endorsement was added to the City’s workers’ compensation insurance policy removing Firemen’s Relief Association members from its coverage. On September 10, 1979, the date of the collision, the firemen of the Kansas City, Kansas, Fire Department were not covered by workers’ compensation but were subject to the Firemen’s Relief Association of Kansas City.
On February 10, 1981, Senator Jack Steineger, of Kansas City, introduced Senate Bill No. 235. The bill was duly enacted into law and made effective as of July 1, 1981. Senate Bill No. 235 amended K.S.A. 1979 Supp. 75-6104(f) by adding the following emphasized language:
“(f) any claim by an employee of a governmental entity arising from the tortious conduct of another employee of the same governmental entity, if such claim is (1) compensible pursuant to the Kansas workmen’s compensation act or (2) not compensible pursuant to the Kansas workmens compensation act because the injured employee was a firemens relief association member who was exempt from such act pursuant to K.S.A. 44-SOSd at the time the claim arose.” (Emphasis supplied.) L. 1981, ch. 357, § 1.
There can be little doubt but the 1981 amendment to K.S.A. 1979 Supp. 75-6104(f) was prompted by this litigation. Hearing on S.B. 235 before the Senate Judiciary Committee, February 25, 1981 (Statement by Kansas City', Kansas, Assistant City Attorney Peters, p. 3). The City contends the district court erred in not applying this 1981 amendment retrospectively and thereby baring the firemen’s claims herein.
Did the 1981 Kansas Legislature intend K.S.A. 1981 Supp. 75-6104(f)(2) to apply retrospectively to September 10, 1979P Defendant City, without citing a single document in the legislative record, contends the 1981 legislature intended K.S.A. 1981 Supp. 75-6104(f)(2) to reláte back nearly two years to bar this action. An examination of the files of the Senate and House judiciary committees for 1981 reveals no indication that such was the legislative intent of Senate Bill No. 235. Even assuming the legislature had explicitly stated the bill was to relate back, the retrospective application might not be valid. In Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P.2d 998 (1976), this court said:
“The general rule followed in this jurisdiction is that a statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter, and that retrospective application will not be given where vested rights will be impaired. (Johnson v. Warren, 192 Kan. 310, 387 P.2d 213; Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 378 P.2d 80; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P.2d 197; Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P.2d 860, 155 A.L.R. 546.)” 220 Kan. at 568.
In Hendrix v. City of Topeka, 231 Kan. 113, 643 P.2d 129 (1982), this court, in refusing to apply the Kansas Tort Claims Act to an action which occurred before the effective date of the act, declared the court has consistently held that a statute does not operate retrospectively, but only prospectively, unless the intention of the legislature is clearly expressed by the statute that its provisions are to be applied retrospectively. 231 Kan. at 116. In the instant action there is no clear legislative expression K.S.A. 1981 Supp. 75-6104(/)(2) was to be applied retrospectively.
We conclude the trial court did not err in holding the 1981 amendment to K.S.A. 1979 Supp. 75-6104(/) should not be applied retrospectively to bar the firemen’s claims herein.
We turn next to the issue as it relates to K.S.A. 1983 Supp. 75-6104(a) which grants immunity for:
“Legislative functions, including, but not limited to, the adoption or failure to adopt any statute, regulation, ordinance or resolution.”
One of the allegations of negligence against the defendant City was that city employees had not complied with certain regulations and ordinances it had enacted relative to the operation of fire trucks and such noncompliance was a cause of the collision. Nowhere is there any allegation the City was negligent in adopting or failing to adopt any statute, regulation, ordinance or resolution. Illustrative of the type of claim being made herein is the allegation that at least one of the fire trucks was, at the time of the collision, exceeding the maximum 35 m.p.h. speed limit fixed by Fire Department Bulletin No. 176. We do not believe an employee’s compliance or noncompliance with his employing department’s rules and regulations relative to the operation of an emergency vehicle is within the legislative function exception (K.S.A. 1983 Supp. 75-6104[a]) of the Kansas Tort Claims Act.
As we noted in Cook v. City of Topeka, 232 Kan. 334, 654 P.2d 953 (1982), relative to subsection (a):
“Said definition of legislative function is obviously not a blanket exemption of each act of every employee of every state, county, or municipal governmental entity simply because the employing governmental entity may exercise legislative powers.” 232 Kan. at 337.
It is rather farfetched to argue that a fire truck driver operating his vehicle on a fire alarm call is exercising a legislative function within the purview of subsection (a). One commentator on how the Kansas Tort Claims Act affects school districts has provided the following example of a situation where K.S.A. 1983 Supp. 75-6104(c) would seem to be applicable:
“The following hypothetical illustrates the applicability of the exception to school districts. In this hypothetical, school board members meet at a regularly scheduled meeting to discuss a resolution to adopt the requirement that all driver’s education cars carry protective air-bag devices. The resolution fails, the cars are not so equipped, and a student driver is injured in an accident. The parents sue, alleging that no injury would have occurred had airbags been installed, and that the school board’s action in failing to pass the resolution was .therefore the proximate cause of the student’s injury.
“The district should raise section 6104(a) as a defense, which in the example given, would probably be successful since the failure to adopt the particular resolution is a specifically enumerated, legislative function.” Comment, The Kansas Tort Claims Act and School Districts, 28 Kan. L. Rev. 619, 625 (1980).
We conclude the trial court did not err in holding K.S.A. 1983 Supp. 75-6104(a) did not afford immunity to the City or its employees on the claims filed herein.
We turn now to K.S.A. 1983 Supp. 75-6104(c) which grants immunity for:
“enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution.”
The City argues liability predicated upon the failure of one of its employees to abide by a departmental regulation governing physical operation of emergency vehicles is the equivalent of failure to enforce a regulation. We do not agree.
Lantz v. City of Lawrence, 232 Kan. 492, 657 P.2d 539 (1983), discusses K.S.A. 1981 Supp. 75-6104(c). Lantz involved a City of Lawrence weed abatement ordinance. On numerous occasions the City informed Mr. and Mrs. Lantz they were in violation of the ordinance. After unsuccessful attempts to have the Lantzes voluntarily comply with the city ordinance, the City sent a work crew to the Lantz property and removed not only weeds, but, according to plaintiffs, many trees. The City also sent two policemen to assure no breach of the peace. The Lantzes sued alleging negligence and conversion. The City moved for summary judgment under K.S.A. 1981 Supp. 75-6104(c). The district court granted defendant’s summary judgment motion. On appeal this court affirmed in part and reversed in part. As to the two city police officers who had been sent to the Lantz property to assure no breach of peace, this court said the policemen were clearly acting within the scope of their employment in the enforcement of a law under the provisions of K.S.A. 1981 Supp. 75-6104(c). 232 Kan. at 495. As to the city employees who cut down the trees this court held summary judgment was improper because, in drawing all reasonable inferences from plaintiffs’ factual statement, a material issue of fact emerged concerning whether the city employees’ actions of cutting down the trees was within the purview of the city’s weed abatement ordinance. We stated:
“If at trial it is determined the city employees’ actions giving rise to this lawsuit were outside the purview of the ordinance, the exception contained in 75-6104(c), exempting governmental entities from liability where damage results from the enforcement of a law, is inapplicable. K.S.A. 1981 Supp. 75-6103(a) therefore would apply and the city and defendants Osborne and Demby could be held liable if their actions are determined at trial to be negligent or wrongful.” 232 Kan. at 497.
K.S.A. 1983 Supp. 75-6104(c) apparently is designed to preclude an action such as arose in Everly v. City of Gas, 95 Kan. 305, 147 Pac. 1134 (1915). The City of Gas had passed an ordinance which prohibited cattle from running at large. Plaintiff was injured when she was attacked by a vicious cow. Plaintiff sued the City alleging it had been negligent in not enforcing its ordinance. This court rejected plaintiff s claim holding a city was not liable in a civil action for damages for failure of its officers to enforce a governmental ordinance enacted in the interest of public welfare. 95 Kan. 305, Syl. ¶ 1. See also Warden v. City of Wichita, 232 Kan. 838, 841, 658 P.2d 1043 (1983), citing Everly.
Examples of other situations where subsection (c) might be successfully asserted would be: (1) an action against a city for damages to a garden predicated upon a city’s failure to enforce a dog leash law; and (2) an action against a city by an individual arrested for violation of an anti-loitering ordinance based upon the fact the ordinance had later been held to be invalid. This construction is in accord with Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), wherein we stated:
“We construe K.S.A. 1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant’s sole asserted claim of causal negligence is the public entity’s enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would be negligence at common law, and which act or omission causes damage.” 234 Kan. at 568. (Emphasis supplied.)
Obviously, the claim of negligence herein relative to driving at an excessive speed, driving without due regard for the safety of others, etc. would be negligence at common law.
In construing subsection (c) and all other exemptions specified in K.S.A. 1983 Supp. 75-6104, it should be borne in mind the Kansas Tort Claims Act takes an open-ended approach to governmental liability. In other words, liability is the rule while immunity the exception. This approach is consistent with the general principle of law that for negligent or tortious conduct, liability is the rule, immunity the exception. Durflinger v. Artiles, 234 Kan. 484, 501, 673 P.2d 86 (1983); Noel v. Menninger Foundation, 175 Kan. 751, 762, 267 P.2d 934 (1954). K.S.A. 1983 Supp. 75-6103(a) declares:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
K.S.A. 1983 Supp. 75-6104 contains the immunity exceptions to the general rule of governmental liability. In Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P.2d 360 (1964), this court observed ordinarily a strict or narrow interpretation must be applied to statutory exceptions. 194 Kan. at 44. In construing a statute, any doubt should be resolved against the exception, and anyone claiming to be relieved from the statute’s operation must establish it comes within the exception. In other words, the burden is not upon the claimants herein to establish the defendants do not come within one or more of the K.S.A. 1983 Supp. 75-6104 exceptions. Rather, the burden is upon the defendant governmental entity, or defendant employee, to establish governmental immunity under one or more of the exceptions of K.S.A. 1983 Supp. 75-6104. If the party claiming this exception cannot meet this burden, the general rule of liability, in K.S.A. 1983 Supp. 75-6103, governs.
We conclude the district court did not err in holding the defendant City had not met its burden of establishing it and its defendant employees enjoyed immunity for the claims herein under subsection (c) of K.S.A. 1983 Supp. 75-6104.
We turn next to K.S.A. 1983 Supp. 75-6104(d) which grants immunity for:
“any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
Both fire trucks were being operated as emergency vehicles at the time of the collision. Their drivers were therefore subject to K.S.A. 8-1506 which provides:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this article;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions; and
“(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A, 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.”
See also City of Kansas City, Kansas, Code of Ordinances § 36-22 (1964).
In Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983), after discussing the purpose and effect of K.S.A. 8-1506, we concluded:
“K.S.A. 8-1506 grants privileges and immunities to the driver of an emergency vehicle while making an emergency run when such driver is operating his vehicle in compliance with the statute.” Syl. ¶ 2.
“The duty of a driver upon the immediate approach of an authorized emer gency vehicle with activated visual and audible signal devices is to yield the right-of-way by pulling parallel and as close as possible to the right edge or side of the road, clear of any intersection, and remain there until the emergency vehicle has passed.” Syl. ¶ 3.
“The required activation of audible and visual signal devices by an authorized emergency vehicle serves a twofold purpose. Such signals: (1) give a safety warning to other users of the roadway; and (2) assist in clearing a path for the emergency vehicle to travel. In the case of a police vehicle attempting to stop a law violator, such signals serve a third purpose — to advise the violator to stop his vehicle.” Syl. ¶ 4.
“The driver of an emergency vehicle has a right to assume other drivers will obey the law. He is entitled to rely on this assumption until he has knowledge to the contrary.” Syl. ¶ 5.
“The privileges granted by K.S.A. 8-1506 do not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons and does not protect the driver from the consequences of reckless disregard for the safety of others (K.S.A. 8-1506[d]).” Syl. ¶ 6.
“The test of due regard (due care), as applied to the driver of an emergency vehicle, is whether with the privileges and immunities provided by K.S.A. 8-1506 he acted as a reasonably careful driver.” Syl. ¶ 7.
“The duties placed upon the driver of an emergency vehicle by K.S.A. 8-1506(d) relative to driving with due regard for the safety of others applies exclusively to the operation of the emergency vehicle itself.” Syl. ¶ 8.
It is undisputed both fire trucks were operating with activated visual and audible signal devices at the time of the collision. The issue of whether the two drivers had operated their vehicles with due regard for the safety of all persons pursuant to K.S.A. 8-1506 was submitted to the jury. The jury concluded each driver was 35 percent at fault. From that verdict we must assume the jury concluded the drivers had not driven with due regard for the safety of all persons and should not be protected “from the consequences of reckless disregard for the safety of others.” Is the operation of a vehicle under such circumstances to be considered a “discretionary function or duty” under subsection (d) of K.S.A. 1983 Supp. 75-6104? We think not.
In fact, it would be difficult to visualize a situation where just the actual physical operation of a motor vehicle upon the highway would be a “discretionary function or duty” within the meaning of section (d).
The premier case on 75-6104(d) is Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), wherein this court rejected the planning level-operational level test of the Federal Tort Claims Act discretionary function exception, 28 U.S.C. § 2680(c), in favor of the nature and quality of the discretion exercised test In Robertson, this court stated:
“[I]t is the nature and quality of the discretion exercised which should be our focus rather than the status of the employee exercising that discretion.” 231 Kan. at 362.
In reviewing federal decisions, the Robertson court cited Indian Towing Co. v. United States, 350 U.S. 61, 100 L.Ed. 48, 76 S.Ct. 122 (1955), wherein it was alleged the U.S. Coast Guard was negligent in the operation of a lighthouse. In Indian Towing (in the same vein as Bowden v. Kansas City, 69 Kan. 587, 589-90, 77 Pac. 573 [1904] — involving maintenance of a Kansas City fire station), the U.S. Supreme Court held while the Coast Guard may have had discretion in establishing a lighthouse, once it established it, it had a duty to maintain it properly. 350 U.S. at 69. Additionally, the Robertson court was impressed with Downs v. United States, 522 F.2d 990 (6th Cir. 1975), 36 A.L.R. Fed. 219, wherein plaintiffs \yere permitted to maintain a negligence action against the U.S. Government because of a botched hijack-thwarting attempt which resulted in the deaths of three people. In Downs the U.S. Government had promulgated a handbook which contained procedures for responding to hijackings. As procedures had been established, the government agent had no discretion to proceed with a contrary plan and, therefore, the discretionary function exception was not applicable. In Downs the Sixth Circuit Court of Appeals observed:
“We recognize that the agent was called upon to use judgment in dealing with the hijacking. Judgment is exercised in almost every human endeavor. It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees. Driving an automobile was frequently cited in the congressional reports leading to the Act as an example of ‘non-discretionary’ activity which would be outside the discretionary function exception.” 522 F.2d at 995. (Emphasis supplied.)
Plaintiffs contend while K.S.A. 1983 Supp. 75-6104(d) might have provided defendant City immunity for how and what policies, regulations, and ordinances it may enact in governing its fire department, once such policies, regulations and ordinances were promulgated, the City no longer had discretion on whether to adhere to them. Consequently, if a fire department bulletin said the maximum speed limit of fire department vehicles was 35 m.p.h., the City was negligent and liable if a truck exceeded that limit and, in so doing, injured persons or property.
We must agree that disregard of the requirements of K.S.A. 8-1506 as well as departmental policies and regulations are not within the discretionary function or duty exception of K.S.A. 1983 Supp. 75-6104(d). We conclude the district court did not err in holding the defendant City had not met its burden of establishing it and its defendant employees enjoyed immunity for the claims herein under K.S.A. 1983 Supp. 75-6104(d).
We turn next to K.S.A. 1983 Supp. 75-6104(m) which grants immunity for:
“failure to provide, or the method of providing, police or fire protection.”
Defendant City argues K.S.A. 1983 Supp. 75-6104(m) grants governmental entities absolute immunity from civil actions alleging the government failed to provide fire protection or the method by which the government provided fire protection was negligent. The City asserts that under subsection (m) the sole fact the incident herein occurred while two city fire trucks were responding to a fire alarm operates as a complete bar to claimants’ actions. In reply, claimants argue subsection (m) should not be read so broadly but rather be limited to such situations as how a city fire crew fights a fire or how many fire trucks are dispatched on an alarm. The claimants’ construction of K.S.A. 1983 Supp. 75-6104(m) appears to be consistent with Kansas and foreign case law.
K.S.A. 1983 Supp. 75-6104(m) is identical to a provision in Oklahoma’s tort claims act, Okla. Stat. Ann. tit. 51 § 155(6) (West 1983 Supp.). Recently, in Shockey v. City of Oklahoma City, 632 P.2d 406 (Okla. 1981), the Oklahoma Supreme Court applied Oklahoma’s method of fire protection governmental immunity subsection to a case where homeowners alleged the fire loss of their house had occurred because of the absence of water from the fire hydrant serving their area. Specifically, plaintiffs alleged the city had negligently failed to maintain properly the fire hydrant or to warn plaintiffs of its nonoperational and defective state. Finally, plaintiffs asserted the city had been negligent in failing to provide back-up equipment in case its fire hydrant failed to operate properly. 632 P.2d at 407. In applying Oklahoma’s method of fire protection governmental immunity subsection, the Oklahoma Supreme Court initially observed the general rule was the operation and maintenance of a fire department by a municipal corporation was the exercise of a govern mental function so as to accord the municipality sovereign immunity from liability when acting in such capacity. Specifically, the court’s rationale was:
“Under § 155(6) appellee is exempted from liability for failure to provide, or the method it employs in providing, fire protection. Fire hydrants, as such, are a part of the physical structure of the fire department and their maintenance, including an adequate supply of water, and their repair are incidental to the operation of the fire department. The fire hydrants were installed for the purpose of fire protection. Although appellants’ damages may have resulted from a failure of the water service, supplying water to the fire hydrants was just a part of appellee’s overall operation in providing fire protection. Assuming, arguendo, appellee negligently failed to employ the proper methods in checking its water service for the proper operation of its fire hydrants, § 155(6) clearly exempts it from liability.” 632 P.2d at 408.
Kansas case law before the enactment of the tort claims act is consistent with Shockey and suggests how methods of providing fire protection under K.S.A. 1983 Supp. 75-6104(m) should be construed. In Cross v. City of Kansas City, 230 Kan. 545, 638 P.2d 933 (1982), this court dealt with an appeal from a summary judgment for defendant City of Kansas City. Like in Shockey, the plaintiffs in Cross alleged the proximate cause of their loss (fire destruction of a lumber yard) was inadequate water supply caused by the negligence of the city in failing to manage, repair, inspect and maintain properly the city water system. 230 Kan. at 546. In Cross the former distinction of governmental versus proprietary functions was applicable to determine whether the city was answerable. Quoting from authority, this court declared the prevailing view was a municipality was not liable for failure to supply water for fire protection. 230 Kan. at 548. Similarly, a municipality was not liable for failure to. provide adequate fire protection. 230 Kan. at 548. In Cross this court held when a city supplied water for fire fighting it was engaged in a governmental capacity and therefore enjoyed governmental immunity. 230 Kan. at 549. See Annot., Liability of Municipality for Damage to Person or Property Due to Hydrant, 113 A.L.R. 661.
In Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275 (1949), plaintiff alleged the city had been negligent in failing to extinguish a fire and by its negligence had created an attractive nuisance whereby a child had been injured. In Rhodes an old dug-out basement containing sawdust and debris, collected over years, caught fire. Twice city fire crews were dispatched to extinguish a fire in the old basement and both times the fire crews failed to extinguish the fire completely — though they believed they had. After the second fire-fighting endeavor plaintiff s child wandered into the basement and was severely burned when his right foot and leg sank down into the debris and into hot burning coals and embers beneath the surface. 167 Kan. at 720. In rejecting plaintiffs claim there was an attractive nuisance litigable against the city, this court commented the city’s fault, if any, consisted in the failure to use the requisite care in remedying a condition otherwise created or occurring. Additionally:
“The negligence of the city, if any, was its failure to put out the fire, for which it is not liable. (38 Am. Jur. 327, Municipal Corporations, § 626.)” 167 Kan. at 722-23.
We believe subsection (to) is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. We do not believe subsection (to) is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to the wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.
We conclude the district court did not err in holding the City had not met its burden of establishing that it and its defendant employees had immunity for the claims herein under subsection (to) of K.S.A. 1983 Supp. 75-6104.
Summarizing the entire Kansas Tort Claims Act issue herein, we conclude the district court did not err in holding the defendant City and its defendant employees were not immune from liability on any of the asserted grounds. See generally Note, Governmental Liability: The Kansas Tort Claims Act [or the King Can Do Wrong], 19 Washburn L. J. 260 (1980).
II. DID THE DISTRICT COURT ERR IN ITS INTERPRETATION AND APPLICATION OF THE COM MON LAW DEFENSES OF ASSUMPTION OF RISK, JOINT ENTERPRISE, AND FELLOW SERVANT?
Although previously mentioned, for emphasis, we repeat the fact the claimant firemen herein were not covered by workers’ compensation.
For simplicity we shall break this issue down into its component parts and discuss each separately.
(a) Did the district court err in failing to rule, as a matter of law, the firemen, by their employment, had assumed the risk of being injured while riding upon the fire trucks?
In Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960), this court provided an extensive commentary on assumption of risk in Kansas which included the following:
“Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee or servant agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee or servant. (56 C.J.S., Master and Servant, § 357, pp. 1148, 1149.)
“In Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, it was said:
“ ‘. . . But, reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, or of the existence of which he is not chargeable with notice.’ (p. 88.)
“The foregoing language was quoted with approval and applied in Parker v. City of Wichita, 150 Kan. 249, 92 P.2d 86. It was also quoted in Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042.
“It has been said that one who, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. (Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883; and Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P.2d 692.)” 187 Kan. at 444.
Defendant City contends all four claimant firemen assumed the risk they could be injured in a traffic accident as an incident of their employment. Specifically, the City argues it was an ordinary and incidental part of a firefighter’s employment that in the course of duty he would be transported from a fire station to the location of a fire. Further, it was an ordinary and incidental part of that employment the transportation would be by an emergency vehicle. Finally, “[t]he risk of an accident or a collision is one assumed by every driver and every passenger of a motor vehicle, including an emergency vehicle.”
In Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977), this court quoted from Blackmore v. Auer, 187 Kan. 434, in declaring:
“ ‘The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it. Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein.’ (pp. 444, 445.)” 221 Kan. at 501.
In Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P.2d 535 (1969), this court noted the doctrine was not viable where the risks resulted from the master’s negligence. 204 Kan. at 190.
The trial court refused to rule, as a matter of law, the risk of collision between the two fire trucks was a risk assumed by the claimant firemen in their employment. The City contends this was error. We do not agree. The firemen herein contended the City itself was negligent in a number of respects. In fact, the following special questions and answers were part of the verdict:
“5. Do you find that at the time and place in question the City of Kansas City, Kansas exposed its firemen in the discharge of their duties to perils and dangers which the city could have guarded against by the exercise of reasonable care?
Yes
(Yes or No)
“7. Do you find that any of the following firemen assumed any inherent risks of employment, which were known to or which by the exercise of reasonable care should have been known to the firemen, at the time and place in question, against which the city could not have guarded by the exercise of reasonable care?
David Jackson No
(Yes or No)
Kermit Kitchen No
(Yes or No)
Dan Freeman No
(Yes or No)
Thomas DeKeyser No
(Yes or No)
“8. At the time and place in question, do you find that any of the following firemen assumed an unusual but obvious risk which an ordinary prudent man could appreciate and understand?
David Jackson No
(Yes or No)
Kermit Kitchen No
(Yes or No)
Dan Freeman No
(Yes or No)
Thomas DeKeyser No
(Yes or No)”
A collision between two fire trucks on emergency runs is, fortunately, a rare occurrence. We do not'believe such a collision could be considered, as a matter of law, a usual risk of a fireman’s employment. See generally Annot., Liability for Personal Injury or Damage from Operation of Fire Department Vehicle, 82 A.L.R.2d 312. Additionally, serious allegations were being made (and later established to the jury’s satisfaction) of the City’s own negligence. We conclude the trial court did not err in refusing to rule, as a matter of law, the firemen had assumed the risk herein involved.
(b) Did the district court err in failing to rule, as a matter of law, plaintiffs Jackson and Kitchen were engaged in a joint enterprise when they rode in the No. 5 fire truck on September 10, 1979?
In Scott v. McGaugh, 211 Kan. 323, 506 P.2d 1155 (1973), this court was confronted by a case in which plaintiff, Mr. Scott, was riding in an automobile driven by one Mr. McClure, at the time of an intersection collision with a vehicle operated by defendant McGaugh. At trial Mr. McGaugh contended Messrs. Scott and McClure were engaged in a joint enterprise at the time of the accident and consequently, the negligence of Mr. McClure was imputable to Mr. Scott and precluded him from recovering from the defendant. The trial court agreed with defendant McGaugh and ruled, as a matter of law, Messrs. Scott and McClure were engaged in a joint enterprise. After making its ruling of law the trial court instructed the jury any negligence of Mr. McClure should be imputed to plaintiff Scott.
Messrs. Scott and McClure had been employed by the same insurance company as trainee salesmen. The company en couraged its employees to work in pairs. Occasionally, before tbe accident, Messrs. Scott and McClure had worked together. Sometimes they had driven Mr. Scott’s car, while at other times Mr. McClure’s vehicle was used. One day both Mr. Scott and Mr. McClure had appeared at the company’s office to collect a list of prospective customers. At that time they decided to join forces for the day and approach customers together. For no other reason than Mr. McClure’s automobile was closer, Messrs. Scott and McClure entered the latter’s car and embarked on their work. While driving to a customer’s residence, they were involved in a collision with Mr. McGaugh.
In Scott this court observed joint enterprise, or joint adventure, came within the imputed negligence concept of tort law. 211 Kan. at 326. While, as a general proposition imputed negligence would bar a plaintiff s recovery, this court also commented the legal fiction which had given rise to imputable negligence had been criticized and had found small favor with the courts. 211 Kan. at 327. In Kansas, the court declared, joint enterprise liability must arise by reason of a contract, agreement or understanding between the parties and such agreement or understanding could be either expressed or implied. 211 Kan. at 327. Following earlier authority the court enunciated the necessary elements of joint enterprise. First, there must be an agreement; second, a common purpose; third, a community of interest; and, fourth, an equal right to a voice, accompanied by an equal right of control over the instrumentality. 211 Kan. at 327. Concerning the right to control, the court said it was an essential element which must be present by agreement if vicarious liability were to be imposed upon a passenger under a theory of agency between joint adventurers. 211 Kan. at 328. Where no express agreement for mutual right of control was present, an agreement could be implied if the facts and circumstances would support such an understanding. 211 Kan. at 328.
In Scott the court reviewed a number of cases where joint enterprise had been alleged but not found. The court then summarized.
“We have been unable to find a case with a factual situation identical to our present case. It is noteworthy that in our research we have failed to find any alleged joint enterprise case in which this court has held a trial court was justified under the evidence in imposing vicarious liability upon the passenger as a matter of law. In the future there may arise such a case but instances, no doubt, will be rare in the absence of an express agreement for mutual ‘right of control’.” 211 Kan. at 329. (Emphasis supplied.)
The court then commented in several prior cases it had held the right to control was a jury question. 211 Kan. at 329. One of these was Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980 (1971), cited as an example of a situation where the facts of a joint enterprise were compelling, but the issue of whether such an enterprise existed was for the jury. In Kelty the driver and passenger, husband and wife, worked together in a paperhanging business. The accounts and records of the business were jointly kept. The income from their mutual efforts went into a joint account and joint income tax returns were filed. Additionally, the truck they were riding in at the time of the collision was jointly titled in both their names. Even in this strong factual situation this court ruled joint enterprise had not been established as a matter of law. 206 Kan. at 660.
Speaking of the driver and passenger in Scott this court observed any common purpose or community of interest between them was entirely dependent upon their employment and that, further, their community of interest did not exist separate and apart from their employment. 211 Kan. at 330.
The court in Scott also observed:
“Although a plaintiff passenger and a driver of an automobile are co-workers or fellow employees of a common employer and both are acting in the course of and in the furtherance of the business this alone does not make them participants in a joint enterprise which will impose vicarious liability under the ‘right of control’ test; and this is true irrespective of whether the vehicle is owned by the employer, the fellow driver or by the plaintiff himself.” 211 Kan. at 330.
See also Restatement (Second) of Torts § 491, comment/(1965).
In Spellman v. Street Railway Co., 87 Kan. 415, 124 Pac. 363 (1912) (also arising from Kansas City), this court dealt with an action where plaintiffs, a driver and his captain who were riding upon a horse-drawn fire vehicle responding to an alarm, were involved in a collision with a street rail car. In defense the railway company suggested the alleged negligence of the driver should be imputed to his superior officer, the captain. 87 Kan. at 417. In rejecting this contention and affirming judgment for plaintiffs, this court said:
“[T]he testimony shows that the captain could not control and did not attempt to control the action of the driver who had the one present imperative duty to perform of so handling his team as to reach the scene of the supposed fire. Even had the testimony shown the driver to have been negligent, such negligence would not necessarily have been imputable to the plaintiff.” 87 Kan. at 417. (Emphasis supplied.)
We conclude the district court did not err in refusing to rule that, as a matter of law, Kitchen and Jackson were engaged in a joint enterprise.
(c) Was the district court’s instruction on joint enterprise erroneous?
In Instruction No. 18 the district court charged the jury on the defendant City’s theory plaintiffs Jackson and Kitchen were engaged in a joint enterprise at the time of the collision and the negligence of plaintiff Jackson, if any, was chargeable to plaintiff Kitchen. Instruction No. 18 stated:
"Inasmuch as the defendant city has claimed the defense of joint enterprise in this case, you must decide if plaintiff Kermit Kitchen is chargeable with the negligence, if any, of plaintiff David Jackson.
“Plaintiff Kitchen is chargeable with any negligence of Jackson if you find that Jackson and Kitchen were operating the vehicle as a joint enterprise.
“To constitute a joint enterprise which will impose vicarious liability the following four elements must be established before the relationship of the parties will give rise to an application of imputed negligence: There must be
“(a) An agreement, express or implied, between the driver and passenger;
“(b) A common purpose;
“(c) A community of pecuniary interest in that purpose;
“(d) An equal right to a voice, accompanied by an equal right of control over the vehicle.”
Defendant City’s requested instruction was modeled on PIK Civ. 2d 8.92, 8.93 and stated:
“If David Jackson and Thomas DeKeyser were each negligent and the negligence of each contributed to the injury to the plaintiff, Kermit Kitchen, then you must decide whether plaintiff Kitchen, is chargeable with the negligence of David Jackson.
“Plaintiff Kitchen is chargeable' with the negligence of David Jackson, if you find that Jackson and Kitchen were operating the vehicle as a joint enterprise.
“A joint enterprise between a passenger and a driver occurs where there is a common purpose for which they jointly use and occupy the vehicle so as to give each the equal privilege and right to control and manage its operation. The meaning of the [word] ‘control’ is not necessarily limited to participation in the manual operation of the vehicle; it also includes any situation where there is an understanding between the parties that the passenger has the right, and is possessed of equal authority with the driver, to prescribe conditions of use and operation of the vehicle.” (Emphasis supplied.)
Defendant City contends the failure of the district court to give the City’s joint enterprise instruction, particularly as to the meaning of the word “control” (emphasized above), constitutes reversible error.
The four elements necessary to sustain a defense of joint enterprise set forth in Instruction No. 18 were taken almost verbatim from Scott v. McGaugh, 211 Kan. at 327. Additionally, the comment following PIK Civ. 2d 8.93, which defendant City relied upon for its proposed joint enterprise instruction, discussed Scott and also listed the four elements set forth in that opinion.
We conclude Instruction No. 18 adequately stated the applicable law and cannot, therefore, be the basis for a claim of reversible error.
(d) Did the district court err in failing to rule, as a matter of law, the firemens’ actions were barred by the fellow servant doctrine?
Defendant City contends the fellow servant doctrine barred these actions by the firemen and the district court erred in not finding as a matter of law the firemens’ claims were barred by the doctrine.
The rule an employer is not liable for injuries caused solely by the negligence of a fellow servant first appeared in England in Priestly v. Fowler, 3 M. & W. 1, 150 Eng. Rep. 1030 (1837). The doctrine rapidly found favor in America. Farwell v. Boston and Worcester Rail Road Corporation, 45 Mass. (4 Met.) 49 (1842). Prosser, Law of Torts § 80 (4th ed. 1971), has commented:
“Although [fellow servant] has been assailed as a direct departure from the established rule of vicarious liability for the torts of servants within the scope of their employment, it probably should be regarded as an inherent limitation upon that rule itself, which seems to have been conceived as an obligation of the head of the household to those who were not his servants. The reasons usually assigned for it, however, were that the plaintiff upon entering the employment assumed the risk of negligence on the part of his fellow servants, and the master did not undertake to protect him against it; that he was as likely to know of their deficiencies and to be in a position to guard against them as his employer; and that it would promote the safety of the public and of all servants to make each one watchful of the conduct of others for his own protection.” pp. 528-29.
According to Prosser after the general rule was declared a number of restrictions were developed when the harshness of the rule imposed upon labor became apparent. Prosser, Law of Torts § 80, p. 529. One commentator on the fellow servant rule has observed it is a creature of common law and has characterized it as one of the “unholy trinity of common law defenses,” the other two being contributory negligence and assumption of risk. Comment, Torts — Fellow Servant Rule, 9 Washburn L. J. 488 (1970). The same commentator has continued:
“The Kansas fellow servant rule was well stated in the recent case of Hacker v. Brookover Feed Yard, Inc. [, 202 Kan. 582, 451 P.2d 506 (1969)]:
“ ‘The essence of the fellow-servant rule is that, ordinarily, an employer is not liable to an employee for injuries due solely to negligence on the part of his co-employees who are engaged with him in the common work of their common employer.’
Therefore, before the fellow servant rule may be utilized, two prerequisites have to be met: First, the employees must be employed by a common employer; secondly, the injury must be caused by the negligence of a coemployee.” 9 Washburn L. J. at 488-89.
Further:
“The basic justification for this rule is that through the contract of employment, an employee has assumed all the risks incident to his employment, and should foresee that the negligence of his coemployees might result in injury to him. However, before the employee assumes the risks of his employment as a matter of law, a duty rests upon the employer not to expose his employees to risks which the employee cannot reasonably guard against. Therefore, the employer is obligated to provide his employees with a safe place to work, suitable machines and tools, reasonably safe materials, and suitable coemployees. Also, the duty to warn of hazardous conditions which an employee may encounter within the scope of his employment is placed upon the employer. It is not until after the employer has discharged all of his duties does the law place upon the employee the assumption of risks incident to the performance of his employment, including the risks from the possible negligence of his fellow servants. The employee is entitled to assume that his employer has properly performed his duties upon entering employment.
“Since the common law has placed specific duties upon the employer, he cannot escape liability by delegation of those duties to an employee. If the employee is negligent in the performance of these duties, the employer will be held liable to the same extent as though he himself had been guilty of the negligence.” 9 Washburn L. J. at 489-90.
PIK Civ. 2d 7.25-7.27.
In Roda v. Williams, 195 Kan. 507, 407 P.2d 471 (1965), this Court observed at common law fellow employees mutually owed to each other the duty of exercising ordinary care and each was liable for a failure in that respect which resulted in injury to a fellow employee. 195 Kan. 507, Syl. ¶ 1. In Schwarzchild v. Weeks, 72 Kan. 190, 83 Pac. 406 (1905), the court declared in order for a master to claim exemption from liability for injuries to a servant, the master must have exercised reasonable care to prevent the injury. Further, the risk the master may neglect to do this is not one the servant assumes. 72 Kan. at 195.
This is not the first time the City of Kansas City has asked this court to hold a lower court erred in not determining firemen riding together on a fire department vehicle in response to a fire alarm were fellow servants. In Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123 (1899), this court held the city’s claim a fireman’s death was caused by the negligence of a fellow servant in the operation of a fire department vehicle was untenable. 60 Kan. at 488. Succinctly this court announced the firemen had not been fellow servants. 60 Kan. at 488. Additionally, the court found no error in the trial court declining to charge the jury with defendant city’s requested fellow servant instruction, holding:
“We have examined the instructions tendered by the city and refused by the court, and see no error in their refusal. The court instructed that McDonald was not in any manner responsible for any negligence of Clarke, the captain of the truck. They were not fellow-servants. (1 Beach, Pub. Corp., §§ 741-744; 2 Dillon, Mun. Corp. 977-980; Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490.)” 60 Kan. at 488. (Emphasis supplied.)
See also Restatement (Second) of Torts § 491, comment/(1965); and Scott v. McGaugh, 211 Kan. at 330.
We conclude the district court did not err in failing to hold, as a matter of law, any of the firemen were fellow servants. Additionally, the lower court committed no error in failing to charge the jury upon the fellow servant doctrine.
(e) Has the adoption of comparative fault (K.S.A. 60-258a) abolished the common law defense of assumption of risk?
The defendant City contends the claims against it by the firemen are barred by the common law defense of assumption of risk. The firemen contend the adoption of comparative fault has abolished this common law defense.
The status of the defense of assumption of risk after introduction of comparative fault has presented a thorny problem for a number of jurisdictions. A good summary of the case law in this area is set forth at Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R. 4th 700. In this annotation states are categorized by the result reached on this issue. One commentator in the field has categorized states, at least in part, on a statutory basis, i.e. whether comparative negligence was judicially or statutorily imposed, whether assumption of risk was statutorily or judicially merged or abolished, etc. Woods, The Negligence Case: Comparative Fault §§ 6:1-6:11, pp. 111-58 (1978).
A review of the case law in the area reveals that, in the absence of express statutory direction as to the status of assumption of risk after the introduction of comparative negligence, judicial determination of the issue is heavily influenced by how the defense of assumption of risk was construed and applied prior to the introduction of comparative negligence in the particular jurisdiction. A review of Kansas case law relative to assumption of risk before the 1974 introduction of comparative fault (K.S.A. 60-258a) is appropriate.
Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977), contains a good summary of Kansas law . on assumption of risk. Although decided after the introduction of comparative fault (1974), the cause of action arose prior thereto (1971). This court stated:
“The doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P.2d 1062. We turn first to our recent decisions in master-servant cases involving the doctrine. Mechtley v. Price, 217 Kan. 344, 536 P.2d 1385, was an action by a farm employee against his employers to recover for personal injuries when an unshod horse he was riding stumbled and fell. We there said:
“ ‘. . . Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee (Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765). Assumption of risk generally bars recovery by an employee who knows of the danger in a situation but nevertheless voluntarily exposes himself to that danger. In Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 63 A.L.R.2d 175, we said:
“ ‘ . . [Assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is ventureousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.” (p. 594.)
“ ‘It should be noted the knowledge and appreciation of the risk involved is to be judged by a subjective standard, by knowledge attributable to the individual plaintiff and his situation (Prosser, Law of Torts, 4th ed., 1971, § 68, p. 447).’ (p. 348.)
“However, we should note that Prosser goes on to say that:
“ ‘. . . [A] purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not differ greatly from that of the reasonable man. The plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. . . .’ Prosser, Law of Torts, 4th ed., 1971, § 68, p. 448.
“Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321, was an action by a farm hand against his employer to recover damages for the loss of an eye. The injury occurred while the parties were filling a silo. We said:
“ *. . . The employer is not to be held liable for an injury to an employee simply because of danger which was inherent in the employment, whether in the place of employment or the cause of the danger inherent in the tools, machinery or appliances with which the work must be performed. A master is not an insurer against injuries which his servants may incur in the discharge of their duties. . . .
“ ‘There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. . . .
“ ‘Generally an employer will not be held liable if he . . . conducts his business in a manner conforming to the usage of others engaged in the same business under similar circumstances. See, e.g., . . . Blackmore v. Auer, 187 Kan. 434, 442, 357 P.2d 765.
“ ‘Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk. In 35 Am. Jur., Master and Servant, § 299, pp. 722, 723, in considering the risk assumed, the rule is stated thus:
“The injuries for which an employee is barred from recovery by virtue of the doctrine of assumption of risk include but, according to the general accepted statement, do not extend beyond those which result from the ‘ordinary’ risks of the employment or such as are ‘incident’ thereto. An assumption of risk merely by virtue of the contract of employment embraces such perils, hazards, and dangers as are ordinarily and normally incident to or a part of the employment in question and of which the employee has knowledge, actual or implied, or of which it may be said that he is presumed to know. Under the head of ‘ordinary risks’ are classed all those dangers or perils ordinarily incident to the conduct of the particular business in which the employee engages — those which exist after the employer has done everything that he is bound to do for the purpose of securing the safety of his employees. The term includes not merely those dangers which are obvious and open, but also those risks which, while not visible, are nevertheless a natural incident of the employment. The employee does not, however, merely by accepting employment, assume the risks which are not usually and ordinarily incident to that employment. As thus restricted, the doctrine rests on the thought that the employee, upon entering the employment of the master, assumes all the risks that are ordinarily and usually incident to the service upon which he enters, and if he is injured solely by reason of these perils he is not entitled to recover.....” ’
“ ‘The doctrine of assumption of risk rests for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for injuries resulting from his employment. This court has stated that to raise an implied agreement the risk assumed must be known to the employee, or it must be of such a nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. One, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, who freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. . . (pp. 71-73.)
“In Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765, where a farm laborer was injured while loading baled hay, we said:
“ ‘The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it. Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein.’ (pp. 444, 445.)” 221 Kan. at 499-501.
In discussing the common law defense of fellow servant, which is a subspecie of assumption of risk, this court in Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042 (1960), stated;
“For the master to claim exemption from liabilities for injuries to a servant on the ground that the negligent act was that of a fellow servant, the master must have exercised reasonable care to prevent the injury. The risk that the master may be negligent in performing his duty is not one that the servant assumes.
“A duty rests upon the master not to expose the servant, in the discharge of his duty, to perils and dangers against which the master may guard by the exercise of reasonable care. These duties are: (1) To provide safe and suitable machinery and appliances for the business, including a safe place to work. This includes the exercise of reasonable care in furnishing such appliances, and the exercise of like care in keeping the same in repair and in making proper inspections and test's. (2) To exercise like care in providing and retaining sufficient and suitable servants for the business, and instructing those who, from newness or age, evidently need it. (3) To establish proper rules and regulations for the service, and, having adopted such, to conform to them. (Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406.)
“The rule, on the assumption of risk under the fellow-servant doctrine, quoted in Bridge Co. v. Miller, [71 Kan. 13, 80 Pac. 18 (1905)], was stated by Mr. Justice Valentine in A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, in the following luminous way:
“ ‘. . . In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow-servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coemploye’s . . .’ (p. 644.)”
“Upon the authorities in this jurisdiction the servant, in the contract of employment, assumes all the ordinary risks of the employment. In the exercise of ordinary care he must foresee that the negligence of those with whom he works may result in injury to him. Danger from that source is one of the ordinary incidents of the service, and so far as it fairly may be anticipated it is assumed. (Bridge Co. v. Miller, supra, and authorities cited therein.)
“In an action by a servant against the master for negligence, where the negligent act is in violation of a positive duty which the master owes to the servant, that becomes the controlling fact in determining the master’s liability; and where the negligence of the master is the proximate cause of the injury the master will be held liable, notwithstanding the negligence of the master may have been set in operation by the act of one who otherwise might be held to be a fellow servant. In such situation the fellow-servant doctrine is not involved. (Schwarzschild v. Weeks, supra.)” 186 Kan. at 796-97.
PIK Civ. 2d 7.20, 7.21, 7.22 and 7.23 state the jury instructions applicable to assumption of risk.
It should be emphasized, in Kansas the defense of assumption of risk is limited to cases involving the master-servant relationship (Borth v. Borth, 221 Kan. at 499; Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P.2d 1062 [1973]). Further, the defense of assumption of risk is not available where the injury received is subject to the Workmen’s Compensation Act. See K.S.A. 44-545. As shown by the cases heretofore cited the employer must, in essence, be negligence free as a condition to the successful assertion of the defense of assumption of risk. Therefore, when assumption of risk has been established there is no negligence to be compared between the employer and the injured employee.
In George v. Beggs, 1 Kan. App. 2d 356, 564 P.2d 593, rev. denied 225 Kan. 844 (1977), the Court of Appeals held assumption of risk constituted a total bar to recovery even after the enactment of K.S.A. 60-258a. In so holding the court stated:
“Plaintiff also argues that, because of the comparative negligence statute, assumption of risk should no longer be considered a complete bar to recovery. He suggests that assumption of risk is an outmoded and unfair doctrine, especially so when contributory negligence is no longer an absolute bar to recovery.
“The doctrine of assumption of risk was considered and applied by our supreme court as recently as March 5, 1977, in the case of Borth v. Borth, 221 Kan. 494, 561 P.2d 408, wherein it was stated:
“ ‘The doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. . . (p. 499.)
We note that the Borth case dealt with the circumstances of an accident which occurred in 1971, prior to the enactment of our comparative negligence statute, K.S.A. 60-258a, which provides that the contributory negligence of a party in a civil action is not a complete bar to recovery for damages for negligence resulting in personal injuries. However, our court has consistently drawn a distinction between the doctrine of assumption of risk and contributory negligence, the latter not necessarily being an element in injuries sustained in employment where the assumption of risk doctrine is applicable. (See Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227; Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062.) Assumption of risk and contributory negligence being separate and distinct concepts in this state, the former remains a complete bar to recovery in cases such as here involved.” 1 Kan. App. 2d at 358-59. (Emphasis supplied.)
The result reached by the Court of Appeals in George is buttressed by K.S.A. 60-208(c) relative to pleading affirmative defenses. The statute provides:
“Affirmative defenses. In pleading to a preceding pleading a party shall set forth affirmative accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
In 1976, two years after the adoption of comparative negligence (1974), the Kansas Legislature amended K.S.A. 60-208(c) to add res judicata as an affirmative defense. The statute was thus brought to the legislature’s attention in 1976 but neither assumption of risk nor fellow servant was deleted therefrom. If the legislature had intended the defenses be abolished by the adoption of comparative fault, it clearly had the opportunity in 1976 to do so statutorily.
We conclude, that in its very restricted periphery of application, the common law defense of assumption of risk remains viable and continues to constitute an absolute bar to recovery by an injured employee.
III. DID THE DISTRICT COURT ERR IN FAILING TO SUBMIT PLAINTIFF DAN FREEMAN’S NAME TO THE JURY FOR PURPOSES OF COMPARATIVE FAULT DETERMINATION?
At the time of the collision, Fireman Dan Freeman was riding on the rear platform of No. 5 fire truck. The vehicle was being driven by David Jackson. Also on board was Acting Captain Kermit Kitchen. The force of the impact hurled Fireman Freeman approximately 80 feet from the vehicle and he received severe injuries as a result thereof. Fireman Freeman was a passenger on the No. 5 truck with no control over its operation.
Apparently Fireman Freeman had the option under the applicable departmental regulations to ride either on the platform or in a jump seat behind the driver’s cab. The City contends the election of Fireman Freeman to ride on the platform contributed to his injuries and that the issue of his comparative fault should have been submitted to the jury. In support of this proposition the City states:
“[T]he Court . . . precluded the City from putting before the jury its evidence that Exhibit No. 69, which was Department bulletin 627, relating to the option of firefighters to ride on jump seat as opposed to the rear end of the rig, was adopted as a safety measure at the request of the firefighters’ union .... The City suggests that such evidence was relevant to the issue of whether Freeman, who opted to ride on the rear, bore some fault for the extent of his injuries.”
The City, however, has not seen fit to include Exhibit No. 69 in the record on appeal and we, therefore, cannot consider the same. As noted in State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981):
“An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.” Syl. ¶ 6.
There is no showing Fireman Freeman violated departmental regulations in riding on the platform rather than in the jump seat. We conclude the trial court did not err in refusing to submit Fireman Freeman’s name to the jury for purposes of comparing fault.
IV. WERE THE DAMAGE AWARDS EXCESSIVE?
Liability issues were determined by the jury while the amount of damages the respective litigants were entitled to was determined in a subsequent bench trial. The trial court held, by virtue of K.S.A. 1979 Supp. 75-6105, the maximum liability for the aggregate of all claims herein was $500,000.00 and that, should such amount be exceeded, apportionment of awards would be necessary.
In the damage determination phase of this case the trial judge ruled the following awards should be made:
1. David Jackson $ 87,750.00
2. Thomas DeKeyser $ 1,500.00
3. Kermit Kitchen $119,750.00
4. Daniel Freeman $203,750.00
5. Edgar & Nellie Glover $ 79,750.00
6. Earl & Elizabeth McCord $ 7,500.00
$500,000.00 Total:
On appeal defendant City contends the awards as to Messers. Jackson, Freeman and Kitchen were excessive.
As a result of injuries sustained in the collision, David Jackson’s left leg was amputated above the knee. He continues to have pain and numbness in various parts of his body. The prosthesis he wears creates a number of recurring physical problems. At the time of the accident, Mr. Jackson had a 36.2 year life expectancy.
Daniel Freeman was thrown from the fire truck with great force and his head struck a brick wall. He suffered an epidural hematoma which stripped the dura, the covering of the brain, away from the bone. He had to undergo brain surgery. Additionally, he suffered a fractured shoulder blade and multiple fractured ribs. He was hospitalized from September 10, 1979, until March 7, 1980, and has suffered considerable permanent brain damage.
Kermit Kitchen sustained a closed head injury with bruising to the right frontal brain lobe, bilateral basal skull fractures, multiple rib fractures, pneumohemothorax, multiple fractures of a wrist, and numerous abrasions. While disputed, there was substantial evidence introduced of permanent brain damage resulting from Mr. Kitchen’s injuries. The trial court found Mr. Kitchen had suffered permanent brain damage.
The City’s primary complaint about the size of the awards is stated in its brief as follows:
“The City suggests that the award of monetary damages to the employee-claimants in this case is excessive. The Court awarded damages for physical injury without consideration of loss of salary or medical expenses . . . which were partially satisfied by the medical insurance, injury leave and pension provided by the city, as well as by payments provided by the Firemen’s Relief Association. As pointed out earlier in this brief, these payments were all to which the employee plaintiffs were entitled by virtue of contractual agreements between the City and the IAFF [International Association of Fire Fighters] and between the City and the Firemen’s Relief Association.”
In disposing of this issue, the trial court stated:
“One is the City’s defense of what the plaintiffs would like to call collateral source. None of the parties have briefed this question for me. I don’t know if the pension payments given to the firemen are — fall under the collateral source rule or if these are matters of contribution which the City is paying the plaintiffs because of the injuries received by them. The same would be true of the medical payments which all of the plaintiffs have received which have substantially satisfied their past medical expenses, and I understand at least $150 of the pension benefits that they are receiving, that being the benefits that they are receiving directly from the Firemen’s Relief Fund, is primarily to be used for future medical expenses.
“Apparently the premiums paid for the insurance coverage were paid by the City solely rather than by either the plaintiffs or any third source. I’ve heard really no evidence — all I’ve heard is a statement by Mr. Denk [counsel for the City], but really no evidence as to whether these benefits were derived from any type of collective bargaining agreement or if they were payments which were voluntarily made by the City.
“However, I find in this case it is immaterial as to whether these payments were voluntarily made, by the City or do in fact fall under the collateral source rule. The evidence clearly demonstrates in this case that, with the exception of Mr. DeKeyser, all of the plaintiffs were severely and permanently injured as a result of the accident in question.
“I have, in considering all of the damages suffered, the personal injuries suffered by the plaintiffs along with the property damage sustained in this case, I feel that the total damages would have — and this again does not consider the extensive loss of wage or medical expenses, would have approximated the sum of one million dollars.
“If I considered all the probable future loss of wage of all of these plaintiffs, I think the probable verdict in this case, if there had not been the statutory limitation, would have exceeded three to four million dollars.”
We agree with the trial court. Even excluding expenses paid by the City-purchased insurance, the City’s wage payments, and contribution to the pensions, we conclude the apportioned verdicts are clearly not excessive. It should be noted the City devoted approximately one-and-a-half pages of its 73-page brief to this issue and apparently does not consider this to be a significant point..
V. DID THE DISTRICT COURT ERR IN ORDERING THE CITY OF KANSAS CITY TO INDEMNIFY FIREMEN JACKSON AND DEKEYSER AND TO PAY THEIR ATTORNEY FEES?
In reliance on K.S.A. 1983 Supp. 75-6109, the City contends Jackson and DeKeyser (the two drivers) did not cooperate in good faith in the defense of the claims brought against them and hence the City should not have been ordered to indemnify them. The City also argues it was error for the district court to have ordered the City to pay these firemen’s attorney fees.
We shall first consider the matter of indemnification. Jackson brought an action against DeKeyser and the City. DeKeyser filed a counterclaim against Jackson in this action. Jackson and De-Keyser are defendants in the actions filed by Kitchen and Freeman. Jackson and DeKeyser were each found 35 percent at fault by the jury.
K.S.A. 1983 Supp. 75-6109 provides:
“Except as otherwise provided, in the Kansas [tort] claims act, a governmental entity is liable, and shall indemnify its employees against damages, for injury or damage proximately caused by an act or omission of an employee while acting within the scope of his or her employment. A governmental entity shall not be liable under the provisions of this act for any punitive or exemplary damages against an employee, nor for payment of any costs, judgments or settlements which are paid through an applicable contract or policy of insurance. The governmental entity shall have the right to recover any payments made by it for any judgment, or portion thereof, and costs or fees incurred by or on behalf of an employee’s defense if the employee fails to cooperate in good faith in the defense of the claim or action or if the trier of fact finds that the act or omission of the employee was because of such employee’s actual fraud or actual malice.” (Emphasis supplied.)
As previously stated, the City contends Jackson and DeKeyser did not cooperate in good faith in the defense of the actions within the meaning of K.S.A. 1983 Supp. 75-6109 and hence are not entitled to indemnification. The statute speaks of the “right to recover” from the employee payments on judgments, etc., if the employee has not cooperated in good faith, rather than the refusal to pay in the first place. The effect of this is the City’s obligation to pay the injured party is unaffected by any lack of cooperation by the employee. The parties, however, raise no issue on this facet of the statute.
DeKeyser and Jackson were seeking damages for their own personal injuries as well as defending against actions brought against them.
According to the City, it was understandable that had either of these claimants cooperated fully in the defense of these actions, they would have been doing so at the expense of their own claims. “While claimants’ refusal to cooperate is understandable,” the City declares, “it is not legally justifiable under [K.S.A. 1983 Supp. 75-6109].” We do not believe the fact the same employees were both claimants and defendants in the complex litigation arising from the collision renders them guilty, as a matter of law, of failing “to cooperate in good faith in the defense” within the meaning of K.S.A. 1983 Supp. 75-6109 and hence not entitled to indemnification. The City has not shown any failure by the two firemen to cooperate above and beyond acts necessary for prosecution of their own claims. We conclude the trial court did not err in ordering the City to indemnify Jackson and DeKeyser.
We turn now to whether the trial court erred in ordering certain attorney fees be paid on behalf of Jackson and DeKeyser.
K.S.A. 1983 Supp. 75-6108 states:
“(a) Upon request of an employee in accordance with subsection (e), a governmental entity shall provide for the defense of any civil action or proceedings against such employee, in his or her official or individual capacity or both, on account of an act or omission in the scope of his or her employment as an employee of the governmental entity, except as provided in subsection (c).
“(b) A governmental entity may provide for a defense by its own attorney or by employing other counsel for this purpose or by purchasing insurance which requires that the insurer provide the defense. A governmental entity has no right to recover such expenses from the employee defended, except as provided in K.S.A. 1982 Supp. 75-6109.
“(c) Except as provided in K.S.A. 75-4360, a governmental entity may refuse to provide for the defense of an action against an employee if the governmental entity determines that:
“(1) The act or omission was not within the scope of such employee’s employment;
“(2) such employee acted or failed to act because of actual fraud or actual malice;
“(3) the defense of the action or proceeding by the governmental entity would create a conflict of interest between the governmental entity and the employee; or
“(4) the request was not made in accordance with subsection (e).
“(d) If after a timely request in accordance with subsection (e), a governmental entity fails or refuses to provide an employee with a defense and the employee retains his or her own counsel to defend the action or proceeding, such employee is entitled to recover from the governmental entity such reasonable attorney’s fees, costs and expenses as are necessarily incurred in defending the action or proceeding if the action or proceeding arose out of an act or omission in the scope of employment as an employee of the governmental entity, but such employee is not entitled to such reimbursement if the trier of fact finds that such employee acted or failed to act because of actual fraud or actual malice.
“Nothing in this section shall be construed to deprive an employee of the right to petition a court of competent jurisdiction to compel the governmental entity or the governing body or an employee thereof to perform the duties imposed by this section.
“(e) An employee’s request for a governmental entity to provide for the defense of the employee shall be made in writing within fifteen (15) days after service of process upon the employee in the action. In actions involving employees of the state, such request shall be filed .in the office of the attorney general. In actions involving employees of a municipality, such request shall be filed with the governing body thereof or as otherwise provided by such governing body. A governmental entity, in its discretion, may provide requested defense for any of its employees who failed to make a request within the time prescribed by this subsection.” (Emphasis supplied.)
The circumstances surrounding these attorney fee situations are different as to each of the two firemen. However, no claim is made that either attorney fee is excessive or that either fee was incurred other than in defense of the actions.
We shall first consider the issue as it relates to DeKeyser. On March 16, 1983, DeKeyser and the City filed a stipulation of the facts to be considered by the court in determining the attorney fee issue. The Stipulation of Facts is as follows:
“1. That the defendant Thomas DeKeyser was, at all times involved in the above case, an employee of the City of Kansas City, Kansas Fire Department.
“2. That Charles Fay was, in September of 1980, a direct superior of Mr. DeKeyser at the City of Kansas City, Kansas Fire Department.
“3. That the Mayor of the City of Kansas City, Kansas has direct jurisdiction of the City of Kansas City, Kansas Fire Department.
“4. That in September of 1980, after being served with process in the above-captioned case, Mr. DeKeyser conferred with Mr. Fay about legal representation. Mr. Fay in turn approached the office of the Mayor of the City of'Kansas City, Kansas in regard to whether the City would provide legal representation for Mr. DeKeyser. Mr. Fay was told by the Mayor’s office to instruct Mr. DeKeyser to hire an attorney and that the attorney fees incurred in the defense of the action would be paid by the City of Kansas City, Kansas.
“5. Mr. DeKeyser entered an agreement with Rodney L. Turner for Mr. Turner to represent his interests in the above-captioned cases on or about the 27th day of September, 1980. The representation agreement was not based upon a contingency fee or agreed upon fee of any sort.
“6. The City of Kansas City, Kansas had full knowledge at all times that Rodney L. Turner was not being paid an attorney’s fee by Mr. DeKeyser for defense of Mr. DeKeyser in the above action.
“7. Mr. Turner formally requested the City of Kansas City, Kansas to assume Mr. DeKeyser’s defense in the above-captioned cases and to indemnify him for any judgments taken against him and any attorney fees he incurred in a letter to the City of Kansas City, Kansas, dated November 7, 1980, a copy of which is attached hereto as Exhibit A.
“8. Daniel B. Denk responded by letter dated November 10, 1980, by saying that the City would not assume his defense and would be governed by the provisions of K.S.A. 75-6101 et seq. on the question of indemnification of Mr. DeKeyser for his legal fees and any judgments taken against him. The letter also advised Mr. Turner to keep accurate time records reflecting separate time spent for the defense of Mr. DeKeyser as opposed to defending or pursuing any other actions on his behalf. A copy of Mr. Denk’s letter is attached hereto as Exhibit B.
“9. Mr. DeKeyser requested the City of Kansas City, Kansas, to assume the responsibility for all his legal fees incurred in his defense of the above-captioned cases in a letter to Daniel B. Denk dated December 9, 1980, a copy of which letter is attached hereto and marked as Exhibit C.
‘TO. Daniel B. Denk responded by letter dated December 17,1980, by saying that the City would not assume his defense and would be governed by the provisions of K.S.A. 75-6101 et seq. on the question of indemnification of Mr. DeKeyser for his legal fees and any judgments taken against him. The letter also advised Mr. Turner to keep accurate time records reflecting separate time spent for the defense of Mr. DeKeyser as opposed to defending or pursuing any other actions on his behalf. A copy of Mr. Denk’s letter is attached hereto as Exhibit D.
“11. On January 21,1981, Daniel B. Denk, in response to a letter from David R. Hills advised Mr. Turner, by carbon copy, that the City would not assume the defense of Mr. DeKeyser in regard to the suit filed by Dan S. Freeman, the same response as Mr. Denk had given in the previous letters. A copy of Mr. Denk’s letter is attached hereto as Exhibit E.
“12. On August 17, 1981, Mr. DeKeyser filed a cross-claim against the City of Kansas City, Kansas.
“13. That Rodney L. Turner did defend the defendant Thomas DeKeyser throughout all proceedings involved in this case, including trial, and has submitted a bill for his services rendered in said defense in the amount of Twelve Thousand Two Hundred Thirty Six Dollars and Twenty-Five One Hundredths ($12,236.25).
“14. That Rodney L. Turner was advised by Daniel B. Denk, the attorney representing the City of Kansas City, Kansas in this action, that Mr. Denk was receiving $50.00 an hour from the City of Kansas City, Kansas for his services and that Mr. Turner should use that same figure in submitting his fees for the defense of Mr. DeKeyser.
“15. It is the position of the City of Kansas City, Kansas that the City Attorney of Kansas City, Kansas and his assistants were and are unable to represent Thomas G. DeKeyser due to potential conflict of interest in any of the above-captioned cases.
“16. That Rodney L. Turner joined in the defense of the City throughout the trial of the above consolidated cases.”
Under these stipulated facts we find no error in the trial court’s order directing the City to pay DeKeyser’s attorney fees. Clearly, it would have been error for the trial court to hold otherwise.
As to Jackson, his attorney submitted a bill for $763.75 for defending the actions against his client. No claim was made for attorney fees incurred in prosecuting Jackson’s claims. No issue is made over whether the attorney fees charged were in fact incurred in the defense of the cases. The City contends the existence of the Jackson claim against the City was a conflict of interest barring allowance of attorney fees. We believe the City’s reliance on K.S.A. 1983 Supp. 75-6108(c)(3) is misplaced. Where the employee and employer have conflicting interests in the litigation and the city cannot provide representation for the employee through its own legal department or hire an attorney for the employee, then the employee must select his own attorney. This does not mean the city is immune from paying for the cost thereof. Indeed, K.S.A. 1983 Supp. 75-6108(<á) specifically provides that where defense has been denied and an attorney hired by the employee, the employee is to be reimbursed for the costs of same unless “the trier of facts finds that such employee acted or failed to act because of actual fraud or actual malice.” No such finding was made by the trier of fact or, apparently, requested by the City.
We conclude the trial court did not err in ordering the City to pay the attorney fees for Jackson.
VI. DID THE DISTRICT COURT ERR IN THE CONDUCT OF THE TRIAL INCLUDING, BUT NOT LIMITED TO, THE GIVING OR REFUSING OF ITS INSTRUCTIONS, DENIAL OF THE CITY’S MOTION FOR MISTRIAL AND/OR NEW TRIAL AND THE MAKING OF CERTAIN EVIDENTIARY RULINGS, AND WHETHER SUCH ERROR WAS PREJUDICIAL TO THE CITY?
The City does not address this issue in its brief. We conclude it was intended to be nothing more than the aggregate of all the issues previously determined herein, and, accordingly, warrants no additional discussion.
VIII. DID THE TRIAL COURT ERR IN RULING THE KANSAS TORT CLAIMS ACT (K.S.A. 1983 SUPP. 75-6101 ET SEQ.) SET A MAXIMUM LIMIT OF LIABILITY FOR CLAIMS ASSERTED AGAINST GOVERNMENTAL EMPLOYEES?
This issue is raised by Freeman, Jackson and Kitchen, cross-appellants herein.
As previously noted, on the date of the collision, September 10, 1979, the applicable version of the Kansas Tort Claims Act appeared at K.S.A. 1979 Supp. 75-6101 et seq. At that time K.S.A. 1979 Supp. 75-6105(c) provided:
“Subject to the provisions of K.S.A. 1979 Supp. 75-6111, the liability of a governmental entity for claims within the scope of this act shall not exceed five hundred thousand dollars ($500,000) for any number of claims arising out of a single occurrence or accident.” (Emphasis supplied.)
K.S.A. 1983 Supp. 75-6109 imposes upon a governmental entity the obligation to indemnify an employee. The statute provides:
“Except as otherwise provided in the Kansas [tort] claims act, a governmental entity is liable, and shall indemnify its employees against damages, for injury or damage proximately caused by an act or omission of an employee while acting within the scope of his or her employment.”
Claimants contend while K.S.A. 1979 Supp. 75-6105(a) established a maximum liability on a governmental entity for its negligence’of $500,000.00, it did not impose a maximum liability upon awards against negligent employees and, therefore, pursuant to K.S.A. 1983 Supp. 75-6109, the City could be made to pay more than $500,000.00 to indemnify its negligent employees. In the instant action the aggregate value of all claims far exceeded $500,000.00.
On cross-appeal plaintiffs contend the district court erred in holding the maximum damage award was $500,000.00. The rationale of the district court is as follows:
“The additional issue of limitation of liability has been briefed by the parties. K.S.A. 75-6105, as originally enacted, stated that the liability of a governmental entity for claims within the scope of’ the tort claims act shall not exceed $500,000.00 for any number of claims arising out of a single occurrence or accident. During the 1980 legislative session the statute was amended by deleting the words ‘governmental entity.’ The original enactment was prior to the accident in question and the effective date of the amendment (April 11,1980) was [seven] months after the accident.
“Plaintiffs contend that K.S.A. 75-6105, as originally enacted, limited only the. liability of a governmental entity and did not limit liability as to employees of the entity. If so, then that statute was clearly in conflict with the provisions of K.S.A. 75-6109 prior to the 1980 amendment. K.S.A. 75-6109 requires the governmental entity to indemnify, without limit, its employees against damages for injury or damages proximately caused by an act or omission of an employee while acting within the scope of his or her employment. Plaintiffs, of course, now argue that the provisions of K.S.A. 75-6109 should control and that defendant City of Kansas City, Kansas, should be held liable for indemnification to its employees regardless of the amount of judgment rendered.
“In Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123, the Supreme Court set forth the rules governing the judicial construction of acts of the legislature as follows:
“ . . The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when the intent can be ascertained from the statutes.
“ ‘In determining legislative intent, courts are not limited to a mere consideration of the language employed, but may properly look' to the historical background of the enactment,'the circumstances attending its passage, the purposes to be accomplished, and the effect the statute may have under the various constructions suggested.
“ ‘In construing a statute, the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.
“ ‘The wisdom, justice, and expediency of legislation is not for judicial determination.’ (Citations omitted.)
“A general review and consideration of the entire torts claims act reveals that the legislature intended to give injured parties a cause of action against both the governmental entity and its negligent employees, subject to certain limitations. One of the limitations clearly announced by the legislature was a limitation of liability against the governmental entity not to exceed $500,000.00, for any number of claims arising out of a single occurrence or accident. The act also provides, under K.S.A. 75-6107, that there can be only one action commenced by reason of the same subject matter, and that a judgment against the governmental entity shall be a bar to a subsequent action against its employees and vice versa. Also, pursuant to K.S.A. 75-6109, the governmental entity is liable, and shall indemnify its employees against damages for injury or damage proximately caused by an act or omission of an employee while acting within the scope of his or her employment.
“There is.no conflict in the provision of the act, as above stated, unless we assume that the legislature did not originally intend to limit the liability of employees of a governmental entity. Although K.S.A. 75-6105, as originally enacted, did not state that employees would be personally liable for judgments in excess of $500,000.00, the statute did not specifically limit their liability as it did the governmental entity. If, as plaintiffs argue, the legislature did not intend to limit the employees’diability as it specifically limited the liability against the governmental entities, K.S.A. 75-6105(a), as originally enacted, is clearly in conflict with the indemnification provisions of K.S.A. 75-6109.
' “I am convinced that the legislature did not intend to hold either a governmental entity or any of its employees acting within the scope of their employment liable for any amount in excess of $500,000.00 [for] any single accident or occurrence. I believe that the words ‘of a governmental entity’ were inadvertently placed in subsection (a) of K.S.A. 75-6105 without the realization that such verbiage created a conflict with the indemnification provision of K.S.A. 75-6109 and with the general intent of the act. The legislature promptly acted at its next session to remedy the apparent conflict, and the 1980 amendment was simply a clarification of the clear intent of the act. Therefore, plaintiffs herein will be limited to the sum of $500,000.00 against both the city and its employees acting within the scope of their authority for all claims arising out of this accident.”
As the above passage from the district court reveals, the 1980 legislature amended K.S.A. 1979 Supp. 75-6105(a) by striking “of a governmental entity.” K.S.A. 1980 Supp. 75-6105(c), as amended, reads:
“Subject to the provisions of K.S.A. 1980 Supp. 75-6111, the liability for claims within the scope of this act shall not exceed five hundred thousand dollars ($500,000) for any number of claims arising out of a single occurrence or accident.”
The provision has not been amended subsequently. See K.S.A. 1983 Supp. 75-6105(c).
The action of the 1980 legislature was possibly prompted by an article written by Mr. Jerry Palmer, which appeared in the Winter, 1979, issue of The Journal of the Kansas Bar Association. Mr. Palmer, who had represented the Kansas Trial Lawyers Association before the 1979 legislature when it was debating the enactment of the Kansas Tort Claims Act, wrote:
“An interesting possibility arises when we note that the governmental entity is restricted to this amount [$500,000] but that there is no comparable lid for employees. Yet the section dealing with the cost of defense and the payment of claims provides: ‘. . . (A) governmental entity is liable, and shall indemnify its employees against damages, for injury or damages proximately caused by an act or omission of an employee while acting within the scope of his or her employment.’ There is no provision there that relates back to the [$500,000] statutory limitation and thus it is possible, through making an employee liable for more than the statutory limit, that the entity would, have to indemnify the employee for sums in excess of the statutory limitation.” Palmer, A Practitioner s Guide to the Kansas Tort Claims Act, 48 J.K.B.A. 299, 310 (1979). (Emphasis supplied.)
Other commentators picked up on Mr. Palmer’s “interesting possibility.” Comment, Survey of Kansas Law: Civil Procedure, 29 Kan. L. Rev. 449 (1981); Comment, The Kansas Tort Claims Act and School Districts, 28 Kan. L. Rev. 619, 622 (1980).
The 1980 legislative action on K.S.A. 1979 Supp. 75-6105(a) appeared in Senate Bill No. 534. The bill, as introduced, made additions to the statute relative to limited action cases and small claims. The additions to the statute are emphasized as follows:
“(h)(1) Except as otherwise provided in this act, either the code of civil procedure or, subject to provision (2) of this subsection, the code of civil procedure for limited actions shall be applicable to actions within the scope of this act. Actions for claims within the scope of the Kansas tort claims act brought under the code of civil procedure for limited actions are subject to the limitations provided in K.S.A. 1979 Supp. 61-1603.
“(2) Actions within the scope of the Kansas tort claims act may not be brought under the small claims procedure act.”
On January 22, 1980, the bill was called for hearing before the Senate Judiciary Committee. The minutes reveal the following occurred:
“No one testified either in support of or in opposition to the bill. Jerry Stephens [a staff member] again reviewed the provisions of the bill. Committee discussion followed. During discussion, some members indicated that they had thought that the tort claims act provided maximum recovery for $500,000, whether that was against a governmental entity or against an employee of the governmental entity.
“The staff was . . . requested to prepare amendatory language to the bill which would provide that the maximum recovery would be $500,000, whether it was against an entity or an employee, and also whether there was more than one entity involved.” Minutes of the 1980 Senate Judiciary Committee, January 22, 1980, pp. 1-2. (Emphasis supplied.)
The February 15, 1980, minutes of the Senate Judiciary Committee reflect Senate Bill No. 534 was amended to delete the phrase “of a governmental entity” from K.S.A. 1979 Supp. 75-6105(a). Senate Bill No. 534 passed both chambers unanimously and on April 8, 1980, was signed by the Governor. Kansas Legislative Information Services 1980 Senate and House Actions Report and Subject Index Report, p. 39. It became law on April 11,1980, upon its publication in the official state paper. L. 1980, ch. 294, sec. 4.
In interpreting legislative acts it must be remembered where a statute is susceptible of more than one construction, it must be given that construction which, when considered in its entirety, gives expression to its intent and purposes, even though such construction is not within the strict literal interpretation of the statute. Reeves v. Board of Johnson County Comm’rs, 226 Kan. 397, 402, 602 P.2d 93 (1979); State v. V. F. W. Post No. 3722, 215 Kan. 693, 697, 527 P.2d 1020 (1974). Further, it is the duty of a court, in ascertaining legislative intent, to reconcile — where so far as possible — various conflicting provisions of the act in order to make them consistent, harmonious, and sensible. Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978); Jordan v. Doonan Truck & Equipment Inc., 220 Kan. 431, 434, 552 P.2d 881 (1976). In keeping therewith, when the interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. State v. Dumler, 221 Kan. 386, Syl. ¶ 2, 559 P.2d 798 (1977).
In determining legislative intent, courts are not limited to a mere consideration of the language employed, but may properly look into the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under various suggested constructions. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978). A statute should never be given construction that leads to uncertainty, injustice or confusion, if possible to construe it otherwise. In construing a statute words and phrases should be construed according to context and the approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Coe v. Security National Ins. Co., 228 Kan. 624, Syl. ¶ 2, 620 P.2d 1108 (1980). It should be remembered that legislative interpretation is a question of law. Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, 171, 592 P.2d 103 (1979).
A brief discussion of the legislative history of the initial enactment of the Kansas Tort Claims Act (Substitute Senate Bill No. 76 [1979]) is necessary for inclusion herein. As would be expected on pending legislation of this magnitude, many citizens of Kansas and organizations participated in the hearings held thereon. Two of the leaders, holding views in opposition to each other, were E. A. Mosher, Executive Director of the League of Kansas Municipalities, and Jerry R. Palmer on behalf of the Kansas Trial Lawyers Association. One of the principal bones of contention was the maximum limit of liability of governmental entities for all claims arising out of a single occurrence or accident. Originally $300,000.00 was the stated limit. Limits of $500,000.00 and $1,000,000.00 were discussed. As enacted, the limit was fixed at $500,000.00 (K.S.A. 1979 Supp. 75-6105).
We have examined the legislative history surrounding the enactment of the Kansas Tort Claims Act and have failed to find any reference to any discussion relative to a governmental em ployee having unlimited exposure to judgment for actual damages while a governmental entity has a $500,000.00 limitation on liability. If governmental employees were intended to be left “swinging in the breeze,” so to speak, for excess judgments (involving actual damages as opposed to punitive damages) or if a governmental entity could be subjected to paying more than $500,000.00 through indemnification of its employees, it would be reasonable to assume at least some mention relative thereto would have been made in the hotly contested hearings involving the proposed legislation.
With these rules of statutory construction in mind, we conclude the district court did not err in holding the 1980 amendment to K.S.A. 1979 Supp. 75-6105 was simply a clarification of the existing law. We further conclude, as did the district court, the $500,000.00 limitation of liability set forth in K.S.A. 1979 Supp. 75-6105 is equally applicable to a governmental entity and its employees for all claims arising out of a single occurrence or accident. To hold otherwise would defeat the clearly intended limitation of liability, as a claimant could avoid the $500,000.00 limit by simply asserting his claim against both the negligent employee and the governmental entity rather than just the governmental entity. The governmental entity then would end up paying the full amount of judgment in excess of the $500,000.00 limit, by virtue of the indemnification requirements of K.S.A. 1983 Supp. 75-6109, thereby defeating the governmental entity’s statutory limit of liability. If the indemnification statute were to be held subject to the $500,000.00 limitation but judgments against employees were not, the employee would be exposed to a personal excess judgment for actual damages. Either of these results, we believe, would be contrary to the purpose, design and objective of the Kansas Tort Claims Act.
The $500,000.00 limit of liability contained in K.S.A.. 1983 Supp. 75-6105 is, of course, inapplicable where insurance has been purchased providing greater coverage pursuant to K.S.A. 1983 Supp. 75-6111.
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Per Curiam:
This is an original proceeding in discipline filed by the Board for Discipline of Attorneys (the Board) by Arno Windscheffel, Disciplinary Administrator, pursuant to Supreme Court Rule 212 (232 Kan. clxvii). A panel of the Board, after a hearing, determined that respondent neglected a legal matter entrusted to him and had violated DR 2-103 (A) and (B) (232 Kan. clxxix) and DR 9-102 (B) (232 Kan. cxcii), and had failed to cooperate with the Disciplinary Administrator in violation of Rule 207 (232 Kan. clxiv), and recommended the respondent be indefinitely suspended from the practice of law. Respondent filed exceptions to the report of the disciplinary panel (panel).
In November, 1981, the respondent, Thomas J. Caenen, had a collection agency. Caenen employed an individual by the name of Evans. Evans was hired to visit the officers of certain professions and solicit their delinquent accounts for the respondent to attempt collection. Caenen paid Mr. Evans $100.00 per week plus a 20% commission on the gross amount of receipts generated on new collection accounts above his $100.00 a week draw.
About November 11, 1981, Evans and Lisa Smith, nonlawyer employees of Caenen, contacted the office of Eugene McGill, D.D.S., a dentist practicing in the Kansas City area. Neither McGill nor any member of his staff had had prior contact with the respondent or anyone affiliated with him.
Either Smith or Evans, or both, represented themselves to be “account service representatives” for Caenen. They presented the respondent’s business card with their own names and the title “Account Service Repr.” handwritten on the card. They spoke with Dr. McGill’s office manager in an attempt to secure the referral of collection accounts to Caenen’s office. Smith and Evans represented that the respondent’s fee for the services contemplated would be 40% of any amount collected within one year and 50% of any amount collected after one year. These terms were written on the back of the business card provided Dr. McGill’s office.
Dr. McGill’s office manager agreed to refer one account to respondent for collection. The account was that of Terry Eason who owed an outstanding balance of $228.00 to Dr. McGill. By a letter dated November 16, 1981, Caenen acknowledged his employment and confirmed the terms as previously represented.
On December 2, 1981, Dr. McGill’s receptionist phoned Evans at respondent’s office to inquire as to the status of the collection account. Evans informed the receptionist that Eason had promised to be in that Friday with a $50.00 check. On January 5, 1982, the receptionist again contacted Mr. Evans. Mr. Evans informed her that a $50.00 payment had been received.
The only record apparently kept by respondent, and the only record produced by the respondent at the evidentiary hearing on this complaint, was a balance sheet reflecting Mr. Eason’s name and the amount of the outstanding balance ($228.00) referred for collection. That sheet contains a handwritten note “12-5 Pd. 50.00.” Caenen admitted on cross-examination that the records he maintained reflected that there was a payment of $50.00, and that he acknowledged to Dr. McGill or his office staff that he had a record of payment.
No money was forthcoming from the respondent. Thereafter Dr. McGill’s office repeatedly contacted the respondent’s office by phone making inquiry as to the funds collected. On a number of occasions Caenen could not be reached. Messages were left but Caenen did not return the calls. Dr. McGill’s office manager spoke to Caenen personally on March 9, 1982, and March 23, 1982. On both occasions he assured her that the amount due would be mailed immediately. The funds were not remitted.
On April 23, 1982, Dr. McGill spoke personally with Caenen by phone. During this conversation, Caenen told McGill his records regarding Mr. Eason’s account indicated that he had received one payment of $50.00. Caenen acknowledged that the payment was overdue and said he would remit the amount immediately.
The payment was not remitted as respondent promised. Consequently, Dr. McGill complained to the office of the Disciplinary Administrator by letter dated May 7, 1982.
On May 11, 1982, the Disciplinary Administrator, Arno Windscheffel, sent a letter to Caenen enclosing a copy of the letter of complaint and requesting respondent’s explanation. The letter was addressed to 10938 W. 64th Terrace, Shawnee Mission, Kansas. Receiving no reply to his first letter, Mr. Windscheffel sent a second letter dated July 20, 1982, again requesting Caenen’s explanation regarding the complaint. This letter was mailed to the same address as the first letter.
Caenen testified that at the time this complaint was initiated, his office was located at 10938 W. 74th Terrace, Shawnee Mission, Kansas. Sometime in May of 1982, he moved his office location to 10281 Santa Fe Drive, Overland Park, Kansas. Caenen stated that he notified the Clerk of the Appellate Courts and the postal service of his change of address.
It appears the letters sent by the Disciplinary Administrator were improperly addressed. Notwithstanding, Caenen testified that he received the first letter dated May 11, 1982, sometime in July of 1982. Thereafter Caenen notified the Disciplinary Administrator’s office of his new address. The second letter dated July 20, 1982, was returned to the office of the Disciplinary Administrator by the postal authorities.
On August 2, 1982, Mr. Windscheffel sent respondent a third letter, enclosed a copy of Dr. McGill’s complaint, and requested respondent’s reply. This letter was properly addressed to his new address. Caenen did not reply to the letter. On August 31, 1982, Mr. Windscheffel sent Caenen a fourth letter, referencing his third letter of August 2, 1982, and again requesting some acknowledgement. Respondent did not reply.
Caenen communicated with Dr. McGill after the complaint was filed. On August 5, 1982, Dr. McGill received a phone call from a person representing herself to be Caenen’s office manager. McGill explained the situation and the person calling promised payment would be forthcoming in the mail. Payment was not received. On August 25, 1982, Dr. McGill spoke personally with Caenen by phone. During the conversation, respondent implied that his records were not in order and that he would get back to McGill the next day. Caenen did not call Dr. McGill as promised. On September 1, 1982, Dr. McGill again spoke to Caenen. Caenen again attempted to put Dr. McGill off saying his records were not in order. An argument ensued when Caenen implied that the $50.00 payment must have been paid directly to Dr. McGill’s office, therefore Dr. McGill owed Caenen $20.00. McGill had no further contact with Caenen.
Mr. Windscheffel testified that Caenen never answered or in any manner responded to the allegations in Dr. McGill’s letter of complaint. Consequently, on January 26, 1983, the complaint was referred for consideration to a review committee pursuant to Supreme Court Rule 210(c) (232 Kan. clxvi). Caenen failed to reply to the committee. The committee referred the complaint for formal prosecution. The formal complaint against the respondent was filed on February 14, 1983.
On February 23, 1983, Dr. McGill was contacted by Stephen McAllister, an employee of Caenen. McAllister asked McGill if there was anything that could be done to get the complaint dropped. McGill replied all that he ever wanted from the beginning was payment of the amount owed, which Caenen had acknowledged receiving. The following afternoon a money order was left at McGill’s office in the amount of $30.00, fourteen months after the money had been received by Caenen.
Due to the fact that the respondent has practiced law for a number of years and the number and nature of the violations, the panel recommended that the respondent be suspended from the practice of law by the Supreme Court of the State of Kansas.
In State v. Pringle, 233 Kan. 726, 732, 667 P.2d 283 (1983), the court reviewed what weight should be accorded the findings of a hearing panel in a disciplinary proceeding:
“The findings of a panel should be accorded some weight, although the panel’s report is advisory and not binding on the court. State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981). In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), 93 A.L.R.3d 869, the court stated:
“ ‘The State Board of Law Examiners [now Kansas Board for Discipline of Attorneys] was created by rule of this court (K.S.A. 1974 Supp. 7-124, No. 202 [a]), as an adjunct of the court to have general supervision over the discipline of attorneys. The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of hi.s findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. (See 7 C.J.S. Attorney & Client § 37, p. 805.)’ ”
The respondent challenges the panel’s determination that he violated Disciplinary Rule 9-102 (B) (1), (3) and (4) (232 Kan. cxcii), which provides:
“(B) A lawyer shall:
“(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
“(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
“(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
Caenen argues the person responsible for his collections, Mr. Evans, did not keep accurate records, and that the respondent had trouble substantiating that a $50.00 payment was made by Eason to the respondent’s office. In State v. Barrett, 207 Kan. 178, 184, 483 P.2d 1106 (1971), the court stated:
“It is intimated by respondent that some of the shortcomings set forth in the record may have occurred by reason of the action of his secretaries and other lay persons in the office.
“A lawyer often delegates tasks to clerks, secretaries and other lay persons in his office. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. [Citation omitted.]
“The work done by secretaries and other lay persons is done as agents of the lawyer employing them. The lawyer must supervise their work and be responsible for their work product or the lack of it. [Citation omitted.]”
See 7A C.J.S., Attorney & Client § 148, p. 203.
Evans’ records showed a $50.00 payment had been made by Eason. Caenen admitted his office records indicated the payment was received. Respondent must take responsibility for Evans’ records. The hearing panel’s conclusion that DR 9-102 (B) (1), (3) and (4) were violated is supported by the evidence.
The respondent contends he did not violate DR 2-103 (A) and (C) (232 Kan. clxxix), which provide:
“(A) A lawyer shall not, except as authorized in DR 2-101 (B) recommend employment as a private practitioner, of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.
“(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except as authorized in DR 2-101, and except that:
“(1) He may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association and may pay its fees incident thereto.
“(2) He may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 1-103 (D) (1) through (4) and may perform legal services for those to whom he was recommended by it to do such work if:
“(a) The person to whom the recommendation is made is a member or beneficiary of such office or organization; and
“(b) The lawyer remains free to exercise his independent professional judgment on behalf of his client.”
In State v. Moses, 231 Kan. 243, 245-46, 642 P.2d 1004 (1982), a case which involved a direct mailing by an attorney to individuals who were selling their homes, the court stated:
“We fully recognize that the First Amendment rights of an attorney may be violated if a too restrictive approach is taken toward an attorney’s right to advertise. Bates v. State Bar of Arizona, 433 U.S. 350, 53 L.Ed.2d 810, 97 S.Ct. 2691 (1977). The most recent pronouncement on the question by the United States Supreme Court is found in In re B.M.J., 455 U.S. 191, 71 L.Ed.2d 64, 102 S.Ct. 929 (1982). In that case the Supreme Court held that certain restrictions on advertising and direct mailing in the rules of the Missouri Supreme Court violated the attorney’s First Amendment rights and reversed a decision of the Missouri court that the respondent should be disciplined by private reprimand. While it is true that personal solicitation by an attorney is a form of advertising, we do not believe all such solicitation is protected from reasonable regulation by the First Amendment to the United States Constitution. The United States Supreme Court has recognized a distinction between protected forms of advertising and direct solicitation. In In re R.M.J. the court noted:
“ ‘In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462 (1978), the Court held that the possibility of “fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct was so likely in the context of in-person solicitation, that such solicitation could be prohibited.” ’ 455 U.S. at 202.
“Recent cases involving direct mailings include Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219 (S.D. Iowa 1981); Koffler v. Joint Bar Ass’n, 51 N.Y.2d 140, 432 N.Y.S.2d 872, 412 N.E.2d 927 (1980), cert. denied 450 U.S. 1026 (1981); Greene v. Grievance Committee, 54 N.Y.2d 118, 444 N.Y.S.2d 883, 429 N.E.2d 390 (1981); and The Florida Bar v. Schreiber, 407 So.2d 595 (Fla. 1981).
“It is argued that direct solicitation is nothing more than other forms of advertising protected by the First Amendment. The distinction between advertising, which may not be prohibited, and direct solicitation, which may, is a fine one but we are convinced such a distinction is justified. Traditionally, the prohibition against direct solicitation has been directed to the evils inherent in ‘ambulance chasing’ and the detriment members of the public may suffer by such solicitation.
“The solicitation in the instant case, while not being of-the nature of ambulance chasing and hospital room solicitation, nevertheless is directed to a segment of the public which, under present economic conditions, is extremely vulnerable to a suggestion of employment that may or may not be advantageous to the individual homeowner. We are of the opinion that the concept of the regulation and restriction of personal solicitation is one which is not only viable but works to the benefit of the general public and to the fair administration of justice. Our Code of Professional Responsibility is patterned after that of the American Bar Association and DR 2-103 is comparable to the A.B.A. Code. We believe the prohibitions and restrictions set forth in the Code of Professional Responsibility in DR 2-103 are reasonable and necessary for the protection of the public and the fair administration of justice and as applied in this case are not invalid under the provisions of the First Amendment to the United States Constitution.
“We hold that direct solicitation of a stranger by an'attorney for employment for a particular legal matter violates the provisions of the Code of Professional Responsibility, DR 2-103, and is subject to discipline as provided by the rules of this court.”
The opinion in State v. Moses, 231 Kan. 243, was filed April 3, 1982, after the activities involved in this case occurred. The direct solicitation by Caenen or his agents of Dr. McGill is proscribed by Moses and DR 2-103. See Annot, Modern Status of Law Regarding Solicitation of Business by or for Attorney, 5 A.L.R. 4th 866.
The argument that the law on the question of restricting advertising by attorneys was in a state of flux was put forward by the respondent in State v. Moses. That argument did not sway the court from publicly censuring Moses for his actions. DR 2-103 provided adequate notice to respondent that his actions were improper.
The direct solicitation of a stranger by an attorney or his agent for employment for a particular legal matter violates the Code of Professional Responsibility, DR 2-103, and is subject to discipline as provided by the rules of this court.
The respondent argues he was deprived of due process because he was not properly notified solicitation was to be a charge against him.
Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Buffalo, 390 U.S. 544, 20 L.Ed.2d 117, 88 S.Ct. 1222, reh. denied 391 U.S. 961 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. Bar Ass’n v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974). Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the State is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. Attorney Griev. Comm’n v. McBurney, 282 Md. 116, 123-24, 383 A.2d 58 (1978). However, if specific rules are pled, the State is thereafter limited to such specific offenses. McBurney, 282 Md. at 124.
Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the State need not set forth in its complaint the specific disciplinary rules allegedly violated (State v. Nelson, 206 Kan. 154, 476 P.2d 240 [1970]), nor is it required to plead specific allegations of misconduct (State v. Alvey, 215 Kan. 460, 524 P.2d 747 [1974]). What is required was simply stated therein:
“ ‘We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ” State v. Turner, 217 Kan. at 579-80.
The court has affirmed this holding in numerous subsequent cases: State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980); State v. Regier, 228 Kan. 746, 621 P.2d 431 (1980); State v. Callahan, 232 Kan. 136, 652 P.2d 708 (1982).
The due process requirements as set out in Ruffalo and the Kansas cases cited, and the requirements of Kansas Supreme Court Rule 211 (b), have been met.
The respondent challenges the panel’s findings that he violated Supreme Court Rule 207 (a) (232 Kan. clxiv), which provides:
“(a) It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he may have affecting such matters.”
Failure to cooperate with the Disciplinary Administrator pursuant to Rule 207 (a) can be cause for discipline. See State v. Savaiano, 234 Kan. 268, 670 P.2d 1359 (1983), for a more in depth discussion of failure to cooperate by an attorney.
The respondent admitted receiving three of the four letters sent by the Disciplinary Administrator. He never sent his explanation of the matter which was requested by the Disciplinary Administrator. The evidence supports the panel’s finding of noncooperation in violation of Rule 207 (a).
The respondent contends the recommended punishment of suspension is too harsh. In State v. Scott, 230 Kan. 564, 571-72, 639 P.2d 1131 (1982), the court reviewed past disciplinary cases:
“In reviewing our previous cases we note the following actions have justified indefinite suspension: Conviction of a felony (In re Evans, 229 Kan. 182, 621 P.2d 991 [1981]); failure to carry out appeal services for which the attorney is hired, plus failure to maintain a separate trust fund for client’s funds (State v. Regier, 228 Kan. 746, 621 P.2d 431 [1980]); failure to comply with a court order requiring funds wrongfully withdrawn from an estate to be returned (State v. Goode, 228 Kan. 3, 612 P.2d 149 [1980]); accepting double fees for the same service, one fee from the city and, without knowledge of the city, one fee from the special bond counsel (State v. Romine, 227 Kan. 745, 609 P.2d 681 [1980]); failure to represent a client in a civil action by filing proper pleadings thereby allowing a default judgment to be taken against the client (State v. McGrew, 227 Kan. 741, 609 P.2d 680 [1980]); dishonesty, fraud, deceit or misrepresentation involving misuse of client’s funds (State v. Freeman, 229 Kan. 639).
“In the following cases this court has determined that public censure was a proper discipline: Where the attorney was dilatory in representing a client but not guilty of any dishonesty, fraud or deceit (State v. Granger, 228 Kan. 401, 613 P.2d 954 [1980]); neglecting legal business, failing to withdraw from case, and failing to refund a fee as promised (State v. Russell, 221 Kan. 897); withholding a client’s funds for an extended period of time (In re Hanna, 197 Kan. 645,418 P.2d 140 [1966]); failure on demand to pay money to a client, but without intent to convert the funds (In re McAnarney, 197 Kan. 643, 418 P.2d 137 [1966]).
“Among the matters to be considered in determining the nature and extent of punishment or discipline for a breach of professional responsibility, this court may consider in mitigation the following: (1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude of the attorney as shown by his cooperation during the hearing and acknowledgement of the transgression; (5) letters from clients, friends and lawyers in support of the character and general reputation of the attorney; and (6) any statement by the complainant expressing satisfaction with any restitution made and requesting no discipline. 7 Am. Jur. 2d, Attorneys at Law § 52, p. 112; State v. Stakes, 227 Kan. 711, 608 P.2d 997 (1980) (aggravating or mitigating circumstances); State v. Leon, 229 Kan. 178, 621 P,2d 1016 (1981) (previous record of professional conduct); In re Ratner, 194 Kan. 362, 399 P.2d 865 (1965) (testimony as to attorney’s reputation and character).”
Misconduct by the respondent has been clearly and convincingly established. We have given careful consideration as to the nature and extent of the punishment or discipline that should be imposed upon the respondent for his breach of professional responsibility. Due to the numerous violations of professional conduct in this matter and previous violations of professional conduct, we accept the recommendation of the Disciplinary Panel.
It is Therefore Ordered and Adjudged that Thomas J. Caenen be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. The costs herein are assessed to the respondent.
It is Further Ordered and Adjudged that respondent shall forthwith comply with Supreme Court Rule 218 (232 Kan. clxx).
This suspension becomes effective when this opinion is filed with the Clerk of the Supreme Court. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Mustafa Abdulla Abu-Isba (defendant-appellant) guilty of communicating a terroristic threat (K.S.A. 21-3419). The appellant contends (1) his arrest was not based on probable cause, (2) the Kansas Attorney General did not have authority to prosecute the action, (3) the trial court erred in the admission of certain evidence, and (4) comments made by the prosecutor during closing argument constituted reversible error.
The appellant was a Ph.D candidate in the School of Veterinary Medicine at Kansas State University. Dr. Stanley Dennis, a KSU professor in the Department of Pathology, was the appellant’s adviser for his Ph.D. program. The appellant was dismissed from the graduate program in the fall of 1981, and subsequently applied for readmission.
On May 18, 1982, the appellant went to see Dr. Dennis concerning his readmission application. When Dr. Dennis informed the appellant the application had been denied, the appellant became very agitated and told Dr. Dennis, “I will destroy you before leaving the university. I will destroy Dr. Leipold, and I will destroy Dr. Kruckenberg.” Dr. Dennis asked the appellant if he was threatening him. If so, he was going to call the campus police. The appellant said to go ahead and call the campus police. Dr. Dennis did so, but the appellant left his office before the police arrived. The campus police investigated the matter and submitted their findings to the Riley County Attorney.
The appellant again went to see Dr. Dennis the next day and demanded to know why he was not readmitted to the program. The appellant continued to go to Dr. Dennis’ office one to three times per day until May 27,1982. The appellant told Dr. Dennis he would keep up his visits each day until Dr. Dennis did what the appellant wanted.
On June 25, 1982, the appellant went to see Dr. Dennis about his second application for readmission to the graduate program. Dr. Dennis handed the appellant a letter informing him his application had been considered and denied. The appellant took the news calmly and left the office. Shortly after this the appellant met Dr. Horst Leipold, another professor in the Department of Pathology, in a corridor of the building. Dr. Leipold testified the appellant told him several times in a very enraged and loud voice, “I am going to get you.”
Dr. Dennis testified he believed the appellant was threatening his life on May 18, 1982, and that the threat has changed his life. He alters the path he drives to work and keeps his house locked up. The threats interfered with his teaching, research and service work. He was under medication for blood pressure problems at the time of trial. The appellant has never physically attacked Dr. Dennis.
The Riley County Attorney conducted an investigation into the case and decided not to prosecute. A complaint was then filed in the Riley County District Court by an assistant Kansas Attorney General charging the appellant with two counts of communicating a terroristic threat. The case was prosecuted in the district court by two assistant attorneys general. The appellant was found guilty of communicating a terroristic threat to Stanley Dennis and not guilty of communicating a terroristic threat to Horst Leipold.
The appellant first contends the State’s complaint and the supporting affidavit did not contain sufficient factual information to support an independent determination that probable cause to arrest existed.
Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint should supply the magistrate with sufficient factual information to support an independent judgment that probable cause exists. Mere conclusions are not sufficient to support such a finding. Wilbanks v. State, 224 Kan. 66, Syl. ¶¶ 1, 3, 579 P.2d 132 (1978). Probable cause is the reasonable ground for belief that a specific, crime has been committed and that the defendant has committed or is committing it. Under K.S.A. 1983 Supp. 22-2302(1) probable cause information may be set forth in separate affidavits filed with the complaint. Probable cause does not require specific evidence of each element of the offense as would be needed to support a conviction. Probable cause exists if the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980), and cases cited therein.
The appellant refers to the “two-pronged test” under Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969); and Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), used to evaluate the validity of a warrant based on hearsay. This “two-pronged test” was abandoned by the United States Supreme Court in Illinois v. Gates, 462 U.S. _, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983), in favor of a “totality of the circumstances” approach. In adopting the totality of the circumstances approach to ascertain whether based on all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place, the United States Supreme Court stated:
“The task of the issuing magistrate-is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concludfing]’ that probable cause existed.” 462 U.S. at_, 76 L.Ed.2d at 548.
The Kansas Court of Appeals followed the United States Supreme Court’s abandonment of the “two-pronged test” in State v. Rose, 8 Kan. App. 2d 659, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983). This court approved the Rose decision in State v. Walter, 234 Kan. 78, 81-82, 670 P.2d 1354 (1983).
The arrest warrant in the instant case was issued by the judge upon a complaint and supporting affidavits. The complaint is in language similar to K.S.A. 21-3419, which defines the offense of communicating a terroristic threat. A supporting affidavit by an assistant attorney general states Don Winsor, an agent for the Kansas Bureau of Investigation, investigated the incidents involving the appellant and the KSU faculty members. Winsor interviewed numerous witnesses including Drs. Dennis and Leipold. The affidavit recites the appellant’s dealings with the pathology department in his attempt to obtain his degree. The affidavit also relates Dr. Dennis’ version of the alleged threat made by the appellant on May 18, 1982, and Dr. Leipold’s statements about his encounter with the appellant on June 25, 1982.
The affidavit supplies information of the alleged threats made by the appellant to Drs. Dennis and Leipold. All sources of information in the affidavit are named and reliable. These sources include the victims of the alleged threats. The affidavit establishes probable cause to believe the appellant committed the crime charged against him within the totality of the circumstances analysis of Gates.
The appellant next contends the Kansas Attorney General has no authority to prosecute a case in the district court on his own initiative. The appellant maintains the Riley County Attorney was the only person with the power to determine whether he should be prosecuted and the Kansas Attorney General had no authority to supersede this decision. For this reason the appellant filed a motion to dismiss in the trial court. At a hearing before the trial court the Riley County Attorney testified the matter was fully investigated by law enforcement authorities and he reviewed the investigation reports. He declined to file charges against the appellant because he felt the evidence was weak and several months had passed without any alleged threats having been made by the appellant. He testified he never requested the attorney general to come in and prosecute the case. However, when told by an assistant attorney general that his office was going to file a complaint, the county attorney stated, “[T]hat’s fine with me.” Thereupon, the trial court denied the motion to dismiss.
In State ex rel. Stephan v. Reynolds, 234 Kan. 574, 673 P.2d 1188 (1984), the issue was whether the attorney general properly appeared as the prosecutor in a criminal action before the district court. There the county attorney had referred the case file to the attorney general’s office where the county attorney himself was disqualified from handling the prosecution. The court reviewed the powers of the attorney general:
“The constitution and statutes of this state are helpful, but the specific authority of the attorney general to prosecute cases in the trial courts is not spelled out in detail. Likewise, our earlier decisions do not reach the question before us. Article 1, § 1 of the Constitution of Kansas designates the attorney general as one of the executive officers of this state. The constitution is silent as to the attorney general’s powers and duties. K.S.A. 75-702 makes it incumbent upon the attorney general to appear for the State and prosecute or defend, in any court, any civil or criminal matter in which the State may be interested, when the attorney general is ‘required by the governor or either branch of the legislature’ to do so. Absent gubernatorial or legislative direction, that statute requires the attorney general to appear and defend only those cases which are before the Kansas Supreme Court. K.S.A. 75-108 also imposes upon the attorney general the duty to protect the interests of the State in any action when informed of such action by the governor. [Emphasis in original.]
“K.S.A. 19-702 imposes a duty upon the county attorneys to appear in the several courts of their respective counties and prosecute or defend on behalf of the state all suits, civil or criminal, arising under the laws of this state, in which the state or the respective county is interested. K.S.A. 19-711 provides that when the county attorney is disabled, any court before whom it is his duty to appear may appoint an attorney to act as county attorney. K.S.A. 19-723 authorizes the board of county commissioners to employ an additional attorney to assist the county attorney.
“K.S.A. 75-704 imposes a duty upon the attorney general to consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties. K.S.A. 41-1107 imposes a duty upon the county attorneys to enforce the intoxicating liquor laws, and when the county attorney neglects or refuses to do so, imposes that duty upon the attorney general.” 234 Kan. at 576.
The court went on to review prior decisions which have dealt with the authority of the attorney general or a county attorney. The court concluded:
“The attorney general is the chief law enforcement officer of the state. State, ex rel., v. Rohleder, 208 Kan. 193, 194, 490 P.2d 374 (1971). He is also designated by K.S.A. 22-2202(19) as one of the State’s prosecuting attorneys. When the attorney general is requested by a county attorney to prosecute a case in the trial court, the attorney general may file a complaint and prosecute the case to its conclusion independent of any court order. Once the attorney general enters the case, he controls the prosecution and may not be removed except for cause.
“We conclude that the respondent judge erred in holding that the attorney general had no authority to prosecute the case of State v. Good under the facts then before him. The attorney general, having been invited by the county attorney to handle the case, was properly and legally appearing as prosecutor in the trial court, and is legally entitled to continue that prosecution.” 234 Kan. at 579.
The issue here is whether under the facts and circumstances of this case the attorney general had authority to prosecute this criminal action in the district court. This is not a case where a county attorney and the attorney general are in disagreement over the proceeding instituted in the district court. Here, the county attorney was not opposed to the initiation of the prosecution by the attorney general. We therefore need not address the broad issue of whether the attorney general has the power to commence and prosecute any criminal case under any circumstance in any district court of this state, a question which we leave open. In this case the Riley County Attorney expressed no opposition to the attorney general’s decision to commence and prosecute this action against the appellant, thereby acquiescing in the attorney general’s decision. We view the acquiescence herein as equivalent to an invitation to the attorney general to prosecute the action, and the case falls within the rule set forth in Reynolds. Under the circumstances of this case the attorney general properly and legally prosecuted this action before the district court.
The appellant contends the trial court erred in failing to give a limiting instruction concerning testimony given by Bill Stowe, a friend of the appellant. Stowe testified he had talked with the appellant on August 19, 1982, at which time he attempted to dissuade the appellant from considering violence as an option to solve his problems at KSU. The appellant had informed Stowe he might do something violent to vindicate himself for being dismissed from the Ph.D program. Stowe testified the appellant felt Dr. Dennis was the foremost member of the KSU faculty who had mistreated him and destroyed his honor. Stowe also testified similar conversations with the appellant occurred on August 21, 1982, and September 26, 1982.
The trial court admitted this testimony over defense counsel’s objection, holding it was relevant to the issue of the appellant’s intent at the time the alleged threats were made to Dr. Dennis and Dr. Leipold. The defense proffered a limiting instruction which read, in part:
“Dr. E. C. ‘Bill’ Stowe offered testimony that defendant was considering violence on or about August 19,1982. This testimony was admitted into evidence for the limited pur-pose of showing what defendant may have been thinking on May 18, 1982, and June 25, 1982.”
This instruction was not given by the trial court. The appellant contends Stowe’s testimony was irrelevant, that it confused the jury on the issue of intent, and the failure to give a limiting instruction denied him a fair trial.
Relevant evidence is evidence having any tendency in reason to prove any material fact, and the determination of relevancy is a matter of logic and experience, not a matter of law. Subject to certain exclusionary rules the admission of evidence lies within the sound discretion of the trial court. State v. Norman, 232 Kan. 102, 108, 652 P.2d 683 (1982). K.S.A. 21-3419 defines a terroristic threat as “any threat to commit violence communicated with intent to terrorize another . . . All circumstances surrounding the communication, including the relationship between the parties, must be considered in determining whether the communication in issue is a terroristic threat. State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981).
On the use of evidence of subsequent or prior acts to establish intent, 29 Am. Jur. 2d, Evidence § 366, p. 415, states:
“Where one is charged with a criminal act which may be innocent or guilty according to the intent with which it was done, the acts, conduct, or statements of the accused on other occasions may be proved in order to show such intent, although such proof cannot be extended to acts, conduct, or statements of the accused which do not naturally or necessarily bear on the issue to be established. . . .
“Evidence of subsequent, as well as prior, acts, conduct, or statements of the accused bearing on the issue of his intent with respect to a criminal offense with which he is charged may be admissible. This does not render admissible every subsequent self-serving act of the accused, but the circumstances of the individual case must be considered, the inquiry in each instance being whether the evidence of the accused’s subsequent mental state is of any probative value as to his state of mind at the time of the alleged criminal acts, and if so, whether the evidence would unduly entangle the issues and confuse the jury.”
See also 22A C.J.S., Criminal Law § 623; 1 Wharton’s Criminal Evidence § 209 (13th ed. 1972); Moorman v. United States, 389 F.2d 27, 30 (5th Cir. 1968); United States v. Stoehr, 196 F.2d 276, 282 (3d Cir. 1952).
The determination of the relevance and admissibility of the appellant’s subsequent statements to Stowe concerning possible violence against the members of the Pathology Department at KSU was within the sound discretion of the trial court. The appellant’s contemplation of violence against the faculty members in August and September was found by the trial court to be relevant to the issue of the appellant’s intent when the alleged threats were made by him in May and June. We agree with this conclusion. In addition, K.S.A. 60-445 vests broad discretion in the trial court to balance the probative value of evidence against the prejudicial effect it may have on the jury. State v. Green, 232 Kan. 116, 123, 652 P.2d 697 (1982). The evidence presented was not so prejudicial as to outweigh its probative value and deprive the appellant of a fair trial. We find the trial court did not abuse its discretion in allowing this evidence to be admitted.
The jury was instructed that to find the appellant guilty of communicating a terroristic threat the following elements had to be established:
“1. That the defendant threatened to commit violence.
“2. That such threat was communicated with intent to terrorize Stanley M. Dennis and that this act occurred on or about the 18th day of May, 1982, in Riley County, Kansas.”
The instruction follows PIK Crim. 2d 56.23 which was approved in State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 (1976). The instruction given setting forth the elements of the crime required that the intent to terrorize be present at the time the threat was communicated. Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions. See Black v. Don Schmid Motor, Inc., 232 Kan. 458, 474, 657 P.2d 517 (1983). The trial court did not err in refusing to give the instruction requested by the appellant.
As his final point the appellant argues a remark made by the prosecutor during closing argument constituted reversible error. After discussing the testimony of another witness who overheard the alleged threat to Dr. Leipold, the prosecutor stated:
“She thought he was serious. And I guarantee you these gentlemen to whom he spoke these words took him seriously.”
The trial court refused to admonish the jury to disregard the remark.
The appellant points to the well-established rule in this state that error is committed when a prosecutor injects his or her personal opinion into closing argument. See State v. Williams, 228 Kan. 723, 732, 621 P.2d 423 (1980); State v. McDaniel & Owens, 228 Kan. 172, 179, 612 P.2d 1231 (1980); State v. McClain, 216 Kan. 602, 607-08, 533 P.2d 1277 (1975); DR 7-106(C)(4) (232 Kan. clxxxviii). Although the remark by the prosecutor of which complaint is made was improper, we do not believe it constituted reversible error. For such remarks to be harmless error, the reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982). Here the remark by the prosecutor amounted to no more than a summation of the testimony of Dr. Dennis and Dr. Leipold. Dr. Dennis testified he took the threats “very seriously” and has changed numerous aspects of his lifestyle to protect himself from a possible attack by the appellant. Dr. Leipold testified he was very upset by the appellant’s threat, that he felt threatened and is still afraid of the appellant, and that he also took precautions to protect himself from violence by the appellant. Nevertheless, whether or not Dr. Dennis and Dr. Leipold took the appellant’s threats seriously and believed they were being threatened is immaterial to the issue of the appellant’s guilt or innocence. The primary issue is whether the appellant communicated the threats with the intent to terrorize the victims, not whether the victims took the threats seriously and actually felt threatened. Assuming the jury followed the court’s instructions, as we must on the record here presented, the comment made during closing argument would not have had any effect on the jury’s determination of guilt or innocence. We hold it to be harmless error.
The judgment of the lower court is affirmed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
This case was originally a part of Iola State Bank v. Biggs. The action was separated into two cases. The first case was decided on appeal at 233 Kan. 450, 662 P.2d 563 (1983). The appellees in the present appeal intervened in the original Biggs case because checks issued to the intervenors from Biggs Feed and Grain, Inc. (Biggs) were dishonored by the drawee, Iola State Bank (Bank). The case was tried to a jury. After all the evidence was presented, the trial court directed a verdict in favor of the intervenors against the Bank in the sum of $26,663.14. The issue of whether punitive damages should be awarded to the intervenors was submitted to the jury. The jury awarded the intervenors punitive damages in the amount of $150,000.00. The Bank appeals.
Biggs operated a feed and grain elevator at Waverly, Kansas. Biggs purchased and sold grain. Biggs conducted its banking business with the Iola State Bank.
Biggs was indebted to the Bank by virtue of its promissory note dated February 13,1981, in the sum of $294,000.00, with interest at the rate of 17% per annum. Biggs had never been financially able to make any payment of principal or interest on the note, which had become due in July, 1981.
Biggs was in the business of buying grain from farmers and selling grain to large dealers of grain. Joe Biggs, president of Biggs, checked the market daily to price the grain Biggs purchased. Upon the delivery of grain to the elevator, Biggs issued weight slips to the farmers/sellers, stating both the unit price and total price for the delivery. Frequently, it would be days or weeks before the farmers/sellers would be paid for the grain sold Biggs. Biggs would resell the grain it purchased to dealers. Biggs was entitled to the profits or losses suffered from the resale of the grain. When Biggs received payment for its sale to the large grain dealers, it would deposit the funds in its general checking account with the Bank. Biggs wrote the checks to pay the farmers/sellers from its general account with the Bank.
The Bank financed the grain operation since its inception in 1974. Security agreements were executed on May 20, 1975, and August 15, 1980, between Biggs and the Bank. The 1980 agreement provided the Bank with a security interest in all inventory of seed and grain and a purchase money security interest in all wheat, soybeans and feed grains owned or acquired by Biggs. The Bank filed a financing statement June 3, 1975, and a continuation statement on March 10,1980, with the Secretary of State’s office.
The farmers/sellers (intervenors) each sold grain to Biggs. Biggs issued checks, payable to the respective farmer/seller. The checks were presented to the Bank for payment from Biggs’ account. When issued, Biggs’ account at the Bank was sufficient to cover all the outstanding checks. From September, 1981, until December 31, 1981, proceeds from Biggs’ resale of grain constituted 95% of all deposits in the account.
During an examination conducted in July, 1981, the Biggs indebtedness was criticized by the Bank examiners. The Bank examiners noted the total indebtedness and that 18 months had elapsed without any reduction in principal or interest. The Bank assured the examiners the Biggs matter would be taken care of within 90 days.
On August 14, 1981, Howard K. Gilpin, president of the Bank, had a conference with Joe Biggs. Biggs was informed the note was past due and was given 90 days from the bank examination, to the middle of October, to find other financing or a buyer for the business. The Bank discovered its deadline fell during the middle of the soybean harvest season. At Joe Biggs’ request, Gilpin extended the Bank’s deadline until November 15, 1981.
Biggs was unable to make payment by the deadline. On November 23, 1981, Ralph E. Smith, the Bank’s agricultural loan officer, wrote Biggs demanding payment. No further extension would be granted by the Bank. Joe Biggs received the letter but failed to respond.
On December 7, 1981, checks issued by Biggs to the farmers/sellers for past grain sales to Biggs began to arrive at the Bank. The Bank took affirmative steps to collect Biggs’ indebtedness due the Bank. Being advised by its legal counsel, the Bank set off Biggs’ general checking account and applied the funds against the balance due on the Biggs’ note. Checks received by the Bank for payment prior to setoff were dishonored because of insufficient funds in the Biggs’ checking account. The checks had been written by Biggs between August 17, 1981, and December 2, 1981. On the same day as the setoff, the Bank filed suit against Biggs, and Joe Biggs and his wife individually, seeking payment of the balance due on the note and foreclosure of its security interest, and against the Bybees, Joe Biggs’ in-laws who had guaranteed his note, as guarantors of the note.
The farmers/sellers intervened in the suit. The case was separated into two actions. This case was tried to a jury. After all of the evidence had been presented, the trial court directed a verdict in favor of the farmers/sellers for $26,663.14. The issue of punitive damages was submitted to the jury. The jury awarded the farmers/sellers punitive damages of $150,000.00. The Bank appealed.
Prior to the adoption of the Uniform Commercial Code, cash sales were governed by the “cash sale doctrine.” A cash buyer did not receive title to the goods purchased until the seller was paid in full. A cash buyer who had not paid the seller in full could not pass title to a bona fide purchaser. A cash seller who was not fully paid for the goods retained title and could reclaim the goods from the purchaser. The cash sale doctrine restricted the free flow of goods in commerce. The cash sale doctrine was abolished by the adoption of K.S.A. 84-1-101 et seq.
These are commercial transactions between the parties and governed by the provisions of the Kansas Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq. The UCC, when originally enacted, created substantial changes in the existing law. The underlying purposes and policies of the Code were to simplify, clarify and modernize the law governing commercial transactions. K.S.A. 84-1-102. The Act was to be liberally construed in accordance with its underlying purposes and policies. The principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy and other validating or invalidating cause remain unless displaced by a particular provision of the UCC. K.S.A. 84-1-103.
The Bank first contends the trial court erred in failing to sustain the Bank’s motion for directed verdict. The Bank claims it had rightfully set off the balance in the Biggs checking account.
At the close of the testimony, both the Bank and the farmers/sellers moved for a directed verdict. The court denied the Bank’s motion and granted that of the farmers/sellers. The court made the following findings:
“1. That upon the delivery of the grain by the Intervenors to Biggs, only a voidable title passed from the Intervenors to Biggs.
“2. That from the evidence presented in this case, no reasonable man — no reasonable and prudent man — could find otherwise than that the plaintiff bank had knowledge of the nature of Mr. Biggs’ title.
“3. That no reasonable man could find that the bank could deny that it had knowledge of the nature of Mr. Biggs’ title and of the nature of the proceeds in its hands. The stipulation sets out that 95% of the funds paid through that account were receipts from grain.
“4. That the bank willfully converted proceeds that were the property of the Intervenors.
“5. That the motion of the Intervenors for a directed verdict for the pecuniary damages sustained by them be sustained and judgment should be granted for each of them for the amounts set out in the stipulation.
“6. That the motion of the plaintiff be, and the same is hereby, denied.
“7. That the bank’s setoff of the funds in the account — knowing the nature of the voidable title of Mr. Biggs and knowing the nature of those funds in its hands — was a willful act of the bank which subjects it to at least consideration by the jury of imposition of punitive damages for that improper setoff as against these Intervenors.”
The trial court determined the farmers tendered delivery of the grain to Biggs. When the grain was delivered, it was Biggs’ duty to accept the goods and pay for them. Payment was due the farmers on delivery of the grain to Biggs. Biggs’ right to retain and dispose of the goods was conditional upon Biggs making the payment. K.S.A. 84-2-507. Biggs’ payment by check completed delivery and was sufficient to transfer title, except payment by check is conditional and defeated between the parties by dishonor of the check on due presentment. K.S.A. 84-2-511. When the Bank dishonored Biggs’ checks given for payment of the grain, the Bank voided title in Biggs and title returned to the farmers/sellers.
The trial court would be correct if Biggs had stored, not sold, the grain after delivery by the farmers/sellers. The trial court’s solution does not take into consideration the intervention of third-party rights under the UCC. It failed to consider the rights of the Bank as a secured creditor against Biggs and the farmers/sellers under the Code. In addition, the court failed to consider that after Biggs was entrusted with the grain by the farmers/sellers, Biggs sold the grain in the normal course of business to third-party purchasers. The court’s determination that Biggs’ voidable title was defeated when the checks were dishonored and title to the funds returned to the farmers/sellers is incorrect under the facts of this case.
We agree the farmers/sellers’ tender of delivery of the grain was conditional upon payment. K.S.A. 84-2-507. Biggs’ payment by check completed the sale except Biggs’ title could be defeated by the farmers/sellers upon dishonor of Biggs’ checks. When sellers entrust goods to a person with voidable title, the person so entrusted has the power to transfer title to a good faith purchaser. Where the goods have been delivered under a transaction of purchase, the purchaser has such power even though the delivery was in exchange for a check which is later dishonored. K.S.A. 84-2-403(1) and (1 )(b). Biggs, a merchant who deals in the sale of grain, was entrusted with the grain by the farmers/sellers. Biggs sold the grain in the normal course of business to good faith purchasers. K.S.A. 84-2-403(2). Prior to the Bank’s dishonor of Biggs’ checks, Biggs, with voidable title, transferred good title to good faith purchasers. Title to the grain passed to the good faith purchasers, Bunge Corporation, C G & F Grain Company, and Central Kansas Terminal.
The Bank claims under K.S.A. 84-2-403(1) it obtained title to the grain when the farmers/sellers entrusted the grain to Biggs. The Bank, a secured creditor under K.S.A. 84-2-403(4), was a purchaser in good faith for value thereby acquiring title to the grain held by Biggs.
The Bank cites authority which supports its position. The leading case of a battle between an unpaid seller and a third-party secured creditor is Matter of Samuels & Co., Inc., 526 F.2d 1238 (5th Cir.), cert. denied 429 U.S. 834 (1976). Samuels involved the sale of cattle to an insolvent meat packer, Samuels. Cattle were delivered to the meat packer. Samuels slaughtered them and allowed the carcasses to chill for 24 hours. The carcasses were then graded by the United States Department of Agriculture and a price determined. Samuels then issued a check to the seller for the sales price. Before certain checks cleared the bank, Samuels declared bankruptcy. When notified of Samuels’ bankruptcy, the drawee bank placed a stop order on Samuels’ account and returned Samuels’ checks to the sellers. The sellers sought to reclaim the proceeds of the sale of the carcasses held by the bank. The sellers were met by a secured lender of Samuels. The secured lender asserted it was a good faith purchaser since its security interest had attached to the carcasses upon their sale to Samuels. The court reasoned that a secured creditor who has an after-acquired interest fits within the broad definition of “purchase” under the Uniform Commercial Code and so qualifies as a good faith purchaser. For cases that follow Samuels or have used similar reasoning see: United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974); Martin Buick v. Colo. Spgs. Bk., 184 Colo. 166, 519 P.2d 354 (1974); B & P Lumber Co. v. First Nat. Bank, 147 Ga. App. 762, 250 S.E.2d 505 (1978) (cites Samuels); First Nat’l. Bk. of Elkhart v. Smoker, 153 Ind. App. 71, 286 N.E.2d 203 (1972); Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299 (Iowa 1975); Trust Co. v. Archives, 10 N.C. App. 619, 179 S.E.2d 850 (1971); Kennett-Murray & Co. v. Pawnee Nat. Bank, 598 P.2d 274 (Okla. App. 1979); Stumbo v. Hult Lumber Co., 251 Or. 20, 444 P.2d 564 (1968); Villa v. Alvarado State Bank, 611 S.W.2d 483 (Tex. Civ. App. 1981) (cites Samuels); Holiday Rambler Corp. v. Morris, 32 U.C.C. Rep. Serv. 1222 (D. Kan. 1981).
, K.S.A. 84-9-203, Kansas Comment 1983, authoritatively supports the Bank’s position. The Comment provides in part as follows:
“The third criterion for attachment is that the debtor have ‘rights in the collateral.’ This is a restatement of the rule that you can’t alienate what you don’t own. . . .
“In many cases the secured creditor may turn to Article 2 of the UCC to measure the debtor’s ‘rights’ with respect to collateral. For example, if a seller delivers equipment to the debtor on open account and then discovers that the buyer is insolvent, the seller can reclaim the equipment if he demands its return within ten days of delivery. 84-2-702(2). However, the seller’s right of reclamation is cut off by a good faith ‘purchaser’ under 84-2-702(3), which would include the buyer’s bank claiming the goods under Article 9. See the broad definition of ‘purchase’ in 84-1-201(32) and (33). Similarly, a cash seller of goods is subordinated to a bank financing the buyer if the check given for the goods is dishonored and the bank is in good faith. See 84-2-403(1); Central Nat. Bank of Mattoon v. Worden-Martin, Inc., 413 N.E.2d 539 (Ill. App. 1980); Gicinto v. Credithrift of America, [219 Kan. 766, 549 P.2d 870 (1976)]. In these cases, the debtor has no rights in the collateral as against the seller, but he does have the power to pass good title to the financing bank as good faith purchaser, so that the security interest attaches under this section. To this extent, ‘title’ as a relative concept is still alive under Article 9.” Emphasis supplied.
The Bank had a security agreement with Biggs which included “a purchase money security interest in all wheat, soybeans and feed grains, and all accounts receivable now or hereafter acquired” by Biggs. The security agreement was properly perfected and remained in effect at the time of delivery of the grain to Biggs by the farmers/sellers. Under K.S.A. 84-9-203, attachment of the Bank’s security interest occurs: (1) when there is an agreement that the interest attach; (2) the secured party has given value; and (3) the debtor has rights in the collateral, sufficient for secured party’s rights to attach. The Bank had loaned $294,000.00 to Biggs. Biggs acquired voidable title to the grain under K.S.A. 84-2-403 which was sufficient for the Bank’s lien to attach as a purchaser from Biggs, a cash buyer who later defaulted.
Is the Bank, with its security interest, a purchaser under the UCC? K.S.A. 84-1-201(33) defines a purchaser as “a person who takes by purchase.” “Purchase” is defined as including “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.” 84-1-201(32). The Bank was a purchaser.
Even though the Bank claims it obtained title to the grain held by Biggs, the Bank’s title was also voidable since it too had entrusted the grain to Biggs. Biggs’ subsequent sale of the grain to good faith purchasers in the normal course of business defeated the Bank’s title to the grain. The proceeds of the grain sale were identifiable cash proceeds. The Bank as a secured creditor had a right to the proceeds of the grain sales by Biggs. K.S.A. 84-9-306(1) and (3)(a). Under the Code, the Bank, a secured creditor, had a right to the money deposited in the Biggs checking account.
The farmers/sellers claim that the Bank was not a “good faith purchaser” under K.S.A. 84-2-403 and therefore acquired no title from Biggs. K.S.A. 84-1-201(19) defines “good faith” as meaning honesty in fact in the conduct or transaction concerned. The Bank would be a good faith purchaser if it is a secured creditor and has been honest in fact in the conduct or transaction between all the parties.
“The definition of ‘good faith’ in this subsection is subjective, and requires only honesty in fact. See also 84-1-203, which imposes on every contract or duty under the Code the obligation of good faith. Under 84-2-103(l)(b), the definition of ‘good faith’ is expanded to include an objective standard of ‘reasonable commercial standards of fair dealing in the trade’ when the party involved is a merchant. Two Kansas cases apply the Code’s definition of ‘good faith’ in situations involving a holder in due course under Article 3. See Kaw Valley State Bank & Trust Co. v. Riddle, 219 K. 550, 549 P.2d 927 (1976); Cairo Coop. Exchange v. First Nat’l Bank of Cunningham, 4 K.A. 2d 458, 608 P.2d 1370 (1980), aff'd in part and rev’d in part 228 K. 613, 620 P.2d 805 (1980), modified 229 K. 184, 624 P.2d 420 (1981). In Baker v. Ratzlaff, 1 K.A.2d 285, 554 P.2d 153 (1977), the court applied the Code’s good faith provisions to wrongful termination of a contract for the sale of goods. In North Central Kansas Production Credit Ass’n v. Boese, 19 U.C.C. Rep. Serv. 179 (D. Kan. 1976), the court stated that knowledge of suspicious circumstances did not amount to bad faith.” K.S.A. 84-1-201, Kansas Comment 1983 (19).
In In re American Food Purveyors, Inc., 17 U.C.C. Rep. Serv. 436 (N.D. Ga. 1974), a secured creditor’s interest in afteracquired property was defeated by an unpaid seller because the secured creditor had not acted in “good faith.” The secured creditor was not interested in the financial status of its debtor; it had loaned money in reliance on its perfected security interest in the debtor’s assets. The secured creditor obtained information of the debtor’s bad financial condition a short time prior to the debtor’s bankruptcy petition being filed. After the debtor filed bankruptcy, the secured creditor claimed 400 cases of perch worth approximately $12,000.00 as after-acquired property. The unpaid seller made claim, stating the secured creditor did not qualify as a good faith purchaser under the Code. The bankruptcy judge agreed, finding even if the Uniform Commercial Code would allow a secured creditor with an after-acquired property clause in its security agreement to prevail over a defrauded seller, the secured party could not be held to be a “good faith purchaser” where the evidence showed the secured party had notice of the financial plight of the debtor-buyer and had failed to act. As a matter of equity, it is essential that the secured party demonstrate that it acted in good faith and had no notice of debtor’s insolvent condition in order to prevail over the reclaiming rights of the seller.
What was the Bank’s conduct in regard to Biggs and the farmers/sellers in this transaction?
1. Biggs was indebted to the Bank on a promissory note dated February 13, 1981, in the sum of $294,000.00 with an interest rate of 17% per annum. Security agreements had been executed by Biggs and the Bank. A separate guaranty agreement had been executed between the Bank and the Bybees.
2. Biggs had never been able to make a payment on principal or interest due on the note.
3. The Bank knew that Biggs would not be financially able to pay the note. The Bank looked to the guarantors for payment under the guaranty agreement signed by the Bybees.
4. The Bank examiners had criticized the Bank when the examiners discovered 18 months had elapsed without a reduction of principal or interest on the Biggs note during an examination in July, 1981. The Bank assured the examiners the loan would be taken care of within 90 days.
5. August 14, 1981, the Bank president had a conference with Joe Biggs, president of Biggs, for the purpose of calling the loan.
6. The Bank extended the 90-day limitation for Biggs to pay the loan until after the harvest season, approximately five months.
7. The Bank knew funds set off in Biggs’ account for payment of the note were funds from sales of grain harvested by the farmers.
8. The Bank knew how Biggs conducted the operations of purchasing and selling of grain.
Joe Biggs testified as to the following conversation between himself and Mr. Gilpin, president of the Rank, on August 14, 1981:
“Q. Now, why had they called you down there, sir?
“A. Because I had a note that was due.
“Q. Did you have a discussion about that in their office?
“A. Yes, sure did.
“Q. Relate that discussion to us, would you, please?
“A. All right. Why Mr. Gilpin told me that they had been criticized by the bank examiners and they were going to make a claim against the Bybee Estate for their share of the note. And I said, ‘All right,’ and I said to him, I said, ‘Well, does that mean that we’re not going to be able to continue?’ He said, ‘No, we’re going to make a claim against the Bybee family for their guarantee.’ He said, ‘We have always looked to Mr. Bybee, which I’m sure you’re aware of, rather than you for the payment of these notes,’ and he said, ‘You will have this fall an opportunity to make some money which you haven’t for a year or two,’ because it looked like we were going to have some good crops, and he said, ‘What we want to do is you go up there and make the money and run the elevator like you have.’
“I said to him, ‘Well, if you don’t want the note, nobody else will.’ He said, ‘Well, with the claim against the Bybee Estate and the reduction,’ he said, ‘I think it would probably be a good loan and a person wouldn’t have any trouble getting it refinanced.’ But he said, ‘We will make the claim against the Bybee Estate,’ And I said to him, ‘Well, I’ll go home and tell Mrs. Bybee.’ He said, ‘There’s no need to do that. Our lawyers will do that.’ I asked him the amount of the claim and he told me, and then we sat there and we visited.
“Then he said, ‘You go up there and run this elevator in the fall like you have been and we’ll take care of the claim and we’ll go from there.’ He said, ‘Do you think you can be done by October 15th with harvest?’ And I said, ‘No,’ I said, ‘It depends on the weather would determine the harvest.’ I said, ‘We may not even be into harvest by October 15.’
“He said, ‘What about November 15th?’ I said, ‘If it would be a nice dry fall where everybody could get their crops out, could be; but usually by December we’re pretty well done by harvest, but,’ I said, ‘weather dictates how soon you get done by harvest. If you hit a dry year, it’s over in a hurry; if it’s a wet year, you drag it out for quite a while.’ He said, ‘You go up there and run your elevator and then we’ll decide whether to liquidate or sell it or refinance it.’ But he did say, ‘You’ll have an opportunity to make some money this fall that you haven’t had in the prior years.’
“Q. Now, did he tell you at that time that November 15th was a firm deadline?
“A. No. That was a—
“Q. What was your understanding of the deadline that you had from your conversation with Mr. Gilpin?
“A. Was to run it through the fall harvest. He was asking about tentative dates and he said October 15th. And I said, ‘Mr. Gilpin, we may not even be into harvest then because of the weather,’ and he said, ‘Well, that’s 60 days.’ I said, ‘With the right kind of weather we could be done by November 15th, but,’ I said, ‘if it’s a wet fall that could drag out.’ But I said, ‘We’re usually done, like I say, in December sometime for sure because of the weather.’
“Q. Did you leave there and go down and run your elevator like you had in past years?
“A. Right, we sure did.
“Q. Operated the same way you normally did?
“A. We did.”
On November 17, 1981, a further conversation occurred between Joe Biggs and Ralph Smith, vice-president of the Bank:
“A. On the 17th, Mr. Smith came down to the elevator and he and I—
“Q. What was going on that day when Mr. Smith came?
“A. We were buying and selling grain. In fact, we had semis in there. We were loading grain while Mr. Smith was there. And he asked me how we were doing, and I said, ‘Well, we’re still buying quite a little grain, five to seven thousand,’ and it was starting to taper down and I thought in another two to three weeks I’d be over with it.
“Q. Is that what you told him?
“A. Right.
“Q. And what did he say to that?
“A. Well, he said, ‘It sounds like it’s been a good fall.’ and he said that they had talked to the Bybee attorneys in Topeka and that he wanted to know if I knew anything. And I said no, that I was kind of in a bad position because I was a son-in-law and it really wasn’t any of my business to a certain degree.”
Had the Bank acted in “good faith” under the UCC? Neither the trial court nor the jury answered that question. The trial judge incorrectly found Biggs obtained voidable title under K.S.A. 84-2-507 and 84-2-511; that because the Bank dishonored Biggs’ checks to the farmers/sellers, the Bank’s action voided title in Biggs and title returned to the unpaid sellers, the farmers. In his findings of fact, the district judge erroneously determined under the reasonable man theory the Bank had knowledge that Biggs had no title in the funds, and that the Bank willfully converted property of the farmers/sellers when it dishonored Biggs’ checks and seized the funds in Biggs’ account. The trial court then required the jury to consider if punitive damages should be imposed. The jury determined the Bank was liable for punitive damages because of its conversion of the funds. The “good faith” issue was never determined by the trier of facts.
Here the district judge in his findings of fact and conclusions of law determined the Bank had failed to act honestly in fact and conduct thereby wrongfully converting property belonging to the farmers/sellers. We agree. The trial court’s findings of fact determined as a matter of law the Bank had failed to act in “good faith” as required by the UCC. Since the Bank failed to act in good faith, it was not a good faith purchaser, and its security interest did not attach against the farmers/sellers.
Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal 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. Here, after making such findings and conclusions, the trial court directed a verdict against the Bank for the wrong reason. In reviewing a directed verdict, we are to resolve all facts and inferences in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach a different conclusion thereon the motion should be denied. Stair v. Gaylord, 232 Kan. 765, 659 P.2d 178 (1983). If the trial court reached the correct result, but for the wrong reason, the decision should still be upheld. Strehlow v. Kansas State Board of Agriculture, 232 Kan. 589, 592, 659 P.2d 785 (1983).
Since the Bank’s security interest did not attach against the farmers/sellers, what is their relationship? Under the UCC a drawee is not liable to the holder of a check until it is accepted by the drawee. The UCC does not affect the Bank’s liability to the farmers/sellers in contract, tort or otherwise by its failure to accept the check when presented for payment. K.S.A. 84-3-409. Under normal circumstances, when the farmers/sellers sold the grain to Biggs and Biggs’ bank dishonors Biggs’ checks payable to the farmers/sellers, in spite of sufficient funds and in absence of a stop order, the farmers/sellers had no direct recourse against Biggs’ bank until the Bank accepted the check for payment. The UCC continues the prior law that there is no privity between the holder of a check and the drawee bank, assuming no certification or retention of the check beyond the midnight deadline.
The Bank contends, even if it is not entitled to the funds under the Uniform Commercial Code, its setoff was proper under the common law and K.S.A. 9-1206, which provides:
“Any bank shall have the right to set off any obligation or claim which it has, when the same is matured against any depositor.”
Setoffs have been recognized in Tuloka Affiliates, Inc. v. Security State Bank, 229 Kan. 544, 627 P.2d 816 (1981); Scharz v. Twin City State Bank, 201 Kan. 539, 441 P.2d 897 (1968); Tough v. Bank, 89 Kan. 583, 132 Pac. 174 (1913); Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118 (1904).
10 Am. Jur. 2d, Banks § 666, pp. 635-36, states:
“It is a general rule that when a depositor is indebted to a bank, and the debts are mutual — that is, between the same parties and in the same right — the bank may apply the deposit, or such portion thereof as may be necessary, to the payment of the debt due it by the depositor, provided there is no express agreement to the contrary and the deposit is not specifically applicable to some other particular purpose.”
Where a bank exercises an antecedent right of setoff, seizes a debtor’s account, and seizes such funds in payment of a debt owed to the bank by the debtor, two different rules have evolved — the “legal rule” and the “equitable rule.”
These were discussed in Commercial Disc. Corp. v. Milw. Western Bank, 61 Wis. 2d 671, 680-81, 214 N.W.2d 33 (1974), as follows:
“[8 A.L.R.3d at page 235] states that it is the well-settled rule that if a bank actually knows that sums deposited in the account of one of its debtors belong to a third person, it cannot apply such funds against the debtor’s obligation to it. A bank is also denied the right of setoff where it has knowledge of circumstances sufficient to necessitate inquiry concerning the sums.
“However, the courts are divided about the bank’s right to setoff funds belonging to a third person where the bank lacks knowledge of such claim or knowledge of facts requiring it to inquire about such sums. A considerable number of courts permit setoff in this situation.
“A growing number of courts, however, follow the ‘equitable’ rule that even if a bank lacks knowledge that the deposited sums belong to a third person and lacks knowledge of facts necessitating further inquiry, it cannot apply the funds against the debtor’s obligation where it has not changed its position or has no superior equities. This rule, according to the annotation, is followed in Colorado, Indiana, Michigan, Minnesota, Nebraska, Oklahoma, Pennsylvania, South Carolina, South Dakota, and Texas. The federal courts are split, some applying the ‘equitable’ rule and others applying the rule that without knowledge a bank is entitled to setoff. This split is occasioned by conflicting interpretations of United States Supreme Court cases on the subject. In an early case the supreme court enunciated the equitable rule. In three later cases the supreme court denied setoff where the bank had actual knowledge. The lower federal courts have split in their interpretation of these cases. Those following the equitable rule have relied on the Bank of Metropolis Case [47 U.S. (6 How.) 212, 12 L.Ed. 409] and have confined the later cases to their facts.” Quoted in Tuloka Affiliates, Inc., 229 Kan. at 548-49.
In Tuloka, the bank, a secured creditor, was by express authority allowed to debit funds belonging to a third person placed in the debtor’s account with the bank. This court in a 4-3 decision found since the bank had no knowledge that the funds belonged to a third party, having acted in good faith, it was entitled to the funds. The dissent stated whether the bank had knowledge or not, the funds in the debtor’s account belonged to a third party; since the funds of the third party were traceable, the bank was not entitled to the funds belonging to the third party.
A holder cannot sue the drawee bank for wrongful dishonor of an insolvent depositor’s check just because the bank dishonors the check in order to protect its own interest. Where a bank knows sums deposited in the account of one of its depositors belongs to a third party, it does not act in good faith when it applies such funds of the third party against the depositor’s debts to the bank. Under such circumstances the third party has an action directly against the bank for conversion of the third party’s funds from the debtor’s accounts.
In Ballard v. Bank, 91 Kan. 91, 92, 136 Pac. 935 (1913), a Jasper Stewart was engaged in buying and selling livestock. His custom was to purchase horses and mules, giving in payment his checks on the bank. Later he would borrow money from the bank upon his personal note to meet the checks. This plan became unsatisfactory to the bank, by reason of unsuccessful transactions made by Stewart, and it notified him that it would no longer loan him money. Stewart had to make other arrangements if he desired to continue business relations. Subsequently a conversation was had between the president of the bank and Stewart, which resulted in an agreement that Stewart might continue to buy stock, giving checks for payment, which would be paid by the bank, provided money for the purpose was furnished by Stewart from the sale of the stock he had purchased. Stewart bought stock from several persons, giving his checks. He made sales sufficient for the purpose and deposited the proceeds in time to meet the outstanding checks. The bank, however, refused to pay the checks, and applied the deposit to the preexisting debt of Stewart. Two separate actions were brought against the bank by holders of the checks. In each the plaintiff recovered.
In Ballard, the bank maintained plaintiff had no cause of action against it, because there was no privity between the bank and the holders. The negotiable instrument act provided specifically that a bank was not liable to the holder of an unaccepted check. G.S. 1909, § 5442. The court found a holder of a check cannot ordinarily maintain an action against the drawee, not withstanding it may have funds to pay the check when presented. Special circumstances, however, may give to the issuance of a check the character of a pro tanto assignment, thereby vesting in the holder a right of action upon it against the bank on which it is drawn. The action was not brought upon the checks alone but upon the entire transaction, of which the giving of the check forms a part.
In Humpert v. Citizens State Bank, 122 Kan. 101, 102, 250 Pac. 1077 (1926), action was brought by H. Humpert against the Citizens State Bank of Talmadge to recover upon a check for $1,307.83, the purchase price of wheat sold by her to James Borin. James Borin was a grain dealer. Under an agreement the bank undertook to finance the grain operations of Borin. Borin was authorized to give his checks drawn on the bank to persons from whom he purchased grain, and was required to deposit the proceeds of sales in the bank by depositing there sight drafts drawn on consignees with bills of lading attached. It was agreed that the checks would be paid out of such proceeds regardless of the state of Borin’s account with the bank at the time. Borin purchased 984 bushels of wheat from the plaintiff on November 15, 1924, and gave her his check on the bank for the purchase price, $1,307.83. Borin then deposited in the bank a sight draft with bill of lading attached, the proceeds of the wheat. When the check given plaintiff reached the bank, payment was refused although the bank had previously received the proceeds of the wheat purchased by Borin. Instead of paying the check, as it had agreed to do, it had converted the proceeds to the payment of a note which the bank held against Borin. The Bank denied the agreement as alleged by the plaintiff, but admitted the issuance of the check and the refusal of payment, and it further stated that the check was not paid because there were not sufficient funds placed to Borin’s credit in the bank to meet the check. Plaintiff recovered.
The Humpert court determined the agreement made between the bank and Borin was in part for the benefit of the others from whom grain was purchased by Borin. The plaintiff was entitled to avail herself of the agreement. A bank which accepts a deposit of money made by a depositor for a special purpose, under an agreement that it will pay the amount when needed for that purpose, cannot rightfully appropriate such deposit to discharge the depositor’s indebtedness to it. 122 Kan. at 103-04.
Here the Bank had actual knowledge the funds belonged to the farmers/sellers. When questioned regarding the funds seized, Mr. Gilpin stated:
“Q. When a check is issued in payment for grain, what is the value of that check on the day it’s issued? Is that presentment?
“A. No.
“Q. In other words, is it not a fair statement to say that this check issued to the farmers is evidence of ownership of the funds that this check represents and he presents it at your bank or whatever bank it’s drawn on to get his money?
“A. You mean does a farmer own the money?
“Q. Yes.
“A. Yes, I would say so.”
The Bank had actual knowledge of the manner in which Biggs conducted grain purchases and sales. The money in the account was from the sale of grain Biggs had originally purchased from the same farmers and then resold. The Bank had dishonored Biggs’ checks drawn on the account for payment to the farmers. The Bank had actual knowledge the funds belonged to a third party. Where a bank actually knows the sums deposited in the account of one of its debtors belong to a third person, it cannot apply such funds against the debtor’s obligation to the bank. The Bank’s setoff was improper under K.S.A. 9-1206.
The Bank next contends the trial court erred in admitting evidence regarding the financial condition of the Bank since the award of punitive damages was precluded as a matter of law. The trial court had ruled that the conduct of the Bank in setting off the balance of Biggs’ account constituted a willful and wanton conversion of the property of the farmers/sellers. The Bank’s willful and wanton conduct subjected it to the imposition of punitive damages as a matter of law. The trial court determined the action of the Bank subjected it to consideration of the imposition of punitive damages by the jury. The trial court instructed the jury it may award an additional amount as punitive damages, then defined the terms “willful” and “wanton.”
Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another’s rights. The purpose of punitive damages is to restrain him and deter others from the commission of similar wrongs. In assessing punitive damages, the nature, extent and enormity of the wrong, the intent of the party committing it, and generally, all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be considered. Will v. Hughes, 172 Kan. 45, Syl. ¶ 10, 238 P.2d 478 (1951).
Normally there is no justification for assessing punitive damages against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort. Actions more reprehensible than mere negligence or mistake are required. Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 64-65, 643 P.2d 100 (1982).
The Bank, before exercising its right of setoff, consulted its attorney. Its counsel advised the proposed setoff was lawful in foreclosing the security interest. Punitive damages are not recoverable against a defendant who acts in good faith and under the advice of counsel. 22 Am. Jur. 2d, Damages § 253, pp. 346-47. However, whether or not an attorney has been apprised of all the facts underlying the client’s proposed actions and those underlying facts are such that the client’s actions would subject it to punitive damages, liability may not be avoided by claiming it acted upon the advice of counsel. The Bank’s attorney had no knowledge it had acted in bad faith. Here the trial court found that the Bank had converted the funds in the Biggs’ account which it knew belonged to a third party. Therefore, the Bank was subject to the imposition of punitive damages because of its conduct.
In awarding punitive damages, the jury considered the financial condition of the Bank. The Bank contends that the trial court erred in allowing the jury to consider its financial condition. When assessing punitive damages, the jury should not only consider the nature, extent and enormity of the wrong, the intent of the party committing the wrong, and all circumstances surrounding the transaction but it should also take into consideration any mitigating circumstances which may be considered to reduce the damages. In fixing an award of punitive damages, a jury may consider the amount of actual damages recovered, defendant’s financial condition, and the probable litigation expenses, including attorney fees. Sampson v. Hunt, 233 Kan. 572, Syl. ¶ 12, 665 P.2d 743 (1983). Introduction into evidence of the Bank’s financial status was proper.
The Bank next contends the award of punitive damages was excessive. The trial court erred in refusing to order a remittitur of damages. The jury awarded $150,000.00 punitive damages. The Bank contends $150,000.00 is excessive and disproportionate to the actual damages of $26,663.14 suffered by the plaintiffs.
It is difficult, if not impossible, to lay down precise rules to test the question of when a verdict of punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Neither the court nor the legislature has established a fixed ratio between the actual and punitive damages to determine whether punitive damages awarded are excessive.
The award of punitive damages here is approximately six times the award of actual damages. Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict, in light of the evidence, shocks the conscience of the appellate court. Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979). In Sampson v. Hunt, 233 Kan. 572, this court allowed an award of punitive damages 30 times the award of actual damages.
The trial court found the Bank had converted property of the farmers/sellers to its own use. The jury considered the attending circumstances, the nature of the acts and the intent of the Bank, any mitigating circumstances and the Bank’s financial condition. The jury believed such sum necessary. The amount of punitive damages awarded was supported by the evidence and was proper.
The journal entry awards each intervenor actual damages in the amount claimed, plus prejudgment interest from December 8, 1981, to the date of judgment. The court awarded postjudgment interest at 15% per year until the judgment was paid. The postjudgment interest was calculated using the amount of the judgment and 10% prejudgment interest. The Bank contends it is error to award postjudgment interest on prejudgment interest, citing Herman v. City of Wichita, 228 Kan. 63, 612 P.2d 588 (1980); First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 562 P.2d 32 (1977). We find these cases distinguishable. The case of Jerry L. Phillips, Inc. v. Ratley, 6 Kan. App. 2d 157, 627 P.2d 339 (1981), spells out how interest is computed, relating to prejudgment and posljudgment interest. At page 162 of the decision, the Court of Appeals stated as follows:
“[W]e hold that the judgment of the trial court should be modified by allowing Phillips interest from September 20,1978, on the principal sum due at the rate of 6% per annum (the rate then allowed by K.S.A. 16-201) until August 17,1979, the date of judgment. Pursuant to K.S.A. 1980 Supp. 16-204(b), the combined principal and interest owing on the date of judgment accrues interest thereafter at the rate of 8% per annum through June 30, 1980, and at the rate of 12% simple interest per annum thereafter until paid.” Emphasis supplied.
See also Lippert v. Angle, 215 Kan. 626, 627, 527 P.2d 1016 (1974).
45 Am. Jur. 2d, Interest and Usury § 78, p. 71, states:
“Although compound interest generally is not allowable on a judgment, it is established that a judgment bears interest on the whole amount from its date even though the amount is in part made up of interest, and this rule applies also to a decree in equity. As a consequence, compound interest may in effect be recovered on a judgment whereby the aggregate amount of principal and interest is turned into a new principal, or on a master’s report computing the principal and interest due, which-has been confirmed, since it is then in the nature of a judgment.”
See 47 C.J.S., Interest & Usury § 24, pp. 70-71.
Prejudgment interest becomes a part of the judgment itself; and posljudgment interest relates only to the payment of the original judgment, and accordingly the posljudgment interest is computed on the entire amount of the judgment granted. The judgment interest in this case was properly calculated.
The judgment is affirmed.
Prager, J., concurs in the result. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from a judgment of the Shawnee County District Court upholding the refusal of the State of Kansas Department of Revenue (defendant-appellee) to issue subpoenas to compel the arresting officer and a notary public to appear at a driver’s license suspension hearing to verify that a chemical test refusal report was sworn to as required by K.S.A. 1981 Supp. 8-1001. The appellant contends the Depart ment’s refusal to issue the subpoenas denied him his due process right to confront his accusers.
The parties stipulated to the following facts. Steven C. Wulfkuhle (plaintiff-appellant) was arrested on May 1, 1982, in Emporia for driving under the influence of intoxicating liquor. The appellant refused to submit to a chemical test to determine the alcohol content in his blood. The arresting officer signed a form entitled “Law Enforcement Officer’s Chemical Test Refusal Report,” which was notarized and forwarded to the Department of Revenue, Division of Vehicles, in accordance with K.S.A. 1981 Supp. 8-1001(c).
A Driver’s License Withdrawal Notice, dated May 25, 1982, was mailed to the appellant by the Department of Revenue. The appellant requested an administrative hearing on the reasonableness of his failure to submit to the test. On May 28, 1982, the appellant requested that the Department issue subpoenas for the arresting officer and notary public who signed the officer’s report to compel their attendance at the hearing, as provided by K.S.A. 8-255(/?)(Weeks). The Department refused to issue the subpoenas, relying on Attorney General Opinion 82-33, which stated the attendance of the arresting officer was not necessary at the hearing where the sworn report-indicated the licensee was capable of making a voluntary response to the request to submit to the test and the officer had reasonable grounds to believe the person was driving under the influence of alcohol. At the hearing on June 8, 1982, it was found the appellant’s refusal to take the test was not reasonable and the appellant’s driving privileges were restricted for 90 days based upon his refusal to submit to the test.
The appellant filed a petition in the Shawnee County District Court on June 24, 1982, pursuant to K.S.A. 8-259 (Weeks), contending the appellee’s refusal to subpoena the arresting officer and notary public violated his constitutional right to face and examine his accuser, and was arbitrary, capricious and without legal authority. The appellant did not request that the judge authorize subpoenas for the arresting officer or notary public for purposes of a trial de novo, nor were any underlying factual issues raised. The district court sustained the Department of Revenue’s motion for summary judgment, finding the appellant could not mount a collateral attack on the procedures utilized in the administrative hearing where he had an opportunity to appeal the administrative determination and receive a trial de novo in district court on the issue of the reasonableness of his refusal to submit to the chemical test. The appellant has duly perfected this appeal.
The question presented before this court is whether the Department of Revenue, Division of Vehicles, is required to issue subpoenas when requested by the licensee to compel the arresting officer, notary public and other relevant witnesses to appear at a hearing conducted pursuant to K.S.A. 8-255(fo) (Weeks) to establish that the chemical test refusal report was sworn to as required by K.S.A. 1981 Supp. 8-1001 or to be examined concerning the reasonableness of the licensee’s refusal to submit to the test. The appellant’s arrest, administrative hearing and the filing of the petition in the district court occurred prior to the effective date of 1982 Senate Bill No. 699 (L. 1982, eh. 144) which revised the statutory scheme governing alcohol or drug-related traffic offenses and penalties therefor, including K.S.A. 8-255 (Weeks) and K.S.A. 1981 Supp. 8-1001. At the time of the appellant’s arrest, K.S.A. 1981 Supp. 8-1001(c), which establishes the administrative procedures to be followed when a driver refuses to take a chemical test, read:
“(cj If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the arresting officer shall make to the division of vehicles of the state department of revenue a sworn report of the refusal, stating that prior to the arrest the officer had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the division immediately shall notify such person of his or her right to be heard on the issue of the reasonableness of the failure to submit to the test. If, within twenty (20) days after receipt of said notice, such person shall make written request for a hearing, the division shall hold a hearing within the time and in the manner prescribed by K.S.A. 8-255. Notice of the time, date and place of hearing shall be given to such person by restricted mail, as defined by K.S.A. 60-103, not less than five (5) days prior to the hearing. If a hearing is not requested or, after such hearing, if the division finds that such refusal was not reasonable, and after due consideration of the record of motor vehicle offenses of said person, the division may suspend the person’s license or permit to drive or nonresident operating privilege for a period of not to exceed one (1) year.”
The amended statute provides that the hearing shall be conducted in the county where the violation occurred, or a county adjacent thereto. K.S.A. 8-255(b) (Weeks) provided in pertinent part:
“(b) Upon suspending or revoking the license of any person as authorized by this act, the division immediately shall notify the licensee in writing, and upon his or her written request, shall afford such person an opportunity fora hearing as early as practical within not to exceed (30) days after receipt of such request. Said hearing shall be held in the licensee’s county of residence or a county adjacent thereto, unless the division and the licensee agree that such hearing may be held in some other county. Upon such hearing, the director or the director’s duly authorized age'nt may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require an examination or reexamination of the licensee. Upon such hearing, the division either shall rescind its oi'der of suspension or, good cause appearing therefor, may extend the suspension of such license or modify the terms thereof or revoke such license.”
This statute was not materially changed by the 1982 amendments.
While the precise issue presented in this case has not previously come before this court, two rules regarding the hearing prescribed by 8-255 and 8-1001 have been established. Where a licensee refuses to submit to a chemical test 8-1001 establishes the right to a hearing to determine “the reasonableness of the failure to submit to the test.” The court in Marbut v. Motor Vehicle Department, 194 Kan. 620, 624, 400 P.2d 982 (1965), noted this is the sole issue to be decided at the administrative hearing. Likewise, this is the only issue to be decided by the district court when it conducts a de novo review pursuant to 8-259. Lira v. Billings, 196 Kan. 726, 730, 414 P.2d 13 (1966).
This court has also examined the language contained in 8-1001(c) requiring the refusal report by the arresting officer to be a “sworn report.” In Wilcox v. Billings, 200 Kan. 654, 658-59, 438 P.2d 108 (1968), it was stated:
“Thus we see that under 8-1001, once the report is received and no further action is taken by the licensee, revocation becomes automatic. The report from the arresting officer is the basis for such revocation. What kind of report? The language of the statute is explicit — a sworn report. This report puts in motion the revocation procedure. Under other statutes (K.S.A. 21-701 and 54-105) false swearing in such matters is made criminal. False accusations may not be made with impunity. The provision for a sworn report then does afford some measure of reliability and some protection to the licensee against unwarranted accusation, and the jurat imports authenticity to the item to which it is affixed.
“Certainly one purpose of 8-1001 is to provide a fair and reliable method for determining whether a license to drive should be revoked. Essential to that purpose, the legislature must have deemed it important that a report which could become the sole basis of a revocation of a driver’s license be sworn to. We doubt if the legislature ever intended such drastic action should be taken on an unsworn averment alone. The very nature of the proceedings emphasizes this conclusion.
“We therefore hold that the provision in 8-1001 for a sworn report of refusal is mandatory. It is essential to the validity of the subsequent proceedings for suspension and revocation of a driver’s license that the report submitted to the motor vehicle department be sworn to, and further, where the report is not in fact sworn to, the subsequent proceedings are void.”
While the report in that case was notarized and appeared on its face to be sworn to, much like the report in the instant case, during trial the officer who signed it and the officer who affixed the notarial seal to the report both testified the report was not in fact sworn to.
The requirement that the report be sworn to is jurisdictional. Where the validity of the verification of the refusal report is challenged by the licensee the Department of Revenue is required to issue subpoenas to compel the attendance of the arresting officer and notary public at the suspension hearing to verify the report was sworn to as required by 8-1001 to establish that the Department of Revenue has jurisdiction to conduct the license suspension hearing. Where the validity of the verification is not challenged, however, a report which states on its face it is sworn to is considered valid and creates the presumption that the refusal to take the chemical test was unreasonable.
The Department of Revenue contends that since the reasonableness of the refusal is the only issue to be determined at the administrative hearing the jurisdictional requirement of whether the report has been “sworn to” can be considered only by the district court on a de novo review. This position overlooks the holding in Wilcox v. Billings that “where the report is not in fact sworn to, the subsequent proceedings are void.” Where the administrative body lacks jurisdiction because the report is not in fact sworn to, the district court likewise lacks jurisdiction and its proceedings are void. It is generally recognized where there is a provision for adequate judicial review, an administrative agency has initial power to determine whether it has jurisdiction in a particular case. 2 Am. Jur. 2d, Administrative Law § 332 states:
“It is a general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act — that is, to determine the coverage of the statute — and this question need not, and in fact cannot, be initially decided by a court. However, an administrative agency’s determination as to its jurisdiction is not conclusive upon the courts. It is a judicial function finally to decide the limits of the statutory power of an administrative agency.”
The Department of Revenue draws our attention to cases which have'held a trial de novo cures constitutional defects in previous lower level proceedings. See, e.g., Ludwig v. Massachusetts, 427 U.S. 618, 49 L.Ed.2d 732, 96 S.Ct. 2781 (1976); Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971). The district court, however, cannot create jurisdiction where its proceedings are void because no jurisdiction existed on the administrative level. Common sense and fair play dictate that where the issue of jurisdiction is raised it should be determined at the administrative level in the first instance, rather than continuing proceedings which may later be found to be void by the district court on review because jurisdiction was lacking at the administrative level.
The appellant also contends the Department of Revenue’s refusal to issue the subpoenas violated his constitutional right to examine his accusers on the issue of the reasonableness of his refusal to submit to the chemical test. This court has recognized in numerous cases the right to cross-examine witnesses testifying at administrative hearings of a “quasi-judicial” character is an important requirement of due process. See, e.g., Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330, 597 P.2d 654 (1979); Santee v. North, 223 Kan. 171, Syl. ¶ 2, 574 P.2d 191 (1977); Smith v. Miller, 213 Kan. 1, 11-14, 514 P.2d 377 (1973); Adams v. Marshall, 212 Kan. 595, Syl. ¶ 4, 512 P.2d 365 (1973). An administrative board or officer performs a quasi-judicial function when empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature. Thompson v. Amis, 208 Kan. 658, 663, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972); Adams v. Marshall, 212 Kan. 595, Syl. ¶ 1.
There can be little doubt the driver’s license revocation hearing is quasi-judicial in nature. The hearing officer is authorized to weigh the evidence presented and determine whether or not the driver’s refusal was reasonable. Based upon this determination the driver’s license may be suspended or revoked. In Lira v. Billings, 196 Kan. at 731, the court recognized “[w]eighing evidence and determining questions of reasonableness have always been regarded as judicial functions.” The Department of Revenue’s statutory power to subpoena witnesses, administer oaths, and enforce its subpoena power through the use of contempt penalties (K.S.A. 8-255[c]), further strengthens the conclusion that the hearings at issue are quasi-judicial.
The only limitation on the right to cross-examination in quasi-judicial administrative hearings is found in Smith v. Miller, 213 Kan. at 13, where it was held the use of affidavits was not objectionable when the testimony is of minor importance or of a cumulative nature. In the type of hearing at issue here the arresting officer’s testimony is of prime importance, and is not cumulative, because the testimony of the officer is likely to be the only evidence at the hearing that the refusal to submit to the chemical test was unreasonable.
The necessity of cross-examination of the arresting officer on the issue of reasonableness of the refusal is readily apparent. The officer’s report itself, absent the officer’s testimony, will ordinarily be the only evidence presented by the State to establish the unreasonableness of the refusal to take the chemical test. The instant case demonstrates the filing of such a report creates a presumption that refusal to take the chemical test was unreasonable. The report contains three “statements of fact” which do not deal with the “reasonableness” of the refusal. The first states the officer had reasonable grounds to believe the person was operating a vehicle under the influence of alcohol. The second states the arrest was lawful and the person refused the test. The third states that, to the best of the officer’s knowledge, the refusal was knowing, intelligent, free and voluntary. Such a refusal could be either reasonable or unreasonable. Cross-examination might reveal the facts upon which the officer relied in making these statements of fact, and, in a given situation, these statements could be brought into serious doubt through cross-examination. Without cross-examination, the hearing board has before it an unimpeachable report as evidence against the word of a self-interested licensee. The result is predictable. Furthermore, as heretofore discussed, absent cross-examination the report is accepted as being sworn to based on what appears on its face.
The Department of Revenue contends the language in 8-255 makes the issuance of subpoenas entirely discretionary, relying on the part of that statute which reads:
“Upon such hearing, the director or the director’s duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require an examination or reexamination of the licensee.”
When read as a whole, however, the statutory language appears to grant power to the Director of Vehicles to administer oaths and subpoena witnesses, rather than establish that the exercise of that power is entirely discretionary. Assuming the issuance of subpoenas is a discretionary function, where the attendance of the arresting officer or other relevant witnesses is requested by the licensee to establish, the validity of the verification of the refusal report or the reasonableness of the licensee’s refusal to submit to the chemical test, the refusal to issue subpoenas to compel the attendance of those witnesses at the hearing is an abuse of the agency’s discretion. This does not suggest, however, that the licensee’s right to have witnesses subpoenaed for the hearing is unlimited. The Director of Vehicles is entitled to exercise his discretion to limit the subpoenas issued to those persons whose testimony is relevant to the issues to be determined at the hearing.
It is worth noting in addition that 1982 Senate Bill No. 699 amended 8-1001(c) to change the place of the hearing from the violator’s county of residence to the county where the violation occurred, or an adjacent county. See K.S.A. 8-1001(c). While the relevant legislative committee minutes do not reveal a reason for this change, common sense suggests the legislature intended for the arresting officer to be called to testify at the hearing and the change was made to make it more convenient for the arresting officer and other local witnesses to attend when subpoenaed to testify.
The Department of Motor Vehicles relied on Attorney General Opinion 82-33 in declining to subpoena the police officer and notary public, which concluded that where the only issue to be determined at the hearing is the reasonableness of the refusal, the officer need not appear. While >van opinion of an attorney general may be persuasive it is neither conclusive nor binding. Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 661, 504 P.2d 206 (1972); Moore v. City of Lawrence, 232 Kan. 353, 362, 654 P.2d 445 (1982). We are not persuaded by the Attorney General Opinion because it is devoid of any due process analysis regarding the right to cross-examine adverse witnesses and does not indicate how the police officer’s report is determinative of the issue of reasonableness, although it draws the conclusion that it is.
Other matters raised by the Department of Revenue in support of a contrary conclusion have been considered but do not merit further discussion.
The judgment of the lower court is reversed and the case remanded with directions to proceed in accordance with the views herein expressed.
Prager and Herd, JJ., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a jury conviction for aggravated robbery. K.S.A. 21-3427.
On Saturday, February 20,1982, at approximately 11:00 p.m., a young black male entered the Phoenix Club, a private club on 21st Street in Wichita. The black male walked up to the bar and the bartender, Steve Virden, approached him. The black male pulled a gun on Virden and instructed him to turn over his money. Virden went to the cash register behind the bar, followed by the robber. Virden removed all the money and handed it to the robber, who then walked to the end of the bar, stopped, placed his gun directly between two customers, Robert Ortiz and John Erhartic, and instructed Virden not to move.
At trial, the State called seven witnesses. Six of the witnesses were customers at the Phoenix Club the night of the robbery. The seventh witness, Steven Virden, the bartender, was the only witness who positively identified the appellant, Steven P. Mitchell, as the robber.
Appellant initially challenges the victim’s pretrial identification of him in an out-of-court lineup.
On February 22, 1982, two days after the robbery, Steve Virden viewed a lineup at the police station. After picking the appellant out of the lineup, Mr. Virden stated, “[T]here was no doubt in my mind that was the gentleman,” who had robbed the bar. Appellant claims this pretrial identification was suggestive because he was the only light complexioned black person in the lineup; the only individual with light facial hair (another individual had a dark moustache); and was four inches taller than three persons in the lineup and two inches taller than one person in the lineup. In the appellant’s motion to suppress the evidence of the out-of-court identification, he relied upon the preliminary hearing testimony of the identifying witness, Steve Virden. It is evident from Virden’s preliminary hearing testimony that the variations in height and weight among the lineup participants did not make a significant impact.
In State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980), this court stated the test regarding the propriety of the pretrial lineup was whether it was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.” 227 Kan. at 378. See also State v. Hall, 220 Kan. 712, 717, 556 P.2d 413 (1976); State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030 (1975). It must be remembered “reliability is the linchpin in determining the admissibility of identification testimony . , . .” Munson v. Brathwaite, 432 U.S. 98, 114, 53 L.Ed.2d 140, 97 S.Ct. 2243 (1977). Thus, an in-court identification by the identifying witness is capable of standing on its own, despite a deficient pretrial confrontation, if it is based on a witness’ observation at the time of the occurrence. See State v. Marks, 231 Kan. 645, 649, 647 P.2d 1292 (1982).
In Neil v. Biggers, 409 U.S. 188, 199-200, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972), the Supreme Court suggested a number of factors to be considered in resolving the reliability of an identification:
“[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation,”
See also State v. Marks, 231 Kan. 645; State v. Baker, 227 Kan. 377; and State v. Bey, 217 Kan. 251, 257, 535 P.2d 881 (1975).
At trial the identifying witness, Steve Virden, identified the appellant as the individual who had robbed the bar. The foregoing factors support the reliability of the identification. Virden’s opportunity to observe the robber consisted of close-range visual contact with the robber making no attempt to conceal his identity. The description Virden gave the police after the robbery quite accurately fits the description of the appellant. The time between the crime and the in-court identification was only three and one-half months and, finally, appellant did not challenge the reliability of the in-court identification. We find no error.
During the trial, defense counsel questioned Steve Virden concerning his testimony at the preliminary hearing. During this examination the court on its own motion interrupted defense counsel’s questioning and instructed him to quote directly from the transcript when cross-examining the witness about his preliminary hearing testimony. Defense counsel contimied to paraphrase the preliminary hearing testimony. The court again interrupted and stated the purpose of requiring a literal reading of the preliminary hearing transcript was to prevent the jury from guessing at what was testified to at preliminary hearing. The appellant claims these interruptions resulted in “irreparable prejudice with the jurors” by implying defense counsel was engaged in improper questioning of the witness.
We recognize “it is a fundamental tenet of the law that the judge be scrupulously impartial in presiding at the trial of a lawsuit and that he refrain from conduct which might influence the jury in its findings . . . .” State v. Anicker, 217 Kan. 314, 317, 536 P.2d 1355 (1975). A judge, however, has broad discretion to control examination and “reviewing courts will not interfere unless discretion has been abused.” State v. Crouch, 192 Kan. 602, 606, 389 P.2d 824 (1964). In another case, outside of Kansas but quite similar to the instant case, the court held: “A trial judge does not become an advocate in litigation by stopping on his own motion ... an improper line of inquiry.” United States v. Wright, 542 F.2d 975, 979 (7th Cir. 1976), cert. denied 429 U.S. 1073 (1977).
Here the trial judge correctly advised appellant’s counsel as to the proper manner in which to cross-examine a witness concerning prior inconsistent testimony. This issue is without merit.
The appellant next questions the trial court’s cautionary instruction concerning the eyewitness identification.
In the instant case the eyewitness identification of the appellant was a decisive issue. The trial court asked both parties to submit requested instructions in writing. Defense counsel did not do so. During a discussion of the instructions intended to be used, the appellant objected to the court’s use of an instruction which incorporated the factors enumerated in the syllabus ¶ 2 of State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The appellant orally requested that the court use the actual instruction approved by this court in the body of Warren. The court rejected appellant’s request and used its own instruction which adopted the language of the court’s syllabus in Warren. The court told defense counsel it would accept his oral request for an instruction in lieu of a written one but suggested counsel reduce his request to writing to preserve the question for appeal. Defense counsel failed to do so.
This court has held in the past that an orally requested instruction may not be considered on appeal since it does not meet the writing requirement of K.S.A. 22-3414(3), which states:
“At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.”
In State v. Reed, 213 Kan. 557, 562, 516 P.2d 913 (1973), we noted: “There is no statutory provision for an oral request for an instruction. Hence we cannot say that the trial court erred in refusing to honor the defendant’s oral request for a specific instruction.” In the instant case, however, despite appellant’s failure to submit a written instruction, the court recognized the objection and merely suggested the appellant submit the instruction in written form in order to preserve it for appeal. The record clearly reflects the appellant objected to the instruction irsed, requested the specific instruction from the body of Warren, and particularized the grounds for his objection.
In State v. Skinner, 210 Kan. 354, 503 P.2d 168 (1972), this court reviewed an instruction orally requested when both counsel agreed the objection had been made and the court recognized the subject matter was important enough to warrant full review. Without an objection, this court may review an instruction but only if such instruction is clearly erroneous. State v. Craven, 215 Kan. 546, 550, 527 P.2d 1003 (1974). The trial court’s use of the syllabus of Warren for its instruction in this case rather than the specific instruction approved in that case is not clearly erroneous, and the instruction substantially complies with Warren. We find no error.
Appellant next argues the lower court erred in failing to instruct the jury on the lesser included offense of robbery. The trial court’s duty to instruct on lesser included offenses is governed by K.S.A. 21-3107(3), which states:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced . . , .”
The rule in Kansas is that the “duty to instruct on lesser included crimes arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser offense.” State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981). K.S.A. 21-3427 defines aggravated robbery as “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.” It is not contested in this case that the robber had a gun. Every witness who was in the bar at the time of the robbery testified that the robber had a gun. This is not a case where the defendant admitted the crime but claimed not to have used a weapon. The question the jury was asked to decide was whether appellant was the robber, not whether a weapon was used. As this court noted in a similar case, the appellant was guilty of aggravated robbery or nothing. State v. Johnson & Underwood, 230 Kan. 309, 311, 634 P.2d 1095 (1981).
The appellant further asserts the trial court erred in using the term “deadly weapon” rather than “dangerous weapon.” Although the aggravated robbery statute uses the word “dangerous” (K.S.A. 21-3427), the pattern instructions use the word “deadly.” PIK Crim. 2d 56.31. This court uses the two terms synonymously. See State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), and State v. Mitchell, 220 Kan. 700, Syl. ¶ 5, 556 P.2d 874 (1976). Even an unloaded gun has been held to constitute a deadly or dangerous weapon despite the inability of the gun to produce harm. “[T]he purpose of the . . . aggravated robbery statute is to provide an enhanced penalty where a deadly or dangerous weapon is used,” because of the victim’s fear of bodily harm created by the presence of the weapon. State v. Deutscher, 225 Kan. at 269. This court’s own interchanging of the two words does not constitute error. This issue is without merit.
Appellant next argues the trial court erred in overruling his motion for a new trial based on alleged jury misconduct.
The evening after the trial was concluded, defense counsel taped an interview with Felecia Craig, a juror in the trial. In the interview Ms. Craig testified to discussions among the jurors during their deliberations. From this testimony appellant drew up an affidavit alleging three instances of jury misconduct. They are: (1) That the verdict rendered was not Ms. Craig’s verdict and therefore not a unanimous verdict; (2) that the jury considered the fact that the defendant did not testify; and (3) that the jury considered the defendant’s previous criminal record of convictions.
The trial court ruled that the affidavit was not admissible because it delved into the mind of tire juror which is prohibited by K.S.A. 60-441. This statute provides:
“Upon an inquiry as to the validity of a verdict . . . no evidence shall he received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict ... or concerning the mental processes by which it was determined.”
The purpose of this statute is to preserve the integrity and finality of jury verdicts. Ingram v. State, 204 Kan. 836, 837, 465 P.2d 925 (1970). Further, public policy forbids the questioning of a juror on the mental process used in reaching a verdict since “there is no possible way to test the truth or veracity of the answers.” Kincaid v. Wade, 196 Kan. 174, 178, 410 P.2d 333 (1966).
In reviewing testimony similar to Ms. Craig’s affidavit that the verdict rendered was not her verdict this court has held “the mere fact a juror who joins in a verdict later professes to believe the defendant innocent is no basis for ordering a mistrial.” Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978). Also, immediately after the verdict was rendered the trial court polled each juror individually, including Ms. Craig. They advised the court the verdict rendered was their own.
Ms. Craig stated in the affidavit she was under a lot of pressure from the other jurors to change her vote, so she did. This court has held a juror may not divulge what considerations influenced such juror in arriving at a verdict. Crowley v. Ottken, 224 Kan at 31. Ms. Craig’s affidavit testimony does just that.
The last two grounds of jury misconduct alleged are unfounded. Appellant claims the jury considered appellant’s failure to testify and speculated about his possible criminal record. This court has specifically stated:
“ ‘A juror cannot he heard to impeach his verdict by saving that in the deliberation he or any other member of the jury took into consideration the matter of the defendant having failed to testify in his own behalf when the jury was instructed not to do so.’ ” State v. Myers, 215 Kan. 600, 602, 527 P.2d 1053 (1974), quoting State v. Dye, 148 Kan. 421, 83 P.2d 113 (1938).
In the instant case the jury was instructed to disregard the fact that the defendant had not testified. The ruling in Myers is therefore applicable.
In addition, we have held jury misconduct will not constitute a ground for reversal unless the rights of the defendant are substantially prejudiced. See State v. Arney, 218 Kan. 369, 371, 372, 544 P.2d 334 (1975); State v. Hanes, 166 Kan. 271, 200 P.2d 317 (1948); State v. Stuart, 129 Kan. 588, 283 Pac. 630 (1930). Here there was no showing of prejudice.
Finally, we have held a juror is permitted to testify only as to “physical facts, conditions or occurrences . . . which were material to the issues being determined.” Kincaid v. Wade, 196 Kan. at 180. Juror Craig’s affidavit breached this standard and therefore constituted inadmissible testimony concerning jury state of mind. This issue is without merit.
Appellant’s final argument is that the trial court committed reversible error in failing to comply with appellant’s request for jury selection pursuant to K.S.A. 22-3411a, which provides:
“In all felony trials, upon the request of either the prosecution or the defendant, the court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause 12 jurors to be sworn to try the case.”
Rather than the statutory method, the court followed a procedure whereby twelve veniremen were seated and passed for cause by both the defense and the prosecution. Each party then removed one juror by peremptory challenge. As each pair of veniremen were removed by a prosecution and a defense peremptory challenge, such challenged veniremen were replaced in the jury box by two new veniremen from the panel sitting in the gallery. Each new pair was.then questioned until they were passed for cause. After a total of twelve panelists were passed for cause, the same procedure for peremptory challenges was repeated until the defense had exhausted its eight peremptory challenges and the prosecution had exercised seven peremptory challenges and waived its eighth.
Prior to 1980, K.S.A. 22-3411 (Weeks) read substantially the same as K.S.A. 22-3411a does now. Effective January 21, 1981, this court amended K.S.A. 22-3411 making the application of the statutory method of jury selection within the discretion of the court rather than mandatory. This was accomplished by replacing the word “shall” with the phrase “in its discretion, may.” See 228 Kan. clvii. The court’s authority to amend a statute was granted by the legislature in K.S.A. 22-4601 (Weeks), which provides:
“The supreme court shall have power to supplement or amend the provisions of this chapter insofar as they pertain to forms of process, writs, pleadings, motions and practice and procedure in the supreme court, district courts and othei judicial tribunals to which they are applicable. Such supplements and amendments shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury, oral examination of witnesses, and the right of appeal.”
In 1981, K.S.A. 22-4601 and K.S.A. 22-3411, in both amended and unamended form, were repealed following our decision in State v. Kearns, 229 Kan. 207, 209, 623 P.2d 507 (1981), where we held: “Article 2, § 20, of the Kansas Constitution is a restriction upon the legislature’s power to make a new law except in the manner prescribed.” The court’s amendment authority violated this constitutional mandate as well as the doctrine of separation of powers. The unamended language of K.S.A. 22-3411 was then re-enacted as K.S.A. 22-341 la by the legislature. See Revisor’s Note to K.S.A. 22-3411a.
The trial court in the instant case held the enactment of K.S.A. 22-3411aby the legislature violated the doctrine of separation of powers and was therefore unconstitutional, stating:
“I think the only Constitutional ground infringed upon is the separation of power between the Legislature and the Court, and if we are to have an independent judiciary, we have to have — when judicial responsibility is encroached upon, we have to recognize it and act upon it with some resolution.
“It appears very clear to me that the Legislature doesn’t have the right to reverse the Supreme Court of Kansas . . .
The trial court interpreted the Legislative acts of repealing K.S.A. 22-4601 and K.S.A. 22-3411 and the simultaneous enactment of K.S.A. 22-3411a as acts in defiance of a Supreme Court rule. That conclusion is incorrect. K.S.A. 22-3411a was enacted to replace the void left by the repeal of the statute unconstitutionally amended by this court. There was no court rule.
At issue is whether the Supreme Court has exclusive constitutional power to make rules pertaining to court administration and procedure. To answer this requires an examination of the doctrine of the separation of powers. We have long recognized that doctrine as applying to Kansas. See In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135 (1894). However, the basis for the doctrine was not spelled out with complete analysis until eloquently stated for this court by Chief Justice Fatzer in Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973):
“The concept of a republican form of government and by implication the doctrine of separation of powers were the underlying assumption upon which the framework of the new government was developed. In reaching this conclusion, this court holds that the doctrine of separation of powers is an inherent and integral element of the republican form of government, and separation of powers, as an element of the republican form of government, is expressly guaranteed to the states by Article IV, Section 4 of the Constitution of the United States.”
It would be difficult to state the principle more succinctly. The Federal Constitution guarantees the separation of powers to the states under the guaranty clause.
Let us now examine the source and extent of judicial power in Kansas. Article 3, section 1 of the Kansas Constitution provides in pertinent part:
“The judicial power of this state shall be vested exclusively in one court of justice .... The supreme court shall have general administrative authority over all courts in this state.”
It is apparent from the unambiguous words of the constitution that the judicial power of Kansas is vested exclusively in the unified court system. This leaves for definition the term “judicial power.” It has been defined as the power to hear and determine a cause and the rights of the parties to a controversy, and to render a binding judgment or decree based on present or past facts under existing laws. 16 Am. Jur. 2d, Constitutional Law § 307, p. 824. This definition, however, pertains only to the traditional concept of judicial power. The Constitution vests in the Supreme Court the general administrative authority over the court system. This is the area lacking historical definition. In State, ex rel., v. Dawson, 86 Kan. 180, 188, 119 Pac. 360 (1911), we held:
“When a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one, or the performance of the other.”
We conclude the Supreme Court has constitutional authority under the general grant of power of administration over the court systems to promulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice. See 20 Am. Jur. 2d, Courts § 82, p. 444. Supreme Court rules have the force oflaw. Procedure is defined as the mode or proceeding by which a legal right is enforced. It is the form, manner and order of conducting suits or prosecutions, including appellate review, Jones v. Garrett, 192 Kan. 109, 114-15, 386 P.2d 194 (1963).
Jury selection is a part of court procedure. As such it falls within the ambit of this Court’s rulemaking authority. Under that authority we are now considering the adoption of new jury standards. However, we indicated differently in Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 479, 618 P.2d 778 (1980), where we stated, “There is no violation of the doctrine of separation of powers when the legislature merely changes procedural methods.” The procedural methods referred to were those conferring jurisdiction. Jurisdiction is a legislative matter. The procedure conferring that jurisdiction is therefore also legislative. Our statement in Greenwood is overbroad as illustrated by Syl. ¶ 5 thereof which correctly states the law: “The legislature has full authority to establish procedural prerequisites to the exercise of jurisdiction by the district courts over administrative appeals.” 228 Kan. 469.
We see then the judicial function falls into two categories: the traditional, independent decision-making power and the rule-making authority over administration and procedure. The power to make decisions cannot be delegated to a nonjudicial body or person, even with the consent of the litigants. See 16 Am. Jur. 2d, Constitutional Law § 311, p. 830. On the other hand, the court’s power over court administration and procedure can be performed in cooperation with the other branches of government through the use of agreed-upon legislation without violating the separation of powers doctrine. Examples are the Code of Civil Procedure, K.S.A. 60-101 et seq. and the Code of Criminal Procedure, K.S.A. 22-2101 et seq.
By the same token, the judiciary can acquiesce in legislative action in this area of the judicial function. The constitutional power over court administration and procedure remains vested in the judicial branch even though legislation is used to help perform its function. Problems arise only when court rules and a statute conflict. Under such circumstances, the court’s constitutional mandate must prevail.
In the case at bar there is no conflict between legislation and court rules. There are no court rules pertaining to the exercise of peremptory challenges of a jury. K.S.A. 22-3411a stands alone. The absence of the adoption of such a rule amounts to acquiescence on the part of the judicial branch in legislation. K.S.A. 22-3411a is therefore not in violation of the doctrine of’separation of powers and is constitutional.
However, that does not dispose of this case. The trial court did not follow the mandate of K.S.A. 22-3411a in providing for peremptory challenges to the jury. The appellant was entitled to eight such challenges. He received eight challenges but he had to exercise them piecemeal rather than in comparison to the entire panel. It is readily apparent the statute provides a defendant a more favorable method of challenging. The question remaining is whether the infraction prejudiced the appellant. We have repeatedly held errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, when substantial justice has been done, do not require reversal. See State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979); State v. Roth, 207 Kan. 691, 486 P.2d 1385 (1971); Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034 (1910). Here the method of challenge ordered by the trial court did not violate the accused’s constitutional rights to a fair trial. There is no affirmative showing of prejudice to the appellant or that the result of the trial would have been different had the statute been followed. We find the error harmless in this case. However, K.S.A. 22-3411a must henceforth be followed, if requested.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from a conviction for murder in the first degree (K.S.A. 21-3401), and aggravated battery on a law enforcement officer (K.S.A. 21-3415). The victims of the crime were both police officers of the City of Wichita. Anthony Ray Martin (defendant-appellant), along with Ivory Haislip, a codefendant, were both convicted of the aforementioned crimes by a jury in a joint trial. Anthony Ray Martin appealed from his conviction of these offenses as an aider and abettor.
The facts material for a review of this appeal are adequately stated in State v. Haislip, 234 Kan. 329, 673 P.2d 1094 (1983).
When the entire scenario of this case, stemming from the initial incident when Officer Garofalo was shot to the joint trial here for review, is viewed in retrospect, it discloses numerous errors committed in the course of investigation and prosecution. Our opinion will be confined to one major point which controls the disposition of this case.
A majority of the members of this court find that both Anthony Ray Martin and Ivory Haislip were so prejudiced by a joint trial that they were deprived of their right to a fair trial. We reverse and hold that the trial court should have granted the defendants’ motions for severance and tried each defendant separately. Most of the other errors asserted on appeal stem from rulings caused by the joinder of Martin and Haislip in one trial.
The granting of separate trials of codefendants lies within the sound discretion which the trial court has the power to exercise. State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). See also K.S.A. 22-3204. This court has held on many occasions that two or more defendants may be joined and tried together:
“(1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.” State v. Roberts, 223 Kan. 49, 55, 574 P.2d 164 (1977).
If the foregoing requirements are met, joinder is proper, subject to a showing of prejudice to either defendant by the joinder. In determining whether there is sufficient prejudice to mandate severance, this court has considered the following factors:
“The usual grounds for a severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.” 75 Am. Jur. 2d, Trial § 20.
See also State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P.2d 1255 (1975).
Finally, the trial court must remember in exercising its power of discretion that “[although a single trial may be desirable from the standpoint of economical and efficient criminal procedure, the right of a defendant to a fair trial must be the overriding consideration.” State v. Sully, 219 Kan. 222, 224, 547 P.2d 344 (1976).
In examining the factors compelling separate trials, the appellant and Haislip each argued his defense was antagonistic to that of the other, hence severance should have been allowed. The “classic case” of an antagonistic defense was held to be “where each of two defendants was trying to blame the other while trying at the same time to defend against the prosecution . . . .” 219 Kan. at 225. In Sully, the court did not find the codefendants had antagonistic defenses, since the appellant argued only that he was present at the murder but the other defendant fired the fatal gunshot. The court stated the defenses were not “inconsistent” nor “intrinsically antagonistic.” 219 Kan. at 225. A similar case was State v. Myrick & Nelms, 228 Kan. 406. In Myrick the court again held the codefendants did not make a sufficient showing of antagonistic defenses. There both defendants were accused of being the trigger man. The court held this was immaterial since they acted together to commit the crime and were both charged as principals.
Antagonistic defenses were reviewed by the Fifth Circuit Court of Appeals in United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981), cert. denied 455 U.S. 911 (1982). The court stated:
“The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive.” 654 F.2d at 1065.
The court emphasized the essence of each codefendant’s defense.
The appellant was convicted of the crimes charged as an aider and abettor. His codefendant, Ivory Haislip, was convicted of the crimes as the principal. The appellant contends in substance that the testimony of witnesses called by Haislip as part of his defense, who were not called as prosecution witnesses, was so prejudicial to him to deprive him of his right to a fair trial. We agree.
At the time the State rested its case at the joint trial of the defendants the only evidence linking Martin to the shooting was testimony that Martin was seen shortly before the shots were fired carrying a pool cue case with a gun protruding out of it. The evidence disclosed Martin was seen throwing something to the ground and running away from the scene immediately after the shooting. Further evidence disclosed fibers from the shotgun picked up at the scene had the same characteristics as fibers taken from the pool cue case. The State did not call any witnesses who testified they saw Martin do the shooting. Martin testified he saw Haislip shoot Officer Garofalo. No evidence was introduced that Martin handed the pool cue case or the gun to Haislip or that the two planned the shooting. Had the case against Martin been submitted to the jury at that time it is possible the jury may have reached a different conclusion on the issue of whether Martin supplied Haislip with the gun to shoot Officer Garofalo, which was the State’s theory stated in its bill of particulars concerning Martin’s involvement. There is no evidence in the record that Martin or Haislip knew each other or associated with each other in any way whatever.
The testimony of Haislip’s defense witnesses, presented to the jury prior to the submission of the issue of Martin’s guilt to the jury, was prejudicial to Martin for several reasons. Haislip’s witnesses testified they saw Martin shoot Officer Garofalo. The State, attempting to prove the charges against Martin, was entitled to cross-examine these witnesses by leading questions to establish Martin’s involvement as an aider and abettor. The trial court refused to instruct that the evidence tending to show Martin personally fired the shots could only be considered as it related to the questions of whether or not Haislip shot Officer Garofalo. It would be incredulous to believe the jury did not consider the testimony of Haislip’s witnesses in determining Martin’s guilt or innocence on the charge of aiding and abetting. The jury was not specifically instructed that Martin could have been convicted of only aiding and abetting. If the jury believed, based on the testimony of Haislip’s witnesses, that Martin actually did the shooting, it is probable they would have found him guilty of the charge of aiding and abetting, rather than acquit him. Had Martin been tried separately the record suggests the State would not have called Haislip’s witnesses as prosecution witnesses against Martin, because the State was committed to its bill of particulars, and the likelihood of acquittal would have been much greater.
Haislip was also prejudiced by the joinder of the trials in several respects. Martin, of course, was entitled to cross-examine Haislip’s witnesses who identified Martin as the killer. Martin was therefore placed in the position of assisting the State in proving Haislip committed the crime. Haislip was also prejudiced by the inadmissibility of the prior in-court testimony of Veronda Finley on the ground that Martin would not have the opportunity for cross-examination. Veronda Finley testified on Haislip’s behalf at his motion for a new trial. The essence of her testimony was that two of the witnesses who had implicated Martin as the murderer told her of Martin’s involvement the day after the shooting. Finley could not be located to testify at the joint trial here on review.
Had Haislip been tried separately, Finley’s prior in-court testimony would have been admissible. This testimony was important to Haislip’s defense to bolster the credibility of the witnesses who identified Martin as the killer. The State attempted to imply those witnesses who identified Martin as the killer fabricated their stories, after Haislip was convicted on the first trial, to assist in Haislip’s defense and because of their personal animosity toward Martin. The testimony of Veronda Finley would have contradicted this implication and placed Martin’s testimony in further doubt.
Ordinarily joinder of trials becomes impermissibly prejudicial only when one of the codefendants must have committed the crime and each points his finger at the other. As this case demonstrates, a narrow construction of the “intrinsically antagonistic” exception to the practice of joinder does not adequately protect defendants from inherent prejudice resulting from joinder in cases similar to the one at bar, and deprives such defendants of their fundamental right to a fair trial.
The conviction of Martin, the appellant herein, is reversed with directions to grant him a separate new trial.
Lockett, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Jack B. Cremer, following a jury conviction of felony theft (K.S.A. 21-3701). The only point raised by defendant on the appeal is that the trial court erred in failing to sustain defendant’s motion to dismiss made prior to trial. The motion was based on defendant’s contention that the State’s evidence at the preliminary hearing was insufficient to show probable cause to hold the defendant for trial. The Court of Appeals affirmed the conviction in a published opinion, State v. Cremer, 8 Kan. App. 2d 699, 666 P.2d 1200 (1983). The supreme court granted defendant’s petition for review.
The evidence presented at the preliminary hearing, when considered in a light most favorable to the prosecution, was essentially as follows: Defendant Cremer was manager of a filling station owned by the Quality Oil Company located at 21st and Moundview in Topeka. On September 17,1979, defendant’s supervisor, Verlon Cooper, was called by other employees of the filling station and advised that Cremer had not opened the station for business. Cooper went to the station and opened it. Cremer never, thereafter, returned to the station. He went to Florida and did not return to Topeka until arrested on the warrant in this case. Cremer, as manager, was responsible for making a daily report on gasoline sold and money taken in for each day. Cooper testified that he found daily report forms at the Moundview station covering sales of gasoline for September 14, 15, and 16, 1979. Each of the daily reports was signed by defendant Cremer. These reports showed that the business done at the station for those three days totaled approximately $9,000. No money was found at the station. Cooper testified that he had checked the Quality Oil Company account at Southwest State Bank and determined that Cremer had not deposited the receipts for the three-day period. Defendant objected to this testimony on the grounds of hearsay. The court overruled the objection.
Another prosecution witness at the preliminary hearing was Virginia Pence, Quality Oil’s comptroller and vice president. She was in charge of and responsible for all of the financial records of the company. She testified that station managers are authorized to do nothing with the money collected at the stations other than to deposit it in a checking account. She testified that approximately $9,000 from the receipts of the station at 21st and Moundview managed by the defendant was missing and that the bank deposits for the three days prior to defendant’s disappearance were never made. She further testified that she knew and recognized the defendant’s signature on the three daily reports in question. She related the procedure used by the company in handling the daily receipts. The manager is required to make deposits of receipts at Southwest State Bank. Then the manager is to advise the business office as to the deposits by mail or personal delivery of the deposit slips. Employees of the office verify the deposit slips, check the deposits for error, and send them on to the computer room. The deposits are entered into the computer and then the deposit slips are placed in the company’s files. Ms. Pence, as comptroller of the company, supervises the making and keeping of business records. She identified three exhibits as bank statements received from the Southwest State Bank which show deposits made to Quality Oil’s account during the month of September 1979. The bank statements showed deposits for all days’ receipts except for September 14, 15, and 16.
When Ms. Pence suspected the cash receipts for September 14, 15, and 16 had not been accounted for, she requested the bank statements to verify the deposits which confirmed that no deposits had been made on September 14,15, or 16. She testified that the bank statements are records received in the normal course of business. Defense counsel objected to the admission of the bank statements on the basis that they were hearsay. At the close of the preliminary hearing, defendant’s counsel moved to dismiss, pursuant to K.S.A. 22-3208, on the basis that the admissible evidence presented at the preliminary hearing was not sufficient to show probable cause. The court found probable cause and bound defendant over for trial.
Defendant subsequently filed a motion to dismiss with the trial court, pursuant to K.S.A. 22-3208. Defendant contended, in substance, that the finding of probable cause at the preliminary hearing was based on inadmissible hearsay and, if the hearsay evidence had been excluded from consideration, there would be insufficient evidence to bind defendant over for trial. The trial court held that the bank statements were properly admitted at the preliminary hearing and that, in any event, strict adherence to the rules of evidence is not required at a preliminary hearing. The case then proceeded to trial by jury and defendant was convicted of felony theft. Defendant appealed, claiming that the trial court improperly overruled his motion to dismiss.
The Court of Appeals held that the bank statements introduced at the preliminary hearing were inadmissible and not within the statutory exceptions to the hearsay rule found at K.S.A. 60-460(m), business records, or K.S.A. 60-460(n) absence of entries in business records. The Court of Appeals reasoned that, although the bank statements admitted were made in the regular course of the bank’s business, they could not be admitted because no representative of the bank was present to testify as to their preparation. In arriving at that conclusion, the court relied on State v. Guhl, 3 Kan. App. 2d 59, 588 P.2d 957, rev. denied 225 Kan. 846 (1979).
The Court of Appeals then considered the question whether the hearsay evidence, although technically inadmissible at trial, could be admitted and considered in determining probable cause at a preliminary examination. The opinion noted that the rules of evidence have traditionally been relaxed at a preliminary hearing and hearsay has been held to be permissible. It relied on Syllabus ¶ 2 of McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761 (1929), which states as follows:
“It is not necessary that there should be the same formality or strict compliance with procedure and the rules of evidence in a preliminary examination as upon the final trial of the accused.”
The Court of Appeals noted a possible conflict between this holding in McIntyre and K.S.A. 60-402 which provides:
“60-402. Scope of rules. Except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation, the rules set forth in this article shall apply in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced.” (Emphasis supplied.)
The Court of Appeals rejected defendant’s contention that the language of K.S.A. 60-402, effective January 1, 1964, was intended by the legislature to prevail over existing case law concerning the rules of evidence to be applied in a preliminary examination. The Court of Appeals then held that, so long as there is a substantial basis for crediting the hearsay, it may be relied upon and form the basis for a probable cause finding in a preliminary hearing. The Court reasoned that, in all probability, the bank statements and evidence given by the witnesses were accurate and reliable even though hearsay. It concluded that the trial court did not err in the admission of this evidence at the preliminary examination. We granted the defendant’s petition for review in order to resolve the uncertainty in the law of this state as to the application of the rules of evidence to a preliminary examination in a felony case.
As noted above, the basic issue in the case is whether the trial court erred in denying defendant’s motion to dismiss prior to trial on the basis that the evidence presented by the prosecution at the preliminary hearing was not sufficient to show probable cause. There are two questions which we must consider in determining this issue: (1) To what extent may inadmissible hearsay be relied upon and form the basis for a finding of probable cause at a preliminary hearing held pursuant to K.S.A. 22-2902? and (2) Was the State’s evidence presented at the preliminary hearing relating to the bank records admissible and to be considered as a basis for the court’s probable cause finding? We will consider each of these questions separately.
For many years prior to the adoption of the Kansas Code of Criminal Procedure in 1970, it was the recognized rule in this state that it is not necessary there should be the same formality or strict compliance with procedure and the rules of evidence in a preliminary examination as upon the final trial of the accused. The following cases support this proposition: Redmond v. State, 12 Kan. *172 (1873); State v. Bailey, 32 Kan. 83, 3 Pac. 769 (1884); McIntyre v. Sands, 128 Kan. 521; State v. Willhite, 161 Kan. 113, 166 P.2d 562 (1946); State v. Earley, 192 Kan. 167, 386 P.2d 189 (1963). The rule was required because, during the early years of our judicial history, criminal preliminary proceedings were generally heard by untrained justices of the peace, judges not learned in the law, who were without knowledge and understanding of the rules of evidence. In this judicial environment, a strict compliance with the rules of evidence followed by district judges in the trial of a felony case could not reasonably be expected. For that reason, the Supreme Court at an early date adopted the principle that it was not necessary that the same strict rules of evidence be applied in a preliminary examination as at the final trial of the accused.
In 1963, the legislature enacted the Kansas Code of Civil Procedure (K.S.A. 60-101 et seq.). K.S.A. 60-402, which is set forth above, provides in substance that the evidentiary rules set forth in the code shall apply in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced. It cannot be denied that a prelimi nary examination in a criminal case is a proceeding conducted by or under the supervision of a court in which evidence is produced. Since the enactment of K.S.A. 60-402, this court has stated that the statutory rules of evidence are designed to have application in every proceeding both criminal and civil conducted by or under the supervision of a court, in which evidence is produced, except to the extent that they may be relaxed by other procedural rule or statute applicable to a specific situation. State v. Wright, 194 Kan. 271, 398 P.2d 339 (1965); and State v. Darling, 197 Kan. 471, 477, 419 P.2d 836 (1966). It must be noted, however, that following the enactment of the rules of civil procedure, the supreme court in Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P.2d 269 (1970), at page 95, quoted McIntyre v. Sands, 128 Kan. at 523, to the effect that it is not necessary that there should be the same formality or the strict compliance with procedure and rules of evidence in a preliminary examination as upon the final trial of the accused. Thompson involved a civil action for malicious prosecution and false arrest and the issue as to the application of the rules of evidence to a preliminary hearing was not directly before the court in a criminal case.
In a recent decision of this court, State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), Justice Lockett discussed in some depth the nature and purpose of a preliminary examination and stated on page 172 of the opinion that, “The quality of the evidence to obtain the complaint/information is no longer sufficient during the preliminary examination. Only evidence admissible in the trial of the defendant is to be considered by the magistrate.” Later in State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983), where the issue involved was the admissibility of the report of a forensic examiner under K.S.A. 1982 Supp. 22-2902a, the court quoted from State v. Jones and on page 929 stated that, “Only evidence admissible in the trial of the defendant is to be considered by the magistrate.” However, it was not until the opinion of the Court of Appeals in this case that the question of the application of K.S.A. 60-402 to a preliminary examination was directly presented to an appellate court.
After considering all of the authorities cited above and the clear and unequivocal language of K.S.A. 60-402, we have concluded that the rules of evidence contained in the Kansas Code of Civil Procedure (K.S.A. 60-401 et seq.) are to be applied in a preliminary examination conducted pursuant to K.S.A. 22-2902, except to the extent they may be relaxed by other court rules or statutes applicable to a specific situation. Counsel have not directed our attention to any procedural rule or statute which would have the effect of making the rules of civil procedure inapplicable to a preliminary hearing in a criminal case. In reaching this conclusion, we have also considered the great advancement in the capability and expertise of the magistrates who customarily conduct preliminary hearings in criminal cases today. The office of justice of the peace has been abolished. In Kansas today in every judicial district we have district judges and associate district judges, qualified in the law, and nonlawyer district magistrate judges in our more sparsely populated areas. In recent years, training programs have been instituted in this state on a statewide basis for the nonlawyer magistrate judges. They are well attended and well received, particularly by those magistrates new at their jobs. Magistrates who are not attorneys are required to take and pass an examination on the law and be certified by the supreme court as qualified before they may sit as such. We believe that today the judges in Kansas who conduct preliminary examinations are in a position where they can apply the statutory rules of evidence without great difficulty.
We also think it important that, since the old rule was adopted, there have been great changes in the concept of due process of law. Today preliminary examinations are conducted in a way to insure that both the rights of the State and the rights of the accused are protected. The application of the Kansas rules of evidence in a preliminary examination will help to accomplish that result. We hold that the rules of evidence under the Kansas Code of Civil Procedure set forth in K.S.A. 60-401 et seq. are to be applied in a preliminary hearing in a criminal case. We find that the Court of Appeals was in error in this case in holding that the court which conducted the preliminary hearing of the defendant was not required to apply the rules of evidence pertaining to hearsay evidence.
We turn now to the question whether the court erred at the preliminary hearing in admitting and considering on the issue of probable cause the State’s evidence relating to the bank records which showed that defendant Cremer had not deposited at the bank the receipts of the filling station in the amount of approximately $9,000. The issue squarely presented is whether or not the bank records discussed above were admissible under the exceptions to the hearsay rule contained in K.S.A. 60-460(m) and 60-460(n) which provide as follows:
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness;
“(n) Absence of entry in business records. Evidence of the absence of a memorandum or record from the memoranda or records of a business of an asserted act, event or condition, to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if the judge finds that it was the regular course of that business to make such memoranda of all such acts, events or conditions at the time thereof or within a reasonable time thereafter and to preserve them.”
As noted above, the Court of Appeals held that the bank records showing an absence of deposit of money by the defendant were not admissible at the preliminary hearing, because the prosecution failed to lay a foundation concerning the record keeping process at the Southwest State Rank. We have concluded that the court at the preliminary examination ruled correctly in admitting the bank’s statements under K.S.A. 60-460(m) and (n) and that the Court of Appeals was in error in ruling to the contrary. In Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. 646, 556 P.2d 198 (1976), it was held that K.S.A. 60-460(m) does not require that the custodian of business records be called to lay the foundation facts for their admission into evidence. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. The policy of this section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness. (State v. Beasley, 205 Kan. 253, 469 P.2d 453 [1970], cert. denied 401 U.S. 919 [1971].)
In this case, the evidence was undisputed that daily report forms were found at the filling station which showed receipts from the sale of gasoline for September 14, 15, and 16, 1979, in the amount of approximately $9,000. No money was found at the station. Each of these daily reports was signed by the defendant Cremer and thus was evidence to show that the defendant had in his possession funds of Quality Oil Company in that amount on September 17, 1979. A search was immediately begun to determine whether or not the money had been paid over or deposited in the Quality Oil Company account at Southwest State Bank. Virginia Pence, Quality Oil’s comptroller, who was in charge of and responsible for all of the financial records of the company, testified without equivocation that the $9,000 was missing and that bank deposits for the three days’ receipts were never made. She testified that the normal procedure was for employees of the office to verify any deposit slips and deliver them to the computer room where the records are entered into the computer. Ms. Pence, as comptroller, supervised the making and keeping of the business records. The reasonable inference from her testimony is that she found no deposit slips or any other records in the files of the company to show what happened to the money. She requested bank statements from Southwest State Bank to determine if the bank records showed any deposits had been made. These statements showed clearly that no deposits had been made on September 14, 15, or 16, 1979, and thus the $9,000 was not accounted for. These bank statements were made and received in the regular course of a business at or about the time of the act, conduct or event recorded. It was up to the court at the preliminary hearing to determine whether the sources of information from which they were made and the method and circumstances of their preparation were such as to indicate their trustworthiness. It cannot be denied that the entries contained in bank statements are generated by the owner of the account. Bank statements are relied on every day in the business world to verify the account owner’s financial transactions. We have no hesitancy in holding that bank statements made in the regular course of business and presented to the owner of the account as a record of account transactions are a trustworthy source of information and may be admitted under K.S.A. 60-460(m) as a part of the financial records of the owner of the account.
We also have concluded that K.S.A. 60-460(n), pertaining to the absence of entries in business records, is applicable in this case. The offense in this case was committed in Topeka on or about September 17, 1979. The defendant departed from the city and a complaint was filed on September 21, 1979. The sheriff had difficulty in locating the defendant but was finally able to do so, and a warrant for his arrest was served in October of 1981. The preliminary examination was held on January 26, 1982, more than two years after the money disappeared. The comptroller of the company testified, in substance, that the missing money had never been discovered or accounted for. If a deposit of the money had been made by the defendant, the business office of Quality Oil in the regular course of business would have made a record of the deposit or receipt of the $9,000 and would have preserved the record in its files. The fact that there was an absence of such an entry in the records of Quality Oil would be competent evidence under K.S.A. 60-460(n) to show that no deposit was made. We hold that the trial court did not err in holding that the evidence presented at the preliminary hearing was sufficient to show probable cause that the crime of felony theft had been committed and that defendant Cremer had committed the crime. The court was justified in binding the defendant over for trial on the charge of felony theft.
We affirm the judgment of the district court. The judgment of the Court of Appeals is also affirmed, although not for the reasons stated by the Court of Appeals in its published opinion. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal from a jury verdict wherein the defendant was found guilty of first-degree murder of his wife in violation of K.S.A. 21-3401.
James E. Taylor, the defendant, testified that on Friday, May 28, 1982, he and his wife, Shirley Ann Taylor, drove in the defendant’s automobile from Salina to the Brookville Hotel, Brookville, Kansas, for dinner. The Taylors entered the Brook-ville Hotel at approximately 7:30 p.m., ate dinner and departed around 8:30 p.m. The Taylors returned to the location in Salina where Mrs. Taylor had parked her car prior to dinner. After departing the defendant’s automobile, Mrs. Taylor planned to shop prior to meeting someone, and then go camping over the week-end. Defendant returned to the Salina residence. The defendant left the residence later, drove around town, purchased some gasoline at a convenience store, and then returned to the residence where he worked on his automobile. Mr. Taylor was seen by a friend and the clerk at the convenience store during this period of time. At approximately midnight the defendant drove to Topeka where he was to work the next day.
Mr. Taylor was unable to contact his wife in Salina by phone from Topeka. During the week-end the defendant phoned family and friends in search of his wife. Saturday, May 29, 1982, the defendant returned to Salina where he attempted to locate his wife.
On May 31, 1982, the defendant phoned the Salina Police Department to report his wife had been missing for several days. Defendant stated he and his wife had dined at the Brookville Hotel Friday evening. He had last seen her when he dropped her off at her car in Salina at approximately 9:00 p.m.
The next day the defendant phoned the Salina Police Department to see if any progress had been made in locating the missing wife. Det. Galen Marble talked to the defendant at this time. That evening Det. Marble, while enroute to the defendant’s residence to obtain more information, discovered Shirley Taylor’s automobile parked on a Salina street. Det. Marble contacted the defendant at his home, obtaining additional information to complete the missing person’s report. Det. Marble then told the defendant he had located the wife’s car in Salina. In separate cars, Marble and the defendant drove to the location where Mrs. Taylor’s automobile had been found. The defendant told Det. Marble that the car had originally been parked in a different location when he last saw his wife Friday night.
On June 2, 1982, the defendant was requested to come to the police station. From 12:10 p.m. to 5:45 p.m. the defendant was questioned about his wife’s disappearance in three separate sessions. During the last session, the defendant was informed of his Miranda rights prior to questioning. Defendant returned home that night. On June 3, 1982, the defendant was again requested to return to the police department. Defendant was warned of his Miranda rights and questioned by a different group of officers.
On June 4, 1982, Shirley Taylor’s bullet-riddled body was discovered in a ditch two miles northwest of Brookville, Kansas, by a Saline County highway department employee. The body was covered by grass native to the area. The defendant was formally arrested June 4, 1982, after the discovery of the body. During investigation after the defendant’s arrest, searches were conducted of the scene, defendant’s automobile, the Taylor residence, a cabin at the Scott County Lake, and the defendant’s motel room in Topeka where his clothing was seized. Nothing of evidentiary value was recovered at the scene. Neither the victim’s purse nor the murder weapon were ever found.
An autopsy conducted later on the body revealed Shirley Taylor’s death was caused by three gunshot wounds to the head and throat region which produced massive brain injury. A fourth shot grazed the right side of the victim’s neck. From the contents of her stomach, the pathologist determined Shirley Taylor died from one to two hours after ingestion of her meal at the Brook-ville Hotel.
At the trial, a K.B.I. firearms expert testified that a bullet recovered from the body was a .22 caliber. The defendant had previously told the police he had owned a .22 caliber pistol but had sold it six weeks prior to June 3, 1982, to an unknown Mexican male in the parking lot of a Garden City discount store. The victim’s brother-in-law testified he had seen the gun at the Scott County Lake cabin on May 22,1982. Defendant testified he was in error as to the date of the sale; the gun was actually sold about one week prior to the wife’s death to the unknown Mexican male.
Evidence was introduced that the Taylors were having marital problems. Mrs. Taylor was contemplating obtaining a divorce from the defendant. Two notebooks, one prepared by each of the Taylors at a prior marriage encounter session, were admitted into evidence over the defendant’s objection.
The jury found the defendant guilty of murder in the first degree; he appeals this conviction.
Prior to trial, defendant moved for a change of venue. On August 20,1982, a pretrial hearing was held. Defendant called as witnesses representatives of two local radio stations, one local television station, and a newspaper of general circulation in the Saline County area. Copies of press coverage of the events were introduced into evidence by the defendant. In addition, the defendant submitted eighteen affidavits from citizens living in Saline County, all expressing the opinion it would be impossible for the defendant to receive a fair and impartial trial in Saline County. Each affidavit submitted was a copy reproduced from one original with blanks for the date and signature of the person signing.
When a change of venue is requested it is incumbent upon the defendant to satisfy the court there exists in the county where the trial is scheduled a prejudice so great against the defendant that he cannot receive a fair and impartial trial in that county. K.S.A. 22-2616(1). The defendant must show prejudice exists in the community, not by speculation, but as a demonstrable reality. State v. Shaffer, 229 Kan. 310, 624 P.2d 440 (1981). The State is not required to produce evidence to refute affidavits obtained by the defendant. State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977).
We have reviewed the newspaper clippings and copies of the radio and TV news releases submitted by the defendant to the trial court. The stories are factual representations of each newsworthy occurrence from the report of a missing person, and the finding of a body, to the arrest and sentencing of the defendant after trial. The defendant has been unable to demonstrate anything other than objective and factual reporting by the press.
The defendant does establish that there was extensive coverage by the media in the local area of each event as it occurred. The publication of articles in a local newspaper and coverage by local radio or TV do not per se establish prejudice. Mass media coverage and the dissemination of the news is a reality. We accept the fact that informed jurors are aware of newsworthy events that occur locally, nationally and world-wide. The law does not require disqualification of an informed juror who is able to give the defendant a fair and impartial trial.
It has long been the law of Kansas that a change of venue in a criminal case lies within the sound discretion of the trial court. When the jury was selected in this case, not one juror was disqualified for cause. There has been no showing there existed such prejudice that the defendant was denied a fair trial. The trial court’s refusal to grant a change of venue is supported by competent evidence and there has been no showing of prejudice to the substantial rights of the defendant.
Defendant contends that statements made to police officers on June 1 through June 3, 1982, were not admissible. Defendant claims he was not advised of his right to remain silent until the afternoon of June 2, 1982, and as a result, information gained prior to the Miranda warnings is inadmissible. He also argues evidence acquired after the Miranda warnings as a result of pre-Miranda statements is inadmissible as “fruit of the poisonous tree.”
On May 31, 1982, defendant contacted the Salina police to report his wife missing. On June 1, 1982, Det. Marble contacted defendant at his Salina home to complete the missing person report. After Marble obtained the information, he informed the defendant that the wife’s car had been located. On June 2, 1982, defendant was requested by Marble to come to the police station. From 12:10 p.m. until 5:45 p.m. the defendant was questioned three separate times. It was at the last questioning June 2, 1982, that defendant was first informed of his right to remain silent. On June 3, 1982, about 4:00 p.m., at the request of the police, defendant returned to the police station, was warned of his rights and again questioned by authorities. During the different interviews with the defendant, as new information developed, the defendant was questioned by the police about that information.
Though the sequence of events is clear, we are unable to determine from the record what statements the defendant made during a particular session and what information was developed from that statement. Prior to the discovery of the wife’s body, the police obtained from the defendant information needed to assist in locating Mrs. Taylor, to discover if the reason for Mrs. Taylor’s disappearance was due to marital problems or foul play.
This court has recognized the distinction, drawn in Miranda, between custodial interrogation and investigatory interrogation. By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way. Investigatory interrogation means the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Price, 233 Kan. 706, 712, 664 P.2d 869 (1983).
When the defendant reported his wife as missing, he set in motion the fact-finding process and efforts by the authorities to locate the wife. When the authorities sought additional information about the missing person, the questioning occurred at the defendant’s home or at the Salina Police Department. Whenever questioning occurred outside the defendant’s home, the defendant drove his own automobile or rode in a friend’s automobile to the area where the questioning occurred. After each questioning session, the defendant was allowed to leave without restraints on his movement. As officers became suspicious of foul play, the defendant was warned of his constitutional rights under Miranda. In an effort to hide the death of the wife or assist in a genuine effort to locate the missing wife, Mr. Taylor cooperated with the officers and supplied the requested information.
Law enforcement officers routinely investigate missing person reports. The officers, in performing their duty, obtain information necessary to locate the missing person. In performing the investigation, police officers must obtain necessary information from individuals not under restraint. Questioning to determine the reason for a person to be missing, in an effort to locate the missing person, is a fact-finding process not affected by Miranda. Under the facts of this case, the defendant’s constitutional rights were not violated.
Defendant claims that the introduction into evidence of a notebook containing statements written by the deceased wife was error. During the week-end of April 24 and 25, 1982, the defendant and his wife attended a marriage encounter session in Kansas City. The Taylors were required to keep a notebook at the session, and write letters to each other during the encounter week-end. The police officers obtained the notebooks while searching the Taylor residence June 6, 1982.
Prior to the discovery of his wife’s body, the defendant had admitted that there were problems with the marriage relationship. Defendant claimed that his wife had determined not to seek a divorce and the marriage problems had been reduced to a point that the marriage was no longer floundering. The wife’s notebook contradicted the picture painted by the defendant. The wife wrote in her notebook she attended the encounter sessions to help prepare the defendant for divorce. Shirley Taylor wrote of feelings of love and affection for the defendant, but that the relationship of marriage was no longer possible for them. Contained in a letter to her husband was a statement of her fear of the defendant’s temper. The wife wrote:
“One of the things I did not tell you that I am not open about you is your temper or anger. Not only do I not know how to relate to your outbursts, I must admit quite frankly that you intimidate me when you are angry, & sometimes you just scare me to distraction. I know quite rationally that your ‘tantrums’ are not directed at or caused by me. However, when these situations occur, I freak out. I feel panicky, sad, unable to cope, ashamed, and very insecure at these times.”
The State offered both of the Taylors’ notebooks at the close of its case-in-chief with all other exhibits. Defendant objected to the admission of Shirley Taylor’s notebook into evidence on the grounds of relevancy, materiality, remoteness and hearsay. The court deferred ruling on the admissibility of the notebook until the conclusion of the trial. Defendant admits that his notebook was properly used to impeach him when cross-examined by the State.
Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. Cases have allowed prior conduct to be admitted into evidence where a family relationship existed. In State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), Crossman, the victim’s stepfather, was convicted of two counts of indecent liberties with a child and one count of aggravated sodomy. The trial court allowed testimony of other instances of sexual misconduct between the defendant and the child to establish the relationship of the parties and the existence of a continuing course of conduct between the parties. In State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978), Phipps was convicted of first-degree murder when he beat to death his father-in-law. The victim’s sister was allowed to testify that the deceased had stated the defendant was running his family life and he disapproved. In State v. Fenton, 228 Kan. 658, 620 P.2d 813 (1980), Fenton was convicted of first-degree murder after shooting his wife which resulted in her death. A Mrs. Blunk testified she had heard the defendant threaten to kill his wife ten months earlier. In State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982), Wood was convicted of second-degree murder after shooting his wife with a shotgun. The wife’s mother was allowed to testify of conversations where the victim stated the defendant had beaten her and expressed fear that the defendant would kill her. Edward Ketner testified four months prior to the killing he saw the defendant throw his wife down and drag her through the living room while holding a loaded .22 caliber gun. Ketner also testified the defendant, at a prior time, stated “he would blow his old lady’s head off.” In State v. Green, 232 Kan. 116, 652 P.2d 697 (1982), Green was convicted of first-degree murder of his wife. Evidence of marital discord in the weeks preceding the victim’s death was present, including an incident where Green had threatened to send his wife “back to Africa in a pine box.” Neighbors testified that the victim was afraid of Green. In State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), Knapp was convicted of stabbing his ex-wife and shooting a neighbor woman. The court admitted into evidence portions of his deceased ex-wife’s prior testimony from the divorce trial of an earlier break-in at the victim’s residence.
The statements in the notebook were not inadmissible hearsay because they were not introduced to prove the truth of the matters stated, such as whether the defendant had a bad temper. K.S.A. 60-460. The significance of the statements lies in the fact that they were made. State v. James, 223 Kan. 107, 108-09, 574 P.2d 181 (1977). They show Mrs. Taylor believed the marriage had problems, that there was indeed marital discord. State v. Phipps, 224 Kan. 158.
The riile in Kansas is that in a case of marital homicide, evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is competent as bearing on the defendant’s motive and intent. The court did not err in admitting into evidence Shirley Taylor’s letters which contained statements of marital discord and her fear of the defendant’s temper since they showed the relationship of the parties and their conduct in that relationship.
The defendant finally contends that there was insufficient evidence to convict him of first-degree murder.
There is little, if any, doubt that Shirley Taylor was murdered. Three bullets were shot into her head. The only question is the identity of the murderer. The evidence presented against the defendant established that Shirley Taylor’s body was found two miles from the Brookville Hotel where the Taylors had eaten dinner earlier in the evening. The fo'od in Shirley Taylor’s stomach was eaten one to two hours before she died, and was the same food eaten at the Brookville Hotel. The defendant was not seen for several hours after the Brookville dinner. One of the bullets in the body was a .22 caliber. A .22 caliber revolver had been seen at the defendant’s cabin six days before the murder, a fact about which the defendant had initially lied. The Taylors were experiencing marital problems. The defendant did not want the divorce his wife desired. Taylor suspected his wife of having an extramarital affair and exhibited signs of jealousy by hiding in a closet and planting an electronic bugging device in their bedroom.
The defendant claims since the conviction is based on circumstantial evidence, the circumstantial evidence must be so strong as to exclude every reasonable hypothesis except that of guilt of the defendant. State v. Ragland, 170 Kan. 346, 226 P.2d 251 (1951). It is the prerogative of the jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence; a trial judge in passing on a motion of acquittal should consider the evidence, keeping in mind the prerogative of the jury, and if he should conclude a reasonable mind might fairly decide a defendant guilty beyond a reasonable doubt of the crime charged, he must submit the case to the jury. State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977). When considering the sufficiency of circumstantial evidence to sustain a conviction of a crime on appeal, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and the trial court. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
The trial court was justified in overruling the defendant’s motion for judgment of acquittal because a reasonable mind might fairly decide the defendant was guilty beyond a reasonable doubt of the crime charged.
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The opinion of the court was delivered by
Prager, J.;
This case involves a judicial review of orders of the state corporation commission (KCC) granting the Kansas Electric Power Cooperative, Inc. (KEPCo) a limited certificate of convenience and authority to transact business in this state as a public utility. In the same proceeding, KEPCo also requested authority to purchase an undivided 17% interest in the Wolf Creek Generating Station, a nuclear power plant then being constructed by Kansas Gas and Electric (KG&E) and Kansas City Power and Light Company (KCP&L). The KCC granted authority for the sale of the undivided 17% interest in the Wolf Creek plant to KEPCo. It also granted KEPCo a limited certificate of convenience subject to certain conditions over the strong objections of KEPCo.
The procedural history of the case is essentially as follows: KEPCo filed its application with the KCC for a limited certificate of convenience on October 13, 1979, along with its application to purchase an undivided 17% interest in the Wolf Creek Station. On June 9,1980, the matter came on for hearing before the KCC. Eighteen days of hearings were conducted and, on August 11, 1980, the record was closed and the matter was taken under advisement upon the submission of briefs by the parties. On October 22, 1980, the KCC issued its order granting KEPCo a limited certificate of convenience and authority to do business as an electric utility in the State of Kansas and to purchase an undivided 17% interest in the Wolf Creek generating station. The KCC also authorized KG&E and KCP&L to sell to KEPCo an undivided 17% ownership interest in the Wolf Creek station. The certificate granted KEPCo by this order was subject to the following conditions:
(1) The KCC directed KEPCo to provide a wider distribution, of “hydro peaking power” which was to be purchased by KEPCo through the Southwestern Power Administration of the Department of Energy.
(2) The KCC required the separation of KEPCo from its close relationship with Kansas Electric Cooperatives, Inc. (KEC) by prohibiting the same individuals from being officers and trustees of both organizations and prohibiting compensated employees of KEC from being members of the KEPCo board of trustees.
(3) The KCC required KEPCo to submit to the KCC, for its review and approval, a plan for the establishment of a sinking fund sufficient to defray KEPCo’s portion of the expenses of decommissioning the Wolf Creek plant based upon the cost projections submitted by KG&E at the hearing.
(4) The KCC required KEPCo to formulate and submit to the KCC a projection of anticipated expenses for the cost of purchase of replacement power due to unscheduled outages at the Wolf Creék plant, and a plan for accruing a contingent fund sufficient to cover such expenses. A number of other conditions were imposed which are not involved in the appeal and which need not be considered.
KEPCo, KG&E, and KCP&L then perfected appeals to the district court. KG&E and KCP&L subsequently dismissed their appeals. The matter was heard before the district court, and on June 14, 1983, the trial court entered its memorandum decision and order. The district court held unlawful those portions of the KCC order (1) requiring a wider distribution of “hydro peaking” electric power than that proposed by KEPCo; (2) forbidding the same individuals from serving as officers, directors, and compensated employees of both KEC and KEPCo; (3) requiring KEPCo to submit a plan for the establishment of a sinking fund sufficient to decommission Wolf Creek at the end of its useful life; and (4) requiring KEPCo to submit proposals for the establishment of a contingency fund for the purpose of purchasing replacement power due to outages at the Wolf Creek plant. The KCC has appealed those orders of the district court holding unlawful those portions of the KCC’s order just mentioned. KEPCo filed a cross-appeal contending the district court erred in remanding the proceeding to the KCC instead of approving the certificate after vacating the conditions it had found to be unlawful.
At the outset, we should note the scope of review of an order of the KCC on appeal to the district court. The basic principles governing the scope of review are set forth in Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 595 P.2d 735, rev. denied 226 Kan. 792 (1979), as follows:
“K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the older is ‘lawful’ or ‘reasonable.’ Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission^ decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).” pp. 380-81.
The district court found, arid the parties agree, that the KCC has the authority to impose lawful, reasonable conditions on the granting of a certificate of convenience. The essential questions on the appeal involve a determination of the limits imposed on the commission’s power to impose such conditions and a decision as to whether the four conditions imposed exceed those limits.
The district court, in its memorandum decision, correctly stated that the limits on this power are set by the standard of review of the court. Any condition imposed must be both lawful and reasonable. To be “lawful” the condition must be within the statutory authority of the KCC and all statutory and procedural rules must be followed. A condition is “reasonable” if based upon substantial, competent evidence. With these principles in mind, we now consider each of the conditions imposed by the KCC to determine whether the. condition is both láwful and reasonable.
Condition No. 1 — Requiring a wider distribution of SPA hydro peaking power
The factual background necessary to determine the validity of this condition is set forth in the memorandum decision of the district court in the following language:
“In 1973, the Kansas Electric Cooperatives, Inc. (hereinafter referred to as ‘KEC’), an organization of Kansas rural electric cooperatives, established a ‘Power and Energy Department’ to explore alternate power supply sources for these ‘RECs.’ . . . Various alternatives were examined, including equity interests in Wolf Creek and Jeffrey Energy Center, and purchase of hydro peaking power from the Southwestern Power Administration, a branch of the United States Department of Energy. . . .
“The costs incurred by KEC in its search for alternatives were assessed against tire member RECs of KEC pursuant to contracts entered into between the member RECs and KEC. . . .
“In February, 1975, KEPCo was formed by incorporation and in March, 1976, it ‘succeeded to the position formerly occupied by the KEC Power and Energy Committee.’ . . . However, not all members of the KEC are also members of KEPCo. Certain members, such as Intervenors Kaw Valley and NemahaMarshall either never joined KEPCo or later withdrew from KEPCo’s membership, apparently due to an unwillingness to participate in the Wolf Creek venture or to sign forty year power requirements contracts with KEPCo. It has apparently become KEPCo’s policy at some point to tie access to SPA power to Wolf Creek participation and the requirements contracts. . . .
“On April 19, 1979, KEPCo entered into a contract with the United States through the Department of Energy as represented by the Administrator of the Southwestern Power Administration for the purchase of 90 megawatts of hydro peaking power. . . . On August 2, 1979, the SPA announced the allocation of 90 megawatts of hydro peaking power to the KEC in the Federal Register Volume 44, No. 150. . . .
“The Commission made the following findings based upon its review of the evidence:
“[Tjhose cooperatives which seek a portion of this SPA hydro peaking power are preference customers for such power under the Flood Control Act of 1944. Further, the record shows that each of them has made a substantial financial conti-ibution to KEC to finance the acquisition of this power. *** It is also clear that the original allocation of this SPA power was to KEC, of which Kaw Valley and Nemaha-Marshall were and are members. *** It was a policy decision on the part of KEPCo which imposed upon distribution cooperatives seeking a share of this SPA hydro peaking power the conditions that they must participate in the acquisition of an ownership interest in the Wolf Creek plant. . . .
“Because Kaw Valley and Nemaha-Marshall made ‘substantial’ contributions - $23,178.75 and $18,042.50 respectively . . . the Commission concluded that the public convenience and necessity would be promoted by authorizing KEPCo to purchase and resell the 90 megawatts of hydro peaking power subject to the condition that all Kansas distribution cooperatives who are members of KEC and who have paid assessments to KEC to support the efforts of the Power and Energy Committee be allowed, without regard to participation in Wolf Creek or Membership in KEPCo, ‘a percentage of this capacity, and the contractually associated energy, which equals the percentage of KEC’s summer non-coinci■dent peak load which each distribution cooperative represented in 1979.’ The energy was to be made available at KEPCo’s cost plus an increment to cover KEPCo’s administrative and general expenses.”
The district court concluded that the question of the distribution of SPA hydro peaking power involved matters which should have been excluded from consideration by the KCC in granting a certificate of convenience, because the entire SPA hydro peaking power matter is purely a contractual dispute between private corporations affected with a public interest and, thus, were outside the jurisdiction of the KCC. The trial court also noted that Kaw Valley and Nemaha-Marshall may be allowed to participate in SPA power without regard to participation in Wolf Creek and KEPCo; but, if they are so entitled, it is because the various contracts involved give them that right. This determination the trial court found to be judicial in nature. The trial court reasoned that, when the KCC ordered a reallocation of SPA power in exchange for the grant of a certificate of convenience and necessity, it, in effect, demanded the right to decide a contract dispute between KEPCo and two or more nonmember rural electric cooperatives. The trial court concluded that, in so doing, the KCC exceeded its authority, and therefore, the condition which required a wider distribution of SPA hydro peaking power was unlawful.
We have considered the issue and have concluded that the district court was correct and that Condition No. 1, involving SPA hydro peaking power, was unlawful for the reasons stated by the district court.
Condition No. 2 — Requiring limitations on KEPCo’s corporate organization
The KCC, as a condition to granting the certificate, prohibited the same individuals from being officers and trustees of both KEPCo and KEC and prohibited compensated employees of KEC from being members of KEPCo’s board of trustees. In its memorandum decision, the district court noted that KEPCo attacked these restrictions (1) as infringements of the statutory rights conferred upon electric cooperatives and their members to elect their representatives pursuant to K.S.A. 17-4601 et seq.; (2) as attempts to interfere with the management of a corporation and thus outside the scope of-the KCC’s power, authority, and jurisdiction; and (3) as not based upon substantial competent evidence.
The trial court noted the provisions -of the Electric Cooperative Act (K.S.A. 17-4601 et seq.) which provide that an electric cooperative must have, as officers, a president, vice-president, secretary, and treasurer who must be elected by and from the board of trustees. It noted that each trustee of an electric cooperative must be a member of the cooperative. Electric cooperatives are specifically made subject to the control and jurisdiction of the KCC (K.S.A. 17-4630). In discussing the relationship of KEPCo and KEC, the court stated as follows:
“KEPCo is a ‘cooperative of cooperatives.’ Its members are 26 electric cooperatives. . . . KEC is a statewide organization of 38 electric cooperatives also operating pursuant to K.S.A. 17-4601 et seq. . . .
“At the time of the Commission’s Order, KEC and KEPCo operated under a ‘shared management’ approach. Each member rural électric cooperative (‘REC’) of KEC and each member REC of KEPCo designated a representative to the respective boards of trustees of KEC and KEPCo. Each of the two boards of trustees then designated members to form executive committees. The KEC executive committee and the KEPCo executive committee formed a ‘joint advisory committee’ which appointed an executive Vice-president who served as the chief executive officer of both KEC and KEPCo. . . .
“The primary bases for the Commission’s restrictions on KEPCo’s organization stemmed from the potential for conflicts of interests arising out of the shared management arrangement and from the perceived need for a full-time chief executive officer for KEPCo. . . . The Commission found evidentiary support for the former concern in part in the testimony of two witnesses. The first was Fred R. Stone, General Manager of Intervenor Kaw Valley Electric Cooperative, who testified that he was asked by Charles Ross, manager of KEC, not to pursue a separate hydro peaking power allocation but to allow the KEC’s Power and Energy Committee to apply for all electric cooperatives. . . . However, the Committee’s successor, KEPCo, later denied Kaw Valley access to the 90 megawatt allocation due to lack of membership in KEPCo or lack of participation in Wolf Creek.
“The other witness, Lloyde H. Goins, General Manager of Intervenor Nemaha-Marshall Electric Cooperative, testified that he also felt misled by certain statements made by Mr. Ross, who was serving the dual function of chief executive officer for both KEC and KEPCo, indicating Ross was pursuing SPA power on behalf of all cooperatives. . . . Because of these occurrences and the Commission’s belief that this type of conflict would recur in the future due to the divergence of goals of KEC and KEPCo, the Commission felt it would be in the public interest to completely separate the managements of the two entities. ...
“The mere existence of a problem and a genuine concern on the Commission’s part, however well founded, cannot give rise to power and jurisdiction. These arise only from legislative grant. A perceived need for action does not give the Commission the power to expand its jurisdiction beyond that grant. Nor does it give the Commission the power to override specific statutory schemes and guidelines contained in other chapters of the Kansas Statutes Annotated.
“K.S.A. 17-4630 subjects KEPCo, as an electric cooperative, to the jurisdiction and control of the Commission. K.S.A. 66-101(a) grants to the Commission ‘full power, authority and jurisdiction to supeivise and control’ public utilities and to do all things necessary and convenient for the exercise of‘such power, authority and jurisdiction.’ However, the extensive enumeration of powers of the Commission and obligations of the public utilities which follows that grant makes it clear that K.S.A. 66-101(a) was not intended as a grant of power to inquire into and restructure every facet of a cooperative’s operations, particularly where other statutes exist which deal with the issue.
“K.S.A. 17-4601 et seq. contains detailed requirements, as outlined above, for the organization of the management of a cooperative. In particular, K.S.A. 17-4612(a) states that the bylaws shall prescribe the qualifications of trustees, ‘other than those prescribed in this act.’ Since an officer must also be a trustee (K.S.A. 17-4614), this applies also to officers. Neither K.S.A. 17-4601 et seq. nor K.S.A. 66-101 et seq. can be fairly read to prescribe the types of restrictions placed on KEPCo’s management and any power somehow derived from K.S.A. 66-131 to impose such restrictions would appear to render K.S.A. 17-4612(a) somewhat meaningless.
“In effect, the Commission sought to impose upon the trustees and officers of KEPCo new and additional qualifications not to be found in either the bylaws or the Electric Cooperative Act. This is an unlawful assumption of legislative power in excess of that granted by statute to the Commission.
“In Kansas Commission on Civil Rights v. City of Topeka Street Dept., 212 Kan. 398, 511 P.2d 253 (1973), where an administrative regulation of the KCCR was harmonized with statutes controlling appeals of its decisions despite an apparent conflict, the court stated as follows:
“In the absence of valid statutory authority, an administrative agency may not, under the guise of a regulation, substitute its judgment for that of the Legislature. It may not exercise its sublegislative powers to modify, alter or enlarge the provisions of the legislative act which is being administered. 212 Kan. at 402.
“The Court is fully cognizant of the Commission’s position on this issue but concludes that the Legislature, having already spoken to the issue of qualification of trustees, is the appropriate body to address the issue at this point. Since the Legislature has given to the members and trustees an authority as fundamental to the operation of a cooperative as the selection of its management, subject only to such other qualifications as may be found in the Electric Cooperative Act and the Public Utilities Act, the Commission should be required to demonstrate specific statutory authority before modifying or enlarging those qualifications.”
We have considered the decision and rationale of the trial court and concluded that the trial court was correct in holding this condition to be unlawful under the circumstances. In our judgment, the condition imposed constituted an unlawful interference with the management of KEPCo. We recognize, of course, that in the future problems could arise involving improper acts of KEPCo’s management because of its close relationship with KEC. In that event, and if unlawful or unreasonable conduct takes place that has an adverse effect on the services provided by KEPCo, then the KCC may consider those issues when they arise. Until that event occurs, however, the officers and members of the board of trustees of KEPCo should be permitted to conduct KEPCo’s affairs, using the best leadership it can find available, including the leaders of the KEC.
Condition No. 3 — Requiring a Decommissioning Sinking Fund
The KCC required KEPCo to submit to the KCC for its review and approval a plan for the establishment of a sinking fund to cover KEPCo’s portion of the expenses of decommissioning the Wolf Creek plant. The district court found this portion of the KCC’s order to be an unlawful invasion of the province of management of KEPCo.and, therefore, beyond the authority of the KCC to impose. In considering this issue, it is important to note the fact that the administrative proceeding involved not only an application by KEPCo for a certificate of convenience and authority to act as an electric public utility, but also involved an application for authority to purchase an undivided 17% interest in the Wolf Creek generating station. In its order, the KCC set forth seven specific conditions regarding the purchase of an undivided 17% interest in the Wolf Creek plant by KEPCo. Condition No. 7 required that KEPCo submit to the KCC for its review and approval a plan for the establishment of a sinking fund sufficient to defray KEPCo’s portion of the expenses of decommissioning the Wolf Creek plant based upon the projections submitted by KG&E. In this regard, KCC in its order made certain findings of fact in regard to the problem of decommissioning a nuclear plant. Finding of fact No. 72 of the KCC, which was adopted by the trial court, stated as follows:
“72. The other issue which is peculiar to nuclear plants is that of decommissioning. When a normal fossil plant reaches the end of its useful life, it is dismantled and sold for salvage. When a nuclear plant reaches the end of its useful life, it appears that no one in the industry knows what will happen. A number of alternatives are currently under discussion. One approach is to entomb the entire plant in concrete right where it stands. A second approach is to fence it off and guard it indefinitely. A third technique that has been proposed is to decontaminate the plant, dismantle it, and ship its constituent parts to an approved site for disposal. ... At the present time, it is impossible to say which, if any, of these three approaches will ultimately be used. The difficulty in determining what will be done with a nuclear plant at the end of its useful life is compounded by the fact that a plant the size of Wolf Creek has never been decommissioned in this country, so literally no one knows how it will be done. As the record clearly establishes, this muddle as to how the Wolf Creek plant will be decommissioned makes the task of estimating the expense of that undertaking difficult at best. There is no source, including the NRC, which can be turned to in order to obtain a reasonable and reliable estimate of the expense KEPCo ratepayers will incur in decommissioning this plant.”
The KCC also adopted findings of fact No. 73 and 74 on the subject of decommissioning which provide:
“73. KEPCo addressed this issue by essentially adopting the approach taken by KG&E. KG&E maintains that approximately one-quarter of the 4.00 percent depreciation rate applied to the Wolf Creek plant represents a provision for projected decommissioning expenses. Over the course of the life of this plant, this provision will generate approximately $400,000,000 to be used for decommissioning expenses. . . . However, since these funds will be undifferentiated from other sources, they will be expended in the normal course of business. Both KEPCo and KG&E acknowledge that under this approach, at the time that the money for decommissioning is needed, each of the owners will have to borrow the funds necessary for decommissioning. . . . Naturally, such an approach will leave the utilities at the mercy of the capital market at the time they need the money, and will force them to pay the market rate which prevails at that time. This adds yet another uncertainty to the decommissioning process, on top of the uncertainties as to the amount of the expense and methodology to be used.
“74. We feel that the record before us clearly supports, and in fact mandates, action by the Commission to remove at least some of the uncertainties associated with the decommissioning process. It is the firm conviction of the Commission that the record demonstrates the necessity of the participating utilities taking positive steps now to ensure that they will have the financial wherewithal to meet the expenses of decommissioning projected by KG&E and KEPCo when the Wolf Creek plant reaches the end of its useful life. It is only by taking prophylactic steps now that the present and future customers of the participating utilities can avoid some of the uncertainties associated with decommissioning. We therefore direct KEPCo to prepare and submit for Commission review and approval a plan for accruing and maintaining a sinking fund, to be used solely to defray its portion of the expenses and decommissioning, based upon KEPCo’s pro rata share of the decommissioning expense as projected by KG&E in this docket. The actual implementation of this plan will not take place until the Wolf Creek plant is in commercial operation.”
KEPCo objected to the sinking fund requirement as an unlawful invasion of the province of management and as not based upon substantial competent evidence and thus unreasonable. The district court found this condition on the granting of a certificate to be both unlawful and unreasonable. The trial court reasoned as follows:
“While the Commission may regulate in the public interest, this was apparently accomplished when it did not find any objection to the provision for decommissioning included in the depreciation expense. When the Commission further ordered the establishment of a sinking fund, it ‘invaded the province of management’ by attempting to direct the investment of KEPCo’s revenues. The Court does not understand the Commission to have found any action or proposal by KEPCo’s management with respect to the investment of its revénues to have been unjust, unreasonable, or in any way harmful to the public interest so as to invoke the police power of the state which underlies all such regulation. It simply substituted its judgment for that of KEPCo’s trustees in an essentially management function. If the Commission should be held to possess the power to assert its influence this far into the management of a utility company absent a finding of harm to the public interest under the current management scheme, it should be so held only upon a clear showing that the Legislature intended the Commission to have such power. This showing is wholly absent and the condition is outside the Commission’s power, authority and jurisdiction.”
The trial court also found that there was no substantial competent evidence in the record to support the decision of the KCC to require a decommissioning sinking fund.
We have concluded that the trial court erred in arriving at this decision and that the condition requiring KEPCo to submit to the KCC for its review and approval a plan for the establishment of a sinking fund to cover KEPCo’s share of the decommissioning expenses was a lawful condition and that there is substantial competent evidence in the record to support the condition imposed. We agree with the KCC that the real question presented is whether the KCC possesses the authority to require a utility to take action necessary to forestall a future problem that will ultimately affect the utility buyers in Kansas, when a utility seeks authority to operate in Kansas as a public utility. We hold that the condition imposed was reasonable and within the authority of the KCC and that in imposing the condition it was taking reasonable preventive steps in an area which directly and immediately affects the public interest and welfare.
In the evidentiary record, we note that KEPCo’s primary witness, David A. Springs, an engineering consultant, indicated that there are two basic methods by which the funds necessary to meet the cost of decommissioning can be accumulated and set aside. One is to increase the utility’s depreciation expense and invest the money in new utility plants. At the time the funds to pay for the decommissioning costs are needed, the utility would have to borrow against the plant to raise the needed funds.
The second approach is to again increase the depreciation expense, but to put it in an interest bearing fund until such time as the money is needed, when it will be available. The trial court correctly noted that this witness did not favor the use of a sinking fund, but strongly felt that investing these monies in utility plants was the best approach. Thus the evidence presented at the hearing showed two methods of meeting the decommissioning expenses, investing in a plant or accruing a fund. While KEPCo favored the investment approach, it was apparent that the KCC was not persuaded. The evidence on this point was not very extensive, but it was sufficient to support the position of the KCC order which ordered the submission and preparation of a plan for the establishment of a sinking fund. That is the only direction which the KCC gave to KEPCo.
Counsel for the KCC in their brief state that, under the order of the KCC, KEPCo may submit along with such a plan any other alternative approaches which KEPCo might wish KCC to consider. Of necessity, KG&E and KCP&L, the major owners of the Wolf Creek plant, would also be required to submit an overall plan in which the three utilities, as owners of the Wolf Creek plant, would be required to participate. In our judgment, the KCC not only had the power to require KEPCo to submit such a plan but would have been derelict in its duty to the public if it had not required the submission of a plan for decommissioning. The record clearly shows that in June and July of 1980, when this hearing was held, the problem of decommissioning a nuclear power plant was an unexplored area in which there had been little experience. Apparently the problem of financing a decommissioning plan for Wolf Creek had not at that time been considered by the Nuclear Regulatory Commission (NRC). The decommissioning of a nuclear plant is a difficult problem which must be considered in the construction of nuclear power plants. New England Coalition v. U.S. Nuclear, Etc., 582 F.2d 87 (1st Cir. 1978).
During the early stages of the development of nuclear technology in the United States, the regulation and control of nuclear power resided exclusively in the hands of the federal government which owned and operated such nuclear facilities as were in existence at that time. The passage of the Atomic Energy Act of 1954,42 U.S.C.A. § 2011 et seq., which established the Atomic Energy Commission and authorized the Commission to regulate and promote the use of nuclear power, marked the first legislative approval of the concept of private ownership and use of nuclear materials for purposes of energy production. In 1959, 42 U.S.C.A. § 2021, a new section, specifically addressed the issue of cooperation between the federal and state governments and delineated limited instances in which state regulation of nuclear materials was proper. The extent of permissible state regulation of nuclear power plants has been a matter of controversy and litigation. See the cases cited in the annotation in 82 A.L.R.3d 751.
The point is that both the federal government, acting through the NRC, and the states, acting through their regulatory commissions, have become vitally interested in all aspects of nuclear power, including the problem of decommissioning a nuclear power plant. From our review of the record and the order of the KCC in this case, we find that that portion of the order of the KCC, requiring KEPCo to submit to the KCC for its approval a plan for the establishment of a sinking fund to defray KEPCo’s share of the expenses for the decommissioning of Wolf Creek, was not unlawful or unreasonable. The KCC has not finally determined whether KEPCo must have its funds for decommissioning placed in an interest-bearing sinking fund. The final determination of that issue must, of necessity, involve not only KEPCo but also KG&E and KCP&L and must also require a consideration of the regulations of the federal Nuclear Regulatory Commission which at that time might be applicable. We disagree with the district court that this condition constituted an interference in the internal management of KEPCo. The KCC was properly concerned with an extremely important matter which must be finally determined in another proceeding at a future time. We hold that the district court erred in finding Condition No. 3 to be unlawful and unreasonable.
Condition No. 4 — Requiring a Wolf Creek power outage contingency fund
A second area of concern for the KCC with respect to the Wolf Creek generating station was the possibility of an unexpected and prolonged power outage at that facility. Such an occurrence would require KEPCo to purchase replacement power to adequately supply its consumers. The KCC found that the utilities participating in Wolf Creek had made no provision for the expense of having to procure replacement power should the Wolf Creek plant experience an unexpected and prolonged outage. The KCC required KEPCo to submit “a projection of anticipated expenses for the purchase of replacement power due to unscheduled outages of the Wolf Creek plant, and a plan for accruing a contingency fund sufficient to cover such expenses.” The district court considered this requirement and held that it was within the KCC’s power, incident to its obligation under K.S.A. 66-131, to inquire into KEPCo’s plans concerning replacement power supplies and the anticipated cost thereof, because a public utility has a duty to furnish reasonably efficient and sufficient service at just and reasonable rates (K.S.A. 66-107). Since an unexpected power outage at Wolf Creek could materially affect both service and rates, the KCC had the power to require KEPCo to submit a plan concerning replacement power.
The district court held, however, that that portion of the KCC order requiring the establishment of a specific fund to defray any increase in cost due to a power outage, constituted an invasion of the power of KEPCo’s management to direct the investment of its revenues and was thus unlawful. The trial court rejected KEPCo’s contention that the KCC lacked jurisdiction to deal with this issue, because it was not mentioned in the pleadings or notice of hearing. We hold that the trial court correctly determined that the KCC had the authority and duty to require KEPCo to formulate and submit to the KCC a plan for the purchase or replacement of power due to unscheduled outages at the Wolf Creek plant. We further agree with the trial court that there were no procedural defects which precluded KCC from dealing with that issue.
We disagree, however, with the trial court’s decision that the KCC exceeded its authority in requiring KEPCo to submit, for its approval, a proposal for the establishment of a contingency fund which would be held for the sole purpose of defraying extraordinary expenses caused by power outages. In our judgment, this requirement does not constitute a final determination by the KCC that a contingency fund for the purchase of replacement power must be established. The KCC’s order went no further than to direct the preparation and submission of a plan to finance replacement power acquisitions during unexpected outages. KEPCo’s plan must, of necessity, be prepared in cooperation with KG&E and KCP&L. The KCC order merely requires that KEPCo submit to it a plan that would demonstrate that it has sufficient financial resources to service customers at all times. KEPCo is free to formulate and present a plan as it sees fit and it can present to the KCC any alternatives it feels are appropriate. At some future time, the KCC will consider the most reasonable method to assure that KEPCo and the coowners of the Wolf Creek plant will have sufficient financial resources on hand to service their customers in case of power outages at the Wolf Creek plant. We hold that the district court erred in declaring Condition No. 4 unlawful.
In view of our disposition of the appeal, we find that the issue raised on the cross-appeal is now moot and need not be considered.
For the reasons set forth above, we hold that the judgment of the district court is affirmed in part and reversed in part. The case is remanded with directions to the district court to remand the case to the KCC for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal in a criminal action from a jury verdict finding James C. Turbeville, defendant/appellant, guilty of attempted murder (K.S.A. 1983 Supp. 21-3301 and K.S.A. 21-3401), aggravated battery (K.S.A. 21-3414), unlawful possession of a firearm (K.S.A. 21-4204), kidnapping (K.S.A. 21-3402), and aggravated kidnapping (K.S.A. 21-3421). Turbeville contends the trial court erred in the admission of certain evidence, in giving certain instructions, and in imposing sentence. He also challenges the sufficiency of the evidence to sustain the kidnapping convictions.
On September 14, 1981, Coijon Fournier and Art Butler were working at Jet TV Rental in Topeka, Shawnee County, Kansas. A man later identified as Turbeville entered the store. Ms. Fournier asked the man if she could help him. The individual produced a handgun and ordered both employees into an adjacent office of the store. Thinking the individual wanted to rob the store, Butler asked him if he wanted money and started to move toward the cash register. Butler was again ordered by the gunman to go into the office. Once inside the office, Butler and Fournier were ordered to lie down on the floor. The individual shot Mr. Butler several times and he fell to the floor across Ms. Fournier’s legs. The gunman then took aim and shot the fallen Butler in the back. The assailant then turned and walked out of the store, closing the door to the office behind him. No property was taken. Butler was shot a total of six times, receiving wounds in the abdomen, lungs, heart and spine. Miraculously, he survived the assault.
An employee of a nearby bakery, Lonnie Nesvarba, had just arrived in a delivery truck when he noticed a person acting in a suspicious manner coming out of the Jet TV Rental store. The man had his hand in the pocket of his coat and kept looking back and forth as if to see if he were being watched. The man walked to the corner of the building and then turned and ran down an alley. When Nesvarba saw a police officer arrive at the store, he got out of his truck and went to the store. When he determined someone had been shot inside the Jet TV Rental store, Nesvarba gave police a description of the person he had seen leaving the store.
The police had no suspects in the shooting. In May of 1983, acting on a tip, an agent for the Kansas Bureau of Investigation placed a picture of Turbeville in a photographic lineup and showed the photographic array to the three witnesses. Butler and Fournier positively identified Turbeville as the gunman who had shot Butler. Nesvarba positively identified Turbeville as the man he had seen leaving the store. At the trial, following Turbeville’s arrest, the three witnesses again positively identified Turbeville as the man they had observed.
Joel Vashey, an inmate at the Shawnee County Jail, shared a cell with Turbeville prior to Turbeville’s trial. Vashey testified that during the time he and the defendant shared the cell at the jail, the defendant made various incriminating statements relating to the shooting. At one time Turbeville told Vashey, “You know, I really did this; but I flew in; and I flew out; and nobody ever knew it.” Turbeville also stated that he only did it “as a favor for Don.” On another occasion, Turbeville told his cellmates that a newspaper account of the shooting indicating Butler was shot twice in the back and once in the front was incorrect. He said that instead “the man was shot three times in the front and twice in the back with a .25 automatic.”
At the trial Turbeville, testifying on his own behalf, stated that he was living with his wife in Independence, Missouri, at the time of the shooting and that he had never been to Topeka before being brought there after his arrest. At the time of the shooting, he did not own a car. Turbeville’s wife testified she was with her husband the entire day of the shooting. The jury found Turbeville guilty of attempted murder, aggravated battery, unlawful possession of a firearm, kidnapping, and aggravated kidnapping.
Turbeville first contends the attempted murder and aggravated battery convictions are multiplicitous. The defendant’s motions made during trial to require the prosecution to elect between the two charges, attempted murder and aggravated battery, were denied by the trial court. Turbeville directs the court’s attention to State v. Garnes, 229 Kan. 368, 373-74, 624 P.2d 448 (1981), in which it was held that the charges of aggravated battery and attempted murder based upon the one act of stabbing the victim were multiplicitous. In this case, the charges of attempted murder and aggravated battery were both based on a single act. There is no question the charges arose out of the same overt act — the shooting of Art Butler. They are clearly multiplicitous under our holding in Games. The defendant’s conviction and sentence on the aggravated battery charge should be set aside.
Turbeville next contends the trial court erred in allowing Joel Vashey to testify about threats made against Vashey while in jail. The prosecutor asked Vashey why he was currently in protective custody in the jail. Vashey replied he had received threats that if he went to Lansing he “wouldn’t be coming back out,” which he interpreted to mean he would be killed. Defense counsel ob jected to these statements as being hearsay. The trial court overruled the objection and allowed the prosecutor to ask who had made the statements. Vashey testified another inmate had made the threats. The trial court then ruled the testimony concerning the threats was hearsay and instructed the jury to disregard it. Turbeville contends this evidence was highly prejudicial to his right to a fair trial because it permitted the jury to infer the appellant was somehow responsible for the threats.
Although the testimony was inadmissible hearsay and therefore constituted error, reversal is not required. The defendant is entitled to a fair trial, but not a perfect one. The erroneous admission of evidence during a trial does not require reversal in every case. A conviction is to be reversed only where the erroneous admission of evidence is of such a nature as to affect the outcome of a trial so as to amount to a denial of substantial justice. State v. Ambler, 220 Kan. 560, 564, 552 P.2d 896 (1976); State v. Farris, 218 Kan. 136, 140, 542 P.2d 725 (1975); K.S.A. 60-2105. Whether inadmissible testimony constitutes harmless or reversible error depends upon particular evidence and the circumstances of the case in which the question arises. State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976). Where evidence of guilt is of such direct and overwhelming nature that it can be said that erroneous admission of other evidence could not have affected the result of trial, such admission is .harmless error. State v. Sullivan & Sullivan, 224 Kan. 110, 118, 578 P.2d 1108 (1978); State v. Thompson, 221 Kan. 176, Syl. ¶ 6, 558 P.2d 93 (1976).
There is no evidence in the record to indicate the improper line of questioning was made intentionally or in bad faith by an inexperienced legal intern under the supervision of a deputy district attorney. The testimony was elicited to support Vashey’s credibility by indicating he was unafraid to tell the truth. That testimony did not implicate the defendant in any crimes. Nothing was stated by Vashey from which the jury could infer the threats came from the defendant. The evidence of Turbeville’s guilt was so overwhelming it is unlikely that the testimony concerning the threats made against Vashey by a third person affected the result of the trial. Butler, Fournier and Nesvarba all positively identified the defendant from the photographic lineup and at trial. In addition, Vashey testified concerning statements made by the defendant while in jail which implicated Turbeville in the crimes. The trial judge correctly admonished the jury to disregard the hearsay testimony. Such admonitions normally cure any prejudice resulting from the Improper admission of evidence. State v. Mick, 229 Kan. 157, Syl. ¶ 3, 621 P.2d 1006 (1981); State v. Thompson, 221 Kan. at 182. Under the circumstances of this case, the admission of this testimony was harmless error.
Turbeville complains that the instructions defining the oF fenses of kidnapping and aggravated kidnapping did not conform to the complaint. In Count 4 of the complaint, the defendant was charged with kidnapping Fournier by force or threat with the intent to facilitate the commission of a crime, or to inflict bodily injury, or to terrorize the victim. In Count 5 the defendant was charged with aggravated kidnapping of Butler by force or threat with the intent to facilitate the commission of a crime, orto inflict bodily harm. The court instructed the jury that to establish the kidnapping and aggravated kidnapping charges, the State had to establish that the taking and confining of Fournier and Butler was done “with intent to hold such person to inflict bodily injury or to terrorize the victim, or another; to facilitate flight or the commission of any crime.” The language of die instruction was taken from K.S.A. 21-3420(b) and (c) which define separate elements of kidnapping. Defendant complains the instructions broadened the scope of the charges alleged in the complaint by adding the alternative intents “to terrorize another” and “to facilitate flight” to the kidnapping charge, and the alternative intents “to terrorize the victim or another” and “to facilitate flight” to the aggravated kidnapping charge. He contends this provided additional alternative theories under which the jury could find guilt and violated the principle of due process that a defendant must be accurately informed of the nature of the charges against him.
It is generally the rule that 'instructions should be confined to the charges contained in the information and should not be broader or narrower than the information. Instructions given in violation of the rule, however, have been excused in cases where the substantial rights of the defendant have not been prejudiced. See State v. Kincade, 207 Kan. 442, 445, 485 P.2d 1385 (1971); State v. Booker, 197 Kan. 13, 15, 415 P.2d 411 (1966). Here it is true the instructions on the charges of kidnapping and aggra vated kidnapping were broader than how those offenses were charged in the information. However, it does not appear the defendant’s substantial rights were prejudiced in any way by this error. The language contained in the instructions was taken from K.S.A. 21-3420(¿), “[t]o facilitate flight or the commission of any crime” and (c) “[t]o inflict bodily injury or to terrorize the victim or another” which define the separate types of intent by which the taking or confining may have been committed. From the facts presented at trial, the instructions as given were entirely supported by the evidence. The defendant was fully apprised of the nature of the charges and was not misled in preparing his defense by the way the charges were described in the information. Turbeville presented an alibi defense and does not indicate how his trial strategy would have been different had the language contained in the instruction been included in the information. The language contained in the court’s instruction did not charge an additional crime, but stated several methods, or in this case different types of intent under (b) or (c), by which the kidnappings could be committed. Under these circumstances any error in the instructions was harmless error.
Turbeville next contends the evidence was insufficient to establish there was a “taking or confining” of the victims to support the kidnapping and aggravated kidnapping convictions. Defendant contends the State failed to prove the movement of the victims from the display area of the store to the office area was in any way significant in assisting the assailant to more easily commit the crime or escape detection. He maintains the movement of the victims to the office area was merely incidental to his intent to commit aggravated battery or attempted murder.
In State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976), this court held our kidnapping statute, K.S.A. 21-3420, requires no particular distance of removal, nor any particular time or place of confinement. Rather, “it is still the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.” 219 Kan. at 214. If the taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement (a) must not be slight, inconsequential and merely incidental to the other crime; (b) must not be the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. 219 Kan. at 216. In the Buggs case, it was held that where victims were forced to move from a parking lot to the inside of a store, such movement facilitated the commission of the robbery and rape by substantially reducing the risk of detection. Such movement constituted the crime of kidnapping. 219 Kan. at 216-17..
In State v. Brooks, 222 Kan. 432, 435, 565 P.2d 241 (1977), during a robbery of a hardware store, three occupants of the store were herded to the rear of the store and bound with tape while a fourth occupant was bound and left confined in the restroom. The Brooks court stated:
“Such acts were not a necessary incident to or part of the crime of aggravated robbery. That offense could have been completed without any movement or restraint of the occupants of the store.”
The defendant’s conviction for kidnapping was proper.
In State v. Weigel, 228 Kan. 194, 198-99, 612 P.2d 636 (1980), when the defendant forced the bank employees into a bank vault and attempted to lock the vault door for the purpose of permitting the defendant to flee the scene, he committed the crime of kidnapping. A similar conclusion was reached in State v. Nelson, 223 Kan. 572, 574, 575 P.2d 547 (1978), where four customers and a waitress were ordered into an unlocked refrigerator during the robbery of a restaurant.
The facts of this case fall squarely under the guidelines of State v. Buggs, 219 Kan. 203. Fournier and Butler were ordered from the front display area of the store into an adjacent office located at the back of the store. These acts were not a necessary incident to or part of the crimes of attempted murder or aggravated battery. Those crimes could have been accomplished in the front part of the store where Turbeville first encountered the employees. The movement from the front of the store, where the individuals could be observed by passersby on the street, to the office in the back of the store, substantially reduced the risk of detection. Turbeville, in addition, closed the door to the office where the shooting took place as he was leaving, helping to prevent the victims from observing his means and direction of escape. The evidence presented was sufficient to establish the crime of kidnapping. This point is without merit.
The defendant contends the trial court erred in failing to specify the length of sentence for each crime of which he was convicted and later modifying the sentence imposed when he was not present. At the hearing for sentencing, Turbeville was allowed to make a statement. After Turbeville’s statement, the trial court imposed sentence in the following manner:
“On the A felony I am going to impose life sentence. On the B felony I am going to impose a, a 15 years to life. On the two C felonies I’m going to impose five to 20 years. On the D felony I am going to impose three to ten years.”
Upon the State’s request to invoke the Habitual Criminal Act (K.S.A. 1983 Supp. 21-4504), the court doubled the minimum sentences on the B felony to 30 years and on the two C felonies to 10 years. (The A felony, aggravated kidnapping, had no minimum sentence, so was not enhanced, and the D felony, possession of a firearm, the parties agreed was exempt from enhancement.) The court ordered all sentences to run concurrently. After the defendant had departed with the sheriff, it was brought to the court’s attention that sentence had mistakenly been imposed on two C felonies and one B felony. Actually Turbeville had been convicted by the jury of two B felonies (attempted murder and kidnapping) and one C felony (aggravated battery). A conference was held by the trial court without the defendant being present. Upon the recommendation of the prosecutor and defense counsel, the sentence of 10 to 20 years erroneously imposed upon the mistaken C felony was instead imposed upon the B felony of attempted murder, without enhancement. Turbeville’s actual length of sentence, therefore, remained the same as that imposed by the judge while defendant was present at the sentencing hearing.
A judge had wide latitude in fixing the punishment for crimes. The defendant does not assert that the trial court could not have appropriately fixed the penalty in the first instance. Nor has the claim been advanced that the sentence imposed was excessive in light of the defendant’s prior conduct and the circumstances of the commission of these particular offenses. The defendant merely claims the sentencing judge had no jurisdiction to modify the sentence imposed without the defendant being present.
In the past we have approved the correction of the original journal entry because of mere formal or clerical errors by a nunc pro tunc order in the absence of the defendant. Kiser v. State, 196 Kan. 736, 413 P.2d 1002 (1966). The prisoner was in no way prejudiced by the faulty journal entry since the sentencing judge had properly pronounced the sentence imposed in the presence of the defendant. The misdescription of an offense in the journal entry constituted an irregularity which did not affect the validity of the sentence imposed.
The necessity of the defendant’s presence at the time a sentence is modified has received the attention of this court numerous times. In State v. Baxter, 41 Kan. 516, 21 Pac. 650 (1889), the defendant was convicted of a misdemeanor and sentenced to pay a fine and costs. The following day, in the defendant’s absence, the court entered an order that he be committed until the fine of $1.00 and costs were paid. The defendant contended his absence at the time the commitment order was made rendered the judgment invalid. This court stated the imprisonment was not part of the punishment imposed. The objection of the defendant, had he been present, would have been unavailing. The statute expressly required that after a judgment of fine and costs was rendered, a defendant be committed until the judgment was paid in full.
The defendant’s right to be present does not encompass proceedings before the court involving matters of law. In State v. Mantz, 222 Kan. 453, 463, 565 P.2d 612 (1977), the presence of the defendant was not required where the court and counsel, in the absence of the defendant, discussed instructions. In State v. Sanders, 227 Kan. 892, 893-94, 610 P.2d 633 (1980), the defendant’s presence was not required at a conference discussing motions in limine. Similarly, in State v. Nelson, 223 Kan. 251, 253, 573 P.2d 602 (1977), during an evening recess in the trial, and outside the presence of the defendant, a juror was granted permission to visit a sick relative. In State v. Garcia, 233 Kan. 589, 664 P.2d 1343 (1983), during trial, the court was concerned with the defendant’s ability to assist in his defense. The court continued the trial in order to have the defendant examined to determine if he was competent to stand trial. Outside the presence of the defendant, the jury was informed it was necessary to continue the trial. We approved the action of the trial judge.
K.S.A. 22-3405 provides a defendant in a felony case shall be present at every stage of trial including the imposition of sentence. See State v. Fennell, 218 Kan. 170, 176-77, 542 P.2d 686 (1975). In general a defendant’s statutory and constitutional rights to be present are violated only if the defendant is absent when the jury is hearing the case or when he is prevented from attending such other proceedings where his presence is essential to a fair and just determination of a substantial issue.
In a legal sense, “sentence” is synonymous with “judgment” and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt which he has confessed or of which he has been found guilty. State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931).
In Roberts v. State, 197 Kan. 687, 421 P.2d 48 (1966), Roberts pled guilty to charges of burglary in the third degree and grand larceny. He was sentenced to the state penitentiary for a term of not less than five nor more than ten years for the crime of burglary, and not less than one nor more than five years for the larceny, both sentences to run concurrently. After his incarceration in the penitentiary it was determined that Roberts had been improperly sentenced for burglary. Roberts’ retained counsel and the deputy county attorney appeared before the district court for the purpose of correcting the erroneous sentence previously imposed. The original sentence was set aside, and a new and concurrent sentence for burglary of not less than one nor more than five years was imposed on each charge to run concurrently.
Six months later Roberts attacked the validity of the new sentence by a 60-1507 motion. Roberts claimed he was not personally present in court at the time of resentencing. The trial court denied the motion and Roberts appealed. The Roberts court determined the provisions ofK.S.A. 62-1507 (Corrick) (now 22-3405) contemplate that the pronouncement of sentence is the judgment of the court, and if the conviction be for an offense punishable by imprisonment, it is mandatory that the defendant be personally present at the time sentence is pronounced. In a criminal prosecution where an erroneous original sentence of imprisonment has been vacated and set aside, a new sentence of imprisonment imposed in the defendant’s absence is void, for, under such circumstances, it is mandatory that the defendant be personally present in court at the time of resentencing. A void sentence may be corrected by the substitution of a new and valid sentence, and to accomplish such purpose, a prisoner shall be remanded by the reviewing court to the district court for further proceedings.
Roberts was followed by Aeby v. State, 199 Kan. 123, 427 P.2d 453 (1967). After a jury trial Aeby was convicted of two felonies and a misdemeanor. He was sentenced by the court on Count 1 of burglary to a term of not less than one nor more than five years; on Count 2 of petty larceny to a term not to exceed one year in the county jail, Count 1 and Count 2 to run concurrently; and on Count 3 of burglary to a term of not less than one nor more than five years, to run consecutive to Count 1. The court then mistakenly sentenced the defendant to a term of not less than 15 years nor more than 25 years by virtue of being a habitual criminal, such sentence to run consecutive with Counts 1 and 3. While in prison, Aeby moved to set aside the sentence for being a habitual criminal. The sentencing judge, realizing he had erred, modified the sentence by a nunc pro tunc order. The sentence for being a habitual criminal was vacated and Count 3 modified to 15 to 25 years under the Habitual Criminal Act. The Aeby court, following the guidelines of Roberts, required that the void sentence be set aside and a new sentence imposed with the defendant personally present in court at the time of resentencing.
In State v. Coy, 234 Kan. 414, 672 P.2d 599 (1983), the defendant was convicted of rape and aggravated burglary. The sentencing judge imposed a sentence in both counts in excess of the statutory minimum. After Coy was imprisoned, the sentencing judge realized he had erred; without notice to the defendant he entered an ex parte order correcting the minimum sentence. Following Roberts and Aeby, this court held that in a criminal prosecution where an erroneous original sentence of imprisonment has been vacated and set aside, a new sentence imposed in the absence of the defendant is void. Under such circumstances it is mandatory that the defendant be present in the court at the time of sentencing.
Sentencing an individual after a conviction is difficult and complex. A high degree of exactitude is required in the pronouncement of the sentence. The sentence should be definite and certain. Sentencing should clearly reveal the intention of the court and conform to the statutory limitations. Where a sentence is void, the presence of the defendant is required for the sentencing court to correct the void sentence. Where the trial court has corrected the void sentence without the defendant being present, we, as a reviewing court, must remand the case with directions to impose a lawful sentence in the defendant’s presence.
Next the defendant alleges the trial court erred in enhancing his sentence under the Habitual Criminal Act without requiring proof of prior convictions at the sentencing hearing. This point is entirely without merit. K.S.A. 1983 Supp. 21-4504(e) provides a trial court may, upon motion of the prosecuting attorney, enhance the sentence of a defendant who is convicted of two or more felonies “only after the court finds from competent evidence the fact of former convictions for felony committed by the prisoner, in or out of the state.”
During trial evidence of prior felony convictions from Missouri was introduced and admitted as exhibits by the State for the purpose of establishing one of the elements required to prove the charge of unlawful possession of a firearm. These exhibits were referred to in a notice of intent to invoke the Habitual Criminal Act which the State filed over a month prior to the sentencing hearing. The exhibits were not reintroduced at the sentencing hearing since they had been admitted into evidence at trial. An objection was raised to the admission of the exhibits at trial on the ground there was no evidence that the defendant was the person involved in the prior felonies. The trial court overruled this objection, finding there was sufficient evidence that Turbeville was the same person involved in the prior felonies. That finding was not challenged on appeal. In addition, during trial Turbeville testified concerning his prior Missouri felony convictions. There was sufficient competent evidence of the defendant’s prior felony convictions from which the court could properly impose sentence under the Habitual Criminal Act.
As his final point, the defendant contends the State should not have been allowed to enhance the sentences under the Habitual Criminal Act with the same evidence of prior felonies used to prove the elements of the charge of unlawful possession of a firearm. He contends that, under K.S.A. 1983 Supp. 21-4504(á), evidence of a prior conviction is “used up” if it is used to prove the elements of a crime charged and cannot be used again to enhance the sentences of other crimes charged. This provision reads:
“The provisions of this section shall not be applicable to:
“(1) Any person convicted of a felony of which a prior conviction of a felony is a necessary element . . .
The language of this provision is clear and unambiguous. It provides only that a conviction of a felony, i.e., unlawful possession of a firearm, may not be enhanced where evidence of a prior conviction is a necessary element of that conviction. There is no prohibition, however, upon enhancing the sentences of other convictions with evidence of prior felonies which formed an element of a separate conviction. Turbeville’s conviction on the charge of unlawful possession of a firearm was not enhanced because of this provision. The other convictions were properly enhanced because of the defendant’s prior Missouri felony convictions. This point is without merit.
The convictions of attempted murder, unlawful possession of a firearm, kidnapping and aggravated kidnapping are affirmed. The conviction and sentence for aggravated battery is set aside. Because the void sentences were modified without the defendant being present, the case is reversed and remanded to the district court with instructions to resentence defendant, affording the defendant an opportunity to be present and heard at the time of resentencing.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
Barbara E. Osoba (defendant-appellant) appeals her sentence as a second offender for driving under the influence of alcohol (K.S.A. 8-1567[d]). The conviction of the first offense did not precede commission of the offense for which the appellant was before the trial court for sentencing; therefore, she claims first offender status.
On October 30, 1982, the appellant was cited for driving under the influence of alcohol in Sumner County, Kansas. On December 5, 1982, she was again cited for driving under the influence of alcohol in Sedgwick County, Kansas. On January 27, 1983, Mrs. Osoba entered a plea of guilty on the Sedgwick County citation and was awaiting sentence as the Sumner County action proceeded to trial. The appellant waived her right to jury trial in Sumner County and entered a guilty plea February 9, 1983. At a hearing on February 14, 1983, the appellant moved that she be sentenced as a first offender under K.S.A. 8-1567(c). The court denied the motion and sentenced her as a second offender, imposing a $500 fine and ninety days in the county jail plus costs.
On appeal, the appellant argues the sequential relation requirement applied to second and subsequent convictions under the habitual criminal statute, K.S.A. 1982 Supp. 21-4504, should be applied by analogy to the habitual criminal provisions of K.S.A. 8-1567(d). The majority rule in imposing increased sentences on habitual offenders, followed in the interpretation of K.S.A. 1982 Supp. 21-4504, is that “for enhancement of sentence of a defendant as a second offender, the previous conviction must have occurred prior to commission of the principal offense.” State v. Wilson, 6 Kan. App. 2d 302, 305, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981). See also State v. Felton, 194 Kan. 501, 506, 399 P.2d 817 (1965); Annot, 24 A.L.R.2d 1247. The issue has apparently not arisen under self-contained specific habitual criminal statutes, such as K.S.A. 8-1567.
Two jurisdictions have departed from the general rule in construing drunken driving statutes, in each instance based upon the wording of that jurisdiction’s particular statute.
New Jersey, although acknowledging the general rule, allows enhancement of sentence as a second offender even though the second offense occurs before conviction for the first. State v. Guiendon, 113 N.J. Super. 361, 273 A.2d 790 (1971); State v. Deckert, 69 N.J. Super. 105, 173 A.2d 575 (1961). In Deckert the court determined the New Jersey Legislature, by amending N.J. Stat. Ann. 39:4-50, intended to make commission of a second offense carry enhanced punishment regardless of sequential relation. Language referring to “conviction” was replaced by reference to a “first offense” and “a subsequent violation.”
In Louisiana, the legislature apparently acted in response to judicial decisions imposing a sequential relation. See, e.g., State v. Neal, 347 So. 2d 1139 (La. 1977), following the majority rule. The legislature changed the language “[o]n a second conviction” to read “[o]n a second conviction, regardless of whether the second offense occurred before or after the first conviction.” La. Rev. Stat. § 14:98 (West 1983 Supp.). In a subsequent decision, the Louisiana Supreme Court found a “clear intent by the Legislature that all prior DWI convictions be considered in determining the applicable penalty, and ... an intent to distinguish these enhancement proceedings from other multiple offender prosecutions.” State v. Woods, 402 So. 2d 680, 683 (La. 1981).
There has been no change in the language of K.S.A. 8-1567 from which one could glean a similar intent. On the contrary, in the 1982 amendments to the DWI law in Kansas, the legislature retained “conviction” language similar to that appearing in K.S.A. 1982 Supp. 21-4504. Compare “On a second conviction of a violation of this section,” K.S.A. 8-1567(d), with “If a defendant is convicted of a felony a second time,” K.S.A. 1982 Supp. 21-4504(a). The legislature, knowing the judicial interpretation of existing language, could have made a distinction in the drunken driving laws had it chosen to do so.
One early Kansas case suggests the general rule should be applied to self-contained habitual criminal statutes. In State v. Volmer, 6 Kan. *379 (1870), an information was filed against the defendant under the Dramshop Act for an alleged second offense. The applicable statute provided:
“Sec. 3. Any person, without taking out and having a license as grocer, dramshop keeper or tavern keeper, who shall, directly or indirectly, sell any spirituous, vinous or fermented or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offense; and any person convicted of violating these provisions, shall, for every second or subsequent offense, be fined a sum not more than the above named, or may be indicted for a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, and imprisoned in the county jail not more than six months.” G.S. 1868, ch. 35, § 3.
In the context of that opinion the court stated, “[Bjefore a person can make himself liable to be convicted of a second offense, as such, he must previously have been convicted of the first offense.” 6 Kan. at *383.
The State argues that the strict provisions of K.S.A. 8-1001 and 8-1567 as well as judicial comments on drunken driving (see, e.g., South Dakota v. Neville, 459 U.S. 553, 74 L.Ed.2d 748, 755, 103 S.Ct. 916 [1983]; State v. Compton, 233 Kan. 690, 699-700, 664 P.2d 1370 [1983]) indicate deterrence, rather than rehabilitation, is the goal. The sequential relationship requirement, it is argued, weakens the deterrent effect. The distinction the State draws between deterrence and rehabilitation is not supported by cases construing the habitual criminal statute. Both deterrence and rehabilitation are purposes of that statute. See, e.g., State v. Lohrhach, 217 Kan. 588, 538 P.2d 678 (1975); State v. Murray, 200 Kan. 526, 437 P.2d 816 (1968); State v. Felton, 194 Kan. 501.
From examination of statutory language and case law in Kansas as well as other jurisdictions, we conclude the sequential relation requirement applied to K.S.A. 1982 Supp. 21-4504 should, by analogy, be extended to K.S.A. 8-1567.
The appellant’s conviction is affirmed. The case is remanded with directions to sentence the appellant as a first offender.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Cook, District Judge Assigned:
This appeal follows defendant’s convictions for sale of marijuana and possession of marijuana with intent to sell, both in violation of K.S.A. 1983 Supp. 65-4127b(b)(3) and K.S.A. 1983 Supp. 65-4105(d). Defendant’s pretrial motion to suppress evidence was overruled, as were his later objections after trial to alleged Fourth Amendment violations. These same issues are raised on appeal, along with his claim of multiplicity in the two charges.
Howard Roudybush was convicted of possession of marijúana in the District Court of Pottawatomie County in 1980. Two years later his activities again attracted law enforcement attention. During the week of September 17, 1982, while officers from the Pottawatomie County Sheriffs office were conducting visual surveillance of defendant’s property, they observed a number of visitors enter the house, stay a short while and leave with packages. One of the vehicles seen at the Roudybush property was identified as belonging to one Steven Brazzle.
On October 1, 1982, Steven Brazzle reported to the Wamego Police Department for a scheduled meeting with his probation officer. He waited for thirty minutes but after his probation officer failed to arrive, Brazzle started to leave. As he was leaving Brazzle was approached by Gerald Schmidt, an investigator for the sheriff s office, who was previously working on the Roudybush surveillance. Schmidt confronted Brazzle with the allegation Brazzle had “heavy drug traffic” through his apartment. Brazzle denied this and, upon request, consented to a search of his apartment. That search revealed marijuana.
After Brazzle was placed under arrest and read his Miranda rights, Schmidt began questioning him about his acquaintance with Howard Roudybush. Only after Schmidt threatened to book Brazzle on the possession charge did Brazzle agree to cooperate. Schmidt explained they needed help to arrest Roudybush for possession of marijuana because they “knew he was dealing, but they couldn’t prove it.” Brazzle told the officers he knew Roudybush and had been dealing with him since 1979. Brazzle mentioned he had bought marijuana from defendant in the past, knew him to be a large quantity dealer, and had personally seen several pounds of marijuana in Roudybush’s house.
At the officers’ direction, and after being searched, Brazzle made his first trip to defendant’s house to attempt a marijuana buy. Roudybush was not there. Brazzle left a message he would phone at the time Roudybush was expected to return. He joined the officers and returned to the Wamego Police Department. Later, in the presence of the officers, Brazzle phoned Roudybush and asked if he had any “eggs,” a code name for marijuana. Brazzle explained over the phone he was having a party the following evening, and made arrangements to return to Roudybush’s house for a purchase.
Officers then followed Brazzle to a secluded area in Wamego where they searched him and his vehicle. They found no controlled substances. Brazzle was fitted with a bodypack transmitter to transmit his conversations with Roudybush, which would be recorded by the officers receiving the transmission. He was also given two $20.00 bills, the serial numbers of which were noted by the police. Brazzle returned to his own apartment for his dog, and was again searched by the officers. The entourage proceeded to defendant’s house where the officers concealed themselves from view of the house where they could receive Brazzle’s transmissions and observe vehicle traffic to the property.
Brazzle’s meeting with defendant began around 11:15 p.m. and lasted approximately fifteen minutes. The officers waiting outside were acquainted with Roudybush from his prior arrest, and were able to recognize his voice in the electronic transmission as that of the person conversing with Brazzle. Officer Schmidt later summarized the substance of the transmission:
“There was a large amount of conversation about dogs [Brazzle had previously purchased his Doberman pinscher pup from defendant] . . . arid then at a point there was a conversation where I heard the voice I believed to be Howard Roudybush, talking about dealing in drugs, particularly marijuana, and talking of harvest, and that he had recently harvested his own crop, and that he was going to be selling out of state. That he’s now considered one of the bigger dealers in the area. Numerous dealers had been cut out in Manhattan. That although he would be getting some stuff from him that’s not marijuana, I believe he said marijuana, or pot, that he wished that Brazzle not tell anyone that he got it from him. That he was keeping it quiet. That this weekend, his homegrown crop was going to be going out of state, that he was going to be getting rid of it. And then he proceeded to show him something, which I heard Brazzle making statements, ooh’s and ah’s, and then there was talk of how much you want for a fourth. And Roudybush I believe said, $40.00 for an ounce, or something to that effect, and there was more conversation. And there was more conversation about dogs, and shortly thereafter, Brazzle left the residence.”
The police officers followed Brazzle to a location two miles west of defendant’s residence, and there searched him. They did not find the two $20.00 bills Brazzle had earlier been given, but did find a bag of dried green vegetation which they believed to be marijuana. Brazzle told the officers back at the police station that he had given the $20.00 bills to Roudybush in exchange for the bag of marijuana. Brazzle described the location of marijuana in and around defendant’s house.
At approximately 2:00 a.m. on October 2, 1982, Officer Schmidt appeared before District Magistrate O. F. Maskil and requested a search warrant for defendant’s home. The transmitted conversation had not yet been transcribed, and the tape recording itself was not played to the magistrate. Schmidt summarized the foregoing events based on his memory. He requested authority to seize marijuana, other controlled substances, drug paraphernalia and equipment, the two marked $20.00 bills, and any other fruits and instrumentalities of the crime. The magistrate found probable cause and issued the search warrant.
The police officers executed the search warrant at 3:30 a.m. After they knocked on defendant’s front door and identified themselves, Roudybush attempted to burn a quantity of marijuana in a large woodburning stove. The fire was extinguished and the subsequent search revealed a large quantity of marijuana both in the house and growing on the grounds outside. One of the marked $20.00 bills was found in defendant’s billfold.
Defendant was charged with the sale of marijuana occurring on October 1, and with possession of marijuana with intent to sell, occurring on October 2. A preliminary hearing was held on November 15, 1982. Before trial, defendant moved to suppress his intercepted oral communications with Brazzle, the search warrant and all evidence seized pursuant thereto, on the ground the radio transmission and interception of defendant’s oral communications were unlawful and in violation of K.S.A. 21-4001 and K.S.A. 22-2514 et seq., “in that no warrant had been issued purporting to authorize the interception of any oral communications of this defendant.” Defendant also argued that if evidence of the illegally intercepted conversation was removed from the affidavit in support of the search warrant, that affidavit would not sufficiently establish probable cause on which to base the warrant; thus the warrant and the evidence seized in its execution should also be suppressed. Defendant’s motion was heard and overruled on January 12, 1983. A supplemental motion to suppress was filed January 31 claiming the affidavit lacked evidence establishing the reliability and credibility of informant Brazzle. A memorandum decision filed March 17, 1983, overruled both motions to suppress.
Trial to the court was held on April 15 and 21, 1983. Prior to trial defendant moved the court, pursuant to K.S.A. 22-3216(3), for leave to develop any additional Fourth Amendment violations perceived during the course of the trial. This motion was granted. A motion for judgment of acquittal was made at the close of the State’s evidence and was renewed at the close of all evidence. Defense counsel emphasized the inadequacies of the controls used by the State in Brazzle’s purchase, and the failure of the State’s evidence to prove defendant’s guilt. The trial court overruled the motions and found Roudybush guilty of both charges.
On April 29, 1983, defendant filed a motion to exercise and a renewed motion for judgment of acquittal or, in the alternative, motion for new trial. These motions in essence raised all issues previously presented to the court. The post-trial motions were overruled on June 7 and defendant was sentenced to concurrent terms of four to ten years in prison. This appeal followed.
Defendant’s first claim on appeal is that the State’s electronic interception of the conversation occurring inside his home was a violation of K.S.A. 21-4001(l)(a) and (l)(b), and could not law fully be used to obtain the search warrant. Or, put another way, does an electronic interception by police officers of a private conversation held within the home of a suspect, secured without judicial approval but with the cooperation and consent of a' police informant who was a party to the conversation, violate the statutory proscription against eavesdropping? Defendant’s argument, in a nutshell, is that K.S.A. 21-4001 does not contain an exception governing law enforcement activities and that the third party consent of an informant cannot defeat defendant’s privacy expectations under the statute., Thus, he concludes the informant’s use of the bodypack transmitter inside his house constituted an “entry” violating 21-4001(l)(a), and the police officers’ use of a receiver and recorder violated 21-4001(l)(b). The State’s response is that the eavesdropping statute was not intended to cover the situation where an informer carries a transmitter into an otherwise “private place” or, if it does apply, the language excepts from coverage situations where one of the participants consents to transmittal of the conversation. The State also argues that the use of a wired informant is specifically provided for in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified in 18 U.S.C. § 2510-2520.
In order to properly construe the criminal eavesdropping statute, K.S.A. 21-4001, it is also necessary, in determining legislative intent, to review the other statutory enactments on the same subject, i.e., 21-4002 (criminal breach of privacy) and K.S.A. 22-2514 through 22-2519 (procedural eavesdropping statutes). State v. Hruska, 219 Kan. 233, 547 P.2d 732 (1976).
K.S.A. 21-4001 defines the crime of eavesdropping and K.S.A. 21-4002 defines the crime of breach of privacy. They provide, in pertinent part, as follows:
“21-4001. Eavesdropping. (1) Eavesdropping is knowingly and without lawful authority:
(a) Entering into a private place with intent to listen surreptitiously to private conversations or to observe the personal conduct of any other person or persons therein; or
(b) Installing or using outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in such place, which sounds would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein; . . .
“(2) A ‘private place’ within the meaning of this section is a place where one may reasonably expect to be safe from uninvited intrusion or surveillance, but does not include a place to which the public has lawful access.
“(4) Eavesdropping is a class A misdemeanor.”
“21-4002. Breach of privacy. (1) Breach of privacy is knowingly and without lawful authority:
(a) Intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication; or
(b) Divulging, without the consent of the sender or receiver, the existence of contents of such message if such person knows that the message was illegally intercepted, or if he illegally learned of the message in the course of employment with an agency in transmitting it.
“(3) Breach of privacy is a class A misdemeanor.”
We have previously stated there is “no significant difference between [K.S.A.] 21-4001 and 21-4002 and their federal counterparts 18 U.S.C.A. 2511 (2)(a) and 47 U.S.C.A. 605.” State v. Hruska, 219 Kan. 233, 240. However, we have also recognized that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 allowed for concurrent state regulation so long as the state enactment meets the minimum standards reflected in the federal regulation; thus, a state may adopt an electronic surveillance statute with standards more stringent than the requirements of the federal law, but not with standards more permissive than those set forth in Title III. In State v. Farha, 218 Kan. 394, 404, 544 P.2d 341 (1975), cert. denied 426 U.S. 949 (1976), we held invalid K.S.A. 1971 Supp. 22-2513(1) because the procedure for obtaining eavesdropping orders contained therein was more permissive than that authorized by the federal act. Defendant here contends the State’s reliance on the federal act is unavailing because the Kansas electronic surveillance statutes, K.S.A. 21-4001 and 21-4002, were enacted prior to Title III and are more stringent than the federal act, thereby granting Kansas citizens a higher degree of freedom from electronic surveillance than is granted by Title III. Defendant also points to the comments of the 1968 Judicial Council following K.S.A. 21-4001 as evidence the legislature intended our act to be more stringent than that later provided under Title III.
Although the question presented in this appeal is a matter of first impression in this state, we have construed the Kansas eavesdropping statutes in prior decisions. In State v. Wigley, 210 Kan. 472, 502 P.2d 819 (1972), this court addressed the issue of whether a tape recording of a telephone conversation between defendant and an informer, with the consent of the latter, violated those statutes. In the course of that decision we referred to the United States Supreme Court’s approval of the use of a “wired” government informer. In United States v. White, 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122 (1971), the court, in holding there was no violation of Fourth Amendment rights, said:
“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S. [293], at 300-303 [17 L.Ed.2d 374, 87 S.Ct. 408 (1966)]. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, [373 U.S. 427, 10 L.Ed.2d 462, 83 S.Ct. 1381 (1963)]; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, [343 U.S. 747, 96 L.Ed. 1270, 72 S.Ct. 967 (1952)]. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
“. • . An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
“. . . Our opinion is currently shared by Congress 'and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. § 2510 et seq. (1964 ed., Supp. V), and the American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance §4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.” White, 401 U.S. at 751-53.
Both in White and Wigley, the courts reviewed Sections 4.1 and 4.2 of the American Bar Association Standards relating to Electronic Surveillance, supporting the use of these techniques by law enforcement officers for overhearing or recording wire or oral communications with the consent of one of the parties. Based on the presence of the informer’s consent, we concluded in Wigley there was no violation of K.S.A. 21-4002(l)(a) which enjoins only interceptions without the consent of either the sender or the receiver. 210 Kan. at 476.
We observed in Wigley that the exact statutory language adopted in our criminal eavesdropping statutes does not appeár in either the Model Penal Code, the federal statute or the American Bar Association Standards. We also mentioned that the statutes of the various states pertaining to wiretapping or eavesdropping or breach of privacy vary with the specific statutory language adopted by each state legislature. For a general discussion and review of state and federal cases covering the subject of regulation of wiretapping and eavesdropping, see 97 A.L.R.2d 1283 and 27 A.L.R.4th 449. Although some of these sources, because of the similarity of language used, may be helpful in interpreting our own eavesdropping statutes, we are basically left to our own resources in construing the unique language used in the criminal eavesdropping statute now under challenge.
In construing criminal statutes, under our decisions we are required to place a strict construction on the language used therein. State v. Mauldin, 215 Kan. 956, 959-60, 529 P.2d 124 (1974). It is also the usual practice for courts to take into consideration other statutory enactments on the same subject which might shed light on the legislative intent. Claflin v. Walsh, 212 Kan. 1, 8, 509 P.2d 1130 (1973).
Did either the police officers or the informant violate any of ■the provisions of K.S.A. 21-4001(l)(a) or (b) quoted above? Under the provisions of 21-4001(l)(a) it is unlawful to knowingly and without lawful authority enter into a private place with intent to listen surreptitiously to private conversations.
It is conceded Brazzle did not enter defendant’s home without lawful authority. He was there by direct invitation from defendant to purchase marijuana. Also, he did not listen surreptitiously to private conversations. This would imply Brazzle stealthily, secretly or furtively listened to defendant’s conversation, which is absurd. Brazzle was an invited party to the conversation; in fact, the only party other than the defendant. The proscription set forth in K.S.A. 21-4001(l)(a) is clearly aimed at preventing an unknown and uninvited presence in a private place, either personally or by electronic or photographic devices, to secretly listen to private conversations between other persons, or to furtively observe the personal conduct of such person or persons therein. We find no violation of K.S.A. 21-4001(l)(a) by informer Brazzle.
Likewise, we find no violation by the police officers in fitting Brazzle with a bodypack transmitter. The officers did not enter upon defendant’s property nor did they secretly plant the transmitter within his home. Rather, the transmitter was taken into the defendant’s home by an invited guest with the guest’s knowledge and consent. The bodypack merely received and transmitted the conversation between Brazzle and the defendant. It gave the officers no more than Brazzle himself could have given without the bodypack, except a more accurate and reliable version of the conversation. We, can find no language in K.S.A. 21-4001(l)(c) which prohibits the presence or use of an electronic transmitter by one of the parties to a private conversation. This construction is not only consistent with the specific language of the statute but also with the interpretation given by most federal and state courts when construing similar enactments:
“Where the interception [of oral communications] takes place with the cooperation, consent, or, as is the case with informers, the active participation of one of the parties to the conversation, there is little doubt as to its admissibility against the non-consenting party. Reasoning that the information could have been revealed by the co-operating party even without the interception, the courts uniformly hold the intercepted matter admissible. State statutes prohibiting the use of eavesdropping devices are usually held inapplicable in this situation and some authorities have even pointed out that eavesdropping, in its true sense, is not involved when the defendant engages the co-operating party in a face-to-face conversation.” 91 A.L.R.2d 1283, 1289.
See also Lopez v. United States, 373 U.S. 427, 10 L.Ed.2d 462, 83 S.Ct. 1381, reh. denied 375 U.S. 870 (1963); 27 A.L.R.4th 449.
We next consider whether there was a violation of K.S.A. 21-4001(l)(b). It is a crime under K.S.A. 21-4001(l)(fe) to install or use outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in such place “without the consent of the person or persons entitled to privacy therein.” Compare this language with the provisions of K.S.A. 21-4002(l)(a) and (b), where it is a criminal breach of privacy to intercept or divulge a message by telephone, telegraph, letter or other means of private communication “without the consent of the sender or receiver.” It should be remembered that Brazzle consented to be fitted with a bodypack and consented to allow the officers to intercept, listen to, and record his private conversation with the defendant.
It is obvious to us that the legislature, by using the language “without the consent of the person or persons entitled to privacy therein” [K.S.A. 21-4001(l)(fe)] and “without the consent of the sender or receiver” [K.S.A. 21-4002(l)(a) and (£>)], intended that all parties to any “private conversation” must desire to be clothed with the protection of the statutes before there can be a violation thereof. In other words, any party to a private conversation may waive the right of privacy and the non-consenting party has no Fourth Amendment or statutory right to challenge that waiver. When one purports to engage in a private conversation the burden is upon him to make certain he has not misplaced his confidence in the person with whom he is communicating. If the legislature had intended to require the consent of all persons entitled to privacy under K.S.A. 2I-4001(l)(b) or the consent of both the sender and the receiver under K.S.A. 21-4002(l)(c) and (b), it could have specifically so provided. Instead, it chose language that clearly indicates the protection provided under the statutes can be waived by either party to a private conversation.
The foregoing constructions placed on the eavesdropping and breach of privacy statutes are in conformity with our prior decisions in State v. Jordan, 220 Kan. 110, 551 P.2d 773 (1976), and State v. Irving, 231 Kan. 258, 644 P.2d 389 (1982). Although Irving involved an interpretation of K.S.A. 22-2514 et seq., it is of interest in comparing the criminal and procedural eavesdropping statutes to determine legislative intent.
K.S.A. 22-2514(2) defines “oral communication” as follows:
“(2) ‘Oral Communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
K.S.A. 22-2515 requires an ex parte court order to intercept a wire or oral communication. If a court order is not obtained the intercepted communication cannot be received into evidence in any trial, hearing or other proceeding in or before any court. K.S.A. 22-2517.
Consistent with our foregoing conclusions, we hold that a face-to-face “private conversation” between a police informer and a suspect is not an “oral communication” as defined by K.S.A. 22-2514 and, thus, it is not necessary to obtain an ex parte court order to intercept such conversation if the informer knowingly consents to the interception. Under such circumstances, it cannot be said that a suspect can legally justify an expectation that such communication is not subject to interception.
Even if we were to hold the conversation between Brazzle and the defendant to be an “oral communication” under K.S.A. 22-2514, their recorded conversation could nevertheless have been received into evidence, either before the magistrate at the probable cause hearing or during trial. K.S.A. 22-2515(3) and (4) provide as follows:
“(3) Any investigative or law enforcement officer who, by any means authorized by this act or by chapter 119 or title 18 of the United States code, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents to the extent such use is appropriate to the proper performance of his or her official duties.
“(4) Any person who has received, by any means authorized by this act or by chapter 119 of title 18 of the United States code or by a like statute of any other state, any information concerning a wire or oral communication, or evidence derived therefrom, intercepted in accordance with the provisions of this act, may disclose the contents of such communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court, or before any grand jury, of this state or of the United States or of any other state.”
In State v. Irving we observed that under the above subsections any information or evidence derived from a telephone conversation which was obtained by any means authorized by chapter 119 of title 18 of the United States Code is admissible in any criminal proceeding in Kansas. 231 Kan. at 264. 18 U.S.C. 2511(2)(c) and (d) specifically provide that it is not unlawful for either a person acting under color of law [251 l(2)(c)] or a person not acting under color of law [2511(2)(d)J to intercept a wire or oral communication, where such person is a party to the communication or has received prior consent to the interception from one of the parties to the communication. We held in Irving that the taped communication between an informant and the defendant was admissible under both the federal wiretapping statute and the Kansas statute [K.S.A. 22-2515(3) and (4)] since the consenting informer was one of the parties to the telephone conversation and thus outside the prohibition of those statutes.
We fully recognize that our interpretation of K.S.A. 21-4001 may be contrary to a portion of the comments of the 1968 Judicial Council. There are, however, several other considerations which we feel justify the above conclusions: First, as stated in the Judicial Council comments, K.S.A. 21-4001 was patterned after the Model Penal Code, the official comments of which are in conformity with our conclusions; second, the comments following the text of a statute are not a part of the legislative enactment, but are extrinsic evidence to be. used as an aid in construction only if the language of the statute is ambiguous (State v. Bagemehl, 213 Kan. 210, 213, 515 P.2d 1104 [1973]); lastly, a statute should never be given a construction that leads to uncertainty, injustice, or confusion, or that would lead to an absurd result (State v. Howard, 235 Kan. 236, 247, 679 P.2d 197 [1984]).
We conclude that neither the criminal eavesdropping statute (K.S.A. 21-4001[l][a] and [b]) nor the criminal breach of privacy statute (K.S.A. 21-4002[l][a] and [b]) are violated when a police informer engages'in a “private conversation” with a suspect and consents to the electronic interception and recording of the conversation. Further, we hold that such conversation is not an “oral communication” as defined by K.S.A. 22-2514, requiring an ex parte court order if the informer knowingly consents to its interception.
The defendant’s next point of claimed error is whether the procedures used in this “controlled buy” were sufficient to insure the reliability of an untested informant in order to establish probable cause under the Fourth Amendment to the United States Constitution. Defendant’s argument is primarily aimed at the sufficiency of the search warrant affidavit with the electronic eavesdropping evidence removed. Having already determined that the intercepted conversation between the informant and the defendant was admissible in any court proceeding, we find no merit in defendant’s alleged claim of error. It is no longer necessary for the State to prove the reliability or credibility of an informer to establish probable cause for the issuance of a search warrant. Illinois v. Gates, 462 U.S. __, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983). We now recognize the “totality of the circumstances” approach adopted in Gates whereby the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Walter, 234 Kan. 78, 670 P.2d 1354 (1983); State v. Rose, 8 Kan. App.2d 659, 665 P.2d 1111 (1983). Suffice it to say, there was abundant evidence before the magistrate to support his finding of probable cause. The officer's summary of the intercepted conversation between the informer and defendant not only supplied additional evidence on which to base a finding of probable cause but also established the credibility of the informant’s knowledge of defendant’s drug activity.
Defendant also challenges the police procedures used in making the controlled buy, arguing they were insufficient to guard against the possibility of the informant “planting” evidence because the police failed to search underneath the hood of Brazzle’s car. Other states have dealt with the issue of the adequacy of controls used in drug buys and have concluded that the thoroughness of a search of an informant affects only the credibility and the weight to be given the testimony of this issue. Spriggs v. State, 511 P.2d 1139 (Okla. Crim. 1973); People v. Blackburn, 133 Ill. App. 2d 404, 273 N.E.2d 472 (1971). We believe this to be the proper rule, whether the testimony be that of the informant or the police officers. We further note in the instant case, as has been previously stated, that the informer’s credibility was substantially verified through the intercepted conversation with defendant.
Defendant next claims that Officer Schmidt withheld critical evidence from the issuing magistrate when seeking the search warrant, which now requires suppression of the evidence seized thereunder. Defendant points out the following alleged omissions or misstatements occurring in the affidavit:
1. Investigator Schmidt failed to tell the magistrate the informant was under arrest when he and Schmidt had occasion to talk at the Wamego Police Department.
2. Investigator Schmidt failed to tell the magistrate the informant had agreed to cooperate with authorities in exchange for leniency in criminal charges or probation revocation proceedings.
3. Investigator Schmidt failed to tell the magistrate the phone call between the informant and the defendant was not monitored by police.
4. Investigator Schmidt failed to tell the magistrate the defendant was in the business of selling farm products such as chickens and eggs.
5. Investigator Schmidt failed to tell the magistrate certain things the defendant told the informant, as revealed by the transcription of the bodypack recording.
6. Investigator Schmidt failéd to tell the magistrate no search was made of the engine compartment of the informant’s car as part of the controls imposed.
7. Investigator Schmidt incorrectly stated the conversation between the defendant and the informant concerning the price of marijuana.
In State v. Jacques, 225 Kan. 38, 43, 587 P.2d 861 (1978), we followed Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978), and held that knowingly false statements or statements made with reckless disregard for the truth must be exercised from a warrant affidavit, and if the remaining content is insufficient to establish probable cause the warrant must be voided and the fruits of the search excluded. However, we also recognized that the burden of proof is upon a defendant raising the issue, and where his claim of deliberate falsity or reckless disregard on the part of the governmental affiant is merely conclusory, no hearing on the claim is required. 225 Kan. at 44.
We expanded the Franks/Jacques rule in State v. Lockett, 232 Kan. 317, 654 P.2d 433 (1982):
“Obviously the Jacques case applied only to false statements contained in an affidavit for search warrant. However, a deliberate omission os often equal to an actual misstatement. Thus, the Jacques and Franks rules can easily apply to a case where a person claims authorities deliberately omitted material information from a search warrant.
“Jacques requires that the person attacking the affidavit show two things: (1) the omission was deliberate and (2) the omission was material.” 232 Kan. at 319.
Finally, we have held that the question for our appellate court on review is whether the trial court’s findings on the issue of deliberate falsity and reckless disregard are supported by “substantial evidence,” in which case they may not be disturbed. State v. Walter, 234 Kan. 78, 670 P.2d 1354 (1983). The same review criteria would apply to a deliberate and material omission.
In denying defendant’s post-trial motion to excise, the trial court held:
“I am of the opinion and find that there was no material statement of falsehood or reckless disregard for the truth in seeking to obtain that search warrant, and I further find that there were no deliberate omissions of any material fact by the officers in seeking that search warrant.”
We have reviewed the record below and find substantial competent evidence to support the trial court’s finding.
' Finally, defendant claims the charges of sale of marijuana and possession of marijuana with intent to sell were multiplicitous. ■
Multiplicity involves the charging of a single offense in several counts. State v. Dorsey, 224 Kan. 152, Syl. ¶ 6, 578 P.2d 261 (1978). The principle behind the prohibition against multiplicity is that the State may not split a single offense into separate parts because a single wrongful act will not furnish the basis for more than one criminal prosecution. State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 (1976). The general principles for determining whether charges are multiplicitous were set out in State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981):
“(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
Example: Where an aggravated assault or aggravated battery directly results in a homicide, the offenses become merged. See State v. Clark, 204 Kan. 38, 44, 460 P.2d 586 (1969).
(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
Example: The essence of aggravated robbery is to deprive a person of property, an element not found in homicide. Though a homicide is committed in the course of an aggravated robbery, the offenses do not merge. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). Similarly, federal bank robbery does not merge with State charges of aggravated robbery (of an individual), aggravated kidnapping, and kidnapping. See State v. Smith & Miller, 224 Kan. 662, 669-670, 585 P.2d 1006 (1978), modified on rehearing, 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964 (1979).
(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.
Example: An assault and battery, following which the victim broke away, does not merge with and is distinct from forcible rape, which occurred at a later time and at a different place. See State v. James, 216 Kan. 235, 531 P.2d 70 (1975).”
We have held, applying earlier versions of the above principles, that the State may not charge a defendant with both pos session of marijuana with intent to sell, and sale of marijuana, where the same quantity of marijuana underlies both charges. State v. Thornton, 224 Kan. 127, 130-131, 577 P.2d 1190 (1978). There we held, because the same marijuana was at issue in both counts, that the “intent to sell merged into the crime of sale when the sale was consummated.” 224 Kan. at 131.
Applying the Games principles to the present factual situation, however, leads us to an opposite conclusion than that found in Thornton because the two counts do not involve the same marijuana. Defendant’s sale of one ounce of marijuana during the evening hours of October 1 is not the same offense as his continued possession of the remaining inventory found in the early morning hours of October 2. The two offenses do not merge since each requires proof of a fact not required in proving the other, i.e., a consummated sale, and possession of the remainder with intent to sell in the future. Although both offenses occurred inside defendant’s home, they were committed “separately and severally”; the two charges were not multiplicitous insofar as they concerned distinct activities, occurring at different times and arising out of separate contraband.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State of Kansas from an order in a criminal action directing the return of certain property, seized at the time of the arrest of the defendant, to its purported owner. The State sought destruction of the property, under K.S.A. 22-2512(4), as being contraband gambling devices. The case was transferred from the Court of Appeals pursuant to K.S.A. 20- 3018(c). The facts are not in dispute.
Defendant Linda Durst, at the time of her arrest, was an employee of the “1005 Tavern” in Kansas City, Kansas. On October 20,1982, two Kansas City police officers in plain clothes entered the tavern and began playing poker on two electronic video poker machines. One officer won twenty free games on one machine, while the second officer won eight games on the other. Defendant Durst then paid the officers cash, $5.00 for the twenty games and $2.00 for the eight games. After receiving the payoffs, the officers arrested defendant and confiscated the two machines.
Durst was charged with possessing a gambling device, K.S.A. 21- 4307. At a hearing on January 21,1983, she appeared with her attorney, pled nolo contendere to the charge, and was found guilty as charged. The court assessed a fine of $100.00 and costs.
The remainder of the January 21st hearing was devoted to a motion filed by the State that same day, requesting an order for sale or destruction of the video machines pursuant to K.S.A. 22- 2512(4). The record reflects the motion was not served on the attorney for the defendant until the time of the hearing. Although defendant claimed no ownership interest in the machines, defense counsel opposed the State’s motion on a variety of grounds requesting instead that the machines be returned to their rightful owner, purportedly “Smokey’s Unlimited, Vending Company.” Defense counsel also advised the court a replevin action had been filed the week before for recovery of the machines but nothing further is shown in the record as to the status of that case. The State argued in support of,its motion that, as used, these video game machines were gambling devices and should therefore be destroyed or, in the discretion of the court, sold as contraband. The trial court denied the motion and ordered that the confiscated machines be returned forthwith to their rightful owners. The State then requested the court to enter a stay of its order pending appeal, arguing that the evidence “had” to be kept by the police department for a certain period of time in case defendant’s plea was set aside or someone else was to be charged with a related crime. No evidence was presented by the State of any other pending charges or investigation relating to the ma chines. The trial court refused to modify its ruling and thereafter the State procured a stay order from the Court of Appeals.
In the present appeal the State repeats its claims, urging that the machines should have been ordered sold or destroyed or, in the alternative, that the State is entitled to retain the devices pending further criminal investigation and possible prosecution. K.S.A. 21-4307(1) provides:
“(1) Possession of a gambling device is knowingly possessing or having custody or control, as owner, lessee, agent, employee, bailee, or otherwise, of any gambling device.”
Gambling devices are defined in K.S.A. 21-4302(4) as:
“A ‘gambling device’ is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, or any token, chip, paper, receipt or other document which evidences, purports to evidence or is designed to evidence participation in a lottery or the making of a bet. The fact that the prize is not automatically paid by the device does not affect its character as a gambling device.”
Our prior decisions have included within the scope of this definition a variety of machines and equipment. We have, however, consistently recognized a distinction between property which is illegal per se and therefore contraband, and property which is capable of innocent use but which may become contraband in a particular case because of the illegal use made of the property. The well-known pinball machine paying a player no money or property, but merely according the privilege of additional free games, is not a gambling device per se because such additional entertainment is not property or “something of value” within the meaning of the statute. State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P.2d 225 (1953). In State v. Thirty-six Pinball Machines, 222 Kan. 416, 422, 565 P.2d 236 (1977), we said “[i]t is the actual use to which a pinball machine is put that determines whether it is possessed and used as a gambling device” and where cash payoffs are made for free games won on such machines, they are being used and possessed as gambling devices in violation of the statutes and therefore become contraband. In the recent case of Games Management, Inc. v. Owens, 233 Kan. 444, 662 P.2d 260 (1983), we held that electronic video poker and blackjack machines, similar if not identical to the machines in question, were not gambling devices per se under K.S.A. 21-4302(4) because the offer of only free replays as a prize did not constitute “something of value” and the machines are capable of innocent use.
The State asserts that as the free games won on the two poker machines in the instant case were paid off in cash, the machines as used were gambling devices and therefore contraband under K.S.A. 22-2512 which provides in pertinent part:
“When property seized is no longer required as evidence, it shall be disposed of as follows: . . . (4) Articles of contraband shall be destroyed, except that any such articles which may be capable of innocent use may in the discretion of the court be sold and the proceeds disposed of as provided in subsection (2) [paid to the state treasurer].”
Defendant, on the other hand, asserts that under our holdings in Games Management, Inc., and earlier cases, the machines are capable of innocent use, are not gambling devices or contraband per se, and should be disposed of under subsection (6) of the statute, which provides:
“(6) Unless otherwise provided by law, all other property shall be disposed of in such manner as the court in its sound discretion shall direct.”
In Thirty-six Pinball Machines the State filed an action pursuant to K.S.A. 22-3901 et seq., asserting the machines were possessed and used as gambling devices and. should be destroyed. The machines had been seized from various bars and restaurants, the owners of which were lessees or bailees and not the owners of the machines. Criminal charges were brought against the lessees or bailees of the machines because they allegedly were making cash payoffs for free games won in playing the machines. Some of the lessees or bailees were convicted of possessing gambling devices based upon the use of eleven of the machines. This court found that the twenty-five machines not involved in gambling activities were properly ordered returned to their owners as they were not gambling devices per se and were capable of innocent use. The court found the other eleven machines to be contraband because of their use as gambling devices and that K.S.A. 22-2512(4) applied. The court in its opinion stated:
“The above statute [K.S.A. 22-2512(4)] contains no definition of contraband. However, articles of contraband are generally understood to be goods which are illegal or prohibited; goods or merchandise the importation, exportation or sometimes possession of which is forbidden by law or treaty. (Webster’s Third New International Dictionary, unabridged.) In our present case gambling de vices are contraband since their possession is forbidden by law. (K.S.A. 21-4307.)”
See also State, ex rel., v. Bissing, 210 Kan. 389, 502 P.2d 630 (1972). However, it must be kept in mind that in all cases previously considered by this court the owners or persons claiming an interest in the alleged gambling devices were personally before the court as defendants, parties, or had been given notice in appropriate in rent actions filed against the property itself.
We have previously applied the provisions of K.S.A. 22-2512(4) in a number of cases. At the outset, however, we note:
“Statutes for the seizure and destruction of property are highly penal and must be strictly construed against the state and in favor of the owner. They should not and cannot be enlarged or extended by courts with the aid of inferences, implication and strained interpretations, but such actions must be fully justified by the statute. Its language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purposes for which the statute was enacted.” State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. at 760.
See also Games Management, Inc. v. Owens, 233 Kan. at 447.
Appellee in the instant case asserted before the trial court and again on appeal that to order the destruction or sale of these machines under the facts of this case would constitute a taking of property without due process of law in contravention of both the United States and Kansas Constitutions. We agree.
Due process of law has been considered and defined in literally hundreds of Kansas cases arising in a myriad of factual situations. At a minimum the essential elements of due process in an action affecting a person’s life, liberty or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. U.S.D. No. 461 v. Dice, 228 Kan. 40, Syl. ¶ 1, 612 P.2d 1203 (1980). Also see cases digested under 3A West’s Kansas Digest, Constitutional Law § 251.6 (1984 Supp.) and annotated in K.S.A. Constitutions under the Fifth and Fourteenth Amendments to the United States Constitution.
K.S.A. 22-3901 et seq. establish a procedure, which meets the test of due process, for enjoining the use of and abating real and personal property used in unlawful activities. 22-3901 sets forth certain unlawful activities including “(c) [possession of gambling devices”; 22-3902 establishes a procedure to be followed by the State through the attorney general or district or county attorney with appropriate due process safeguards; 22-3903 authorizes proceedings in rem against real or personal property and provides “[sjummons shall be served on the owner or person in possession of such property. Any person claiming an interest in the property shall, upon application, be permitted to intervene as a party defendant,” and 22-3904(2) provides for judgment and disposition of personal property used in any of the unlawful activities set forth in 22-3901. We have held that the forfeiture provisions of K.S.A. 22-3901 et seq. and K.S.A. 22-2512 must be considered in pari materia, are not in conflict with each other, and are constitutional. Thirty-six Pinball Machines, 222 Kan. at 420, 422.
The requirement of notice to, and an opportunity to be heard by, the owner of or others interested in property prior to its forfeiture is clearly implied in cases from other jurisdictions. See United States v. Thirteen (13) Gambling Devices, 559 F.2d 201 (2d Cir. 1977); United States v. 18 Gambling Devices, 347 F. Supp. 653 (S.D. Miss. 1972); State v. One Red M.G. Convertible, 6 Conn. Cir. Ct. 282, 271 A.2d 130 (1970). Disposition of property alleged to be contraband because of its use in a gambling operation is subject to the right of the owner or others claiming an interest therein to dispute the question of whether the item is contraband, and have a judicial determination of the issues. State v. Rodriguez, 138 N.J. Super. 575, 351 A.2d 784 (1976), aff'd 73 N.J. 463, 375 A.2d 659 (1977). A statute for the mandatory forfeiture of machines not contraband per se, which provides no opportunity for hearing and makes no provision for notice to the owner of the devices or for substituted service in an in rem action, does not conform to the requirements of due process; only where procedures are followed to assure no infringement of an owner’s due process rights, and to secure judicial determination of his rights with respect to game machines, may a forfeiture statute be constitutionally applied. Smith v. One Super Wild Cat, 10 Or. App. 587, 500 P.2d 498 (1972). See also Annot., 14 A.L.R.3d 366.
Upon review of the prior cases where we have approved forfeiture of private property through sale or destruction, one fact is clear: the State must first proceed in some manner against the owners or against the property itself. Without exception, all prior forfeiture cases of this type have been in rem proceedings against the property, with concomitant rights of notice and an opportunity to be heard, or actions in which the party asserting an interest in the property is a party to the action. See Van Oster v. Kansas, 272 U.S. 465, 71 L.Ed. 354, 47 S.Ct. 133 (1926), affirming State v. Brown, 119 Kan. 874, 241 Pac. 112 (1925), (plaintiff owned automobile used without her knowledge by another to illegally transport liquor; plaintiff intervened in forfeiture proceedings after receiving notice); State v. Six Slot Machines, 166 Kan. 361, 201 P.2d 1039 (1949), (in rem proceeding against slot machine; owner answered after receiving notice of confiscation); State v. Twenty Nine Slot Machines, 184 Kan. 429, 337 P.2d 689 (1959), (in rem proceeding with notices personally served on owner); State, ex rel., v. Bissing, 210 Kan. 389, (action in abatement under K.S.A. 22-3901, in personam as to defendant owner/operator and in rem as to the property); and State v. Thirty-six Pinball Machines, 222 Kan. 416, (action in abatement where, though not apparent owners received notice, they were nevertheless present and participating in the proceedings). The State has cited us to no cases or authority which would authorize the ex parte destruction of private property without some compliance with the due process requirements of notice and an opportunity to be heard.
The fundamental importance of notice and hearing requirements is amply demonstrated in this case where the manner in which the State has proceeded against the two poker machines contains no due process protections for the owner of the machines. The State has failed to proceed against the property itself in an appropriate abatement proceeding and does not have the owner or any other person claiming an interest in the property before the court as a defendant in the present action. Instead the State seeks a mandatory application of K.S.A. 22-2512(4) as a simple post-judgment order in a criminal case without any notice to or opportunity to be heard by those who may have an interest in the property to be destroyed. The State seeks to justify its action by asserting this defendant lacks standing to contest the sale or destruction of the property. The trouble with this argument is that it is the State’s own action and proceeding which seeks destruction of property without any semblance of an attempt to follow due process of law. To allow the State to take advantage of its own failure to afford due process to others would be a flagrant violation of the constitutional and statutory rights of the owners of the property.
We conclude that it would be a violation of the right to due process of law to apply the forfeiture provisions of K.S.A. 22-2512(4) in the manner requested by the State. What the State proposed before the trial court amounted to an unconstitutional application of K.S.A. 22-2512(4), and the trial court did not err in refusing the request. Although the exact basis for the trial court’s ruling is not clear, we have often held that the correct result reached even if for the wrong reason will still be upheld. Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980).
Finally the State claims that even if the property may be returned to its owner, it should not be released because it is needed for “future investigations.” The trial court found no merit to this argument and no evidence was presented to support it. It has been over seventeen months since the property was seized by the State and no additional charges or investigations are shown by the record. Under the facts of this case, where the State has taken no valid action which would authorize destruction or sale of the property we cannot say that the trial court was in error in ordering the property returned to the owner.
The stay order issued by the Court of Appeals is dissolved and the judgment of the trial court is affirmed.
McFarland, J., concurs in the result. | [
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Per Curiam:
This is an appeal by the defendants, Andrew M. Larson and Jean M. Larson, from an order of the Finney District Court overruling six motions filed by the appellants in an original condemnation proceeding commenced by the Secretary of Transportation. Since we dispose of this case on jurisdictional grounds, a statement of the procedural background is necessary.
John B. Kemp, Secretary of Transportation of the State of Kansas, commenced this action by filing a petition for eminent domain in the District Court of Finney County on January 20, 1983. He sought both permanent and temporary easements for highway construction, controlled access, and removal of borrow material variously from some thirty-two different tracts of real estate. The Larsons own two of the tracts, described in the petition as tract Nos. 3 and 5. The proceeding was commenced under the provisions of the Eminent Domain Procedure Act, K.S.A. 26-501 et. seq.
The trial judge fixed March 29,1983, at 2:00 o’clock p.m. as the date for hearing on the petition. All of the following dates were during the calendar year 1983. Notice was given by publication and mailing, and a hearing was held on March 29. The Larsons were present in person and by counsel, and testified at that hearing. The trial court made findings that plaintiff had the power of eminent domain and that the takings as set forth in the petition were necessary to the lawful purposes of the plaintiff. The court then entered an order appointing three disinterested householders of Finney County to view and appraise the lands and to determine the damages to the interested parties resulting from the taking. The appraisers were directed to file a report on April 18; that deadline was later extended to May 27. The trial court instructed the appraisers. Thereafter, they gave notice by publication and mailing, viewed the condemned property, and held a public hearing on May 16, at which the Larsons appeared with counsel and presented evidence. At the close of the hearing, counsel for the Larsons told the appraisers that he intended' to file several motions with the court, and he asked that the appraisers give him the opportunity to secure rulings on the motions before they filed their report.
On May 3, Andrew Larson filed a motion asking the court to withhold its approval of the appraisers’ report until such time as:
“Condemnor demonstrates it has followed and complied with the provisions of the Uniform Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C.A. § 4601 et seq. and the provisions of K.S.A. 58-3501 et seq., and until the Condemnor demonstrates the taking of this landowner’s property is reasonable and necessary.”
No extension of time for the filing of the appraisers’ report was requested. The report of the appraisers, fixing the total compen sation and measure of damages for tract No. 3 at $150, and for tract No. 5 at $75,508, was filed on May 25. On May 31, Andrew Larson filed five motions: (1) for an order requiring the Secretary to produce a full set of construction plans, (2) requiring the condemnor to incorporate a set of, plans in its petition, (3) granting the landowner a second appearance before the appraisers, (4) requiring the condemnor to include'in the condemnation of the Larson property the 160 acres which are contiguous to and owned and operated as a single farm unit by the landowner, and (5) for an order disqualifying one of the appraisers, Mr. Bahr, for the reason that after approximately ten to fifteen minutes of counsel’s presentation, Mr. Bahr asked what figures the landowner was requesting as damages, and characterized counsel’s earlier presentation as “shuck and jive.”
On June 2, the trial court found that the appraisers had filed their report with the clerk of the court, and that all proceedings necessary to be done by them had been completed.. The court proceeded to fix fees for the appraisers and the guardian ad litem, and assessed those fees and accrued court costs against the Secretary. The Secretary paid the amount of the awards, fees and costs to the clerk of the court.
On June 16, the trial court heard oral ai'gument and by order dated June 18 and filed June 20, overruled all six motions filed by Andrew Larson.
On June 23, the Larsons filed a notice of appeal from the award in the District Court of Shawnee County. That proceeding remains undetermined, and is not before us in this action.
On July 5, the Larsons drew down the award for tract Nos. 3 and 5 in the total amount of $75,658.00.
On July 15, landowners filed their notice of appeal from the trial court’s decision of June 20. That notice states:
“Andrew E. Larson and Jean M. Larson, hereby appeal the Trial Court’s decision rendered ... on June 18, 1983 and filed in the form of a Journal Entry on June 20, 1983 to the Court of Appeals to the State of Kansas.”
The Docketing Statement contains similar language. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
Before turning to the issue of jurisdiction, we will first review the nature of the proceeding from which this appeal arises. Prior to the enactment of our present Eminent Domain Procedure Act in 1963 (now K.S.A. 26-501- et seq.), we considered the nature of original eminent domain proceedings in Sutton v. Frazier, 183 Kan. 33, 37, 325 P.2d 338 (1958). We said:
“An eminent domain proceeding is a special statutory proceeding and is not a civil action covered by the code of civil procedure. The proceeding is administrative rather than judicial, and its nature is the same whether conducted by or before a district court, or any judge thereof, the probate court, or its judge, a board of county commissioners or any other official board or tribunal authorized by the legislature to act in that capacity. The amount to be paid is determined by commissioners or appraisers and not by the board or tribunal appointing them or with whom they filed their report. The report of the amount found due is an award and is not a judgment. Prior to an appeal from the award the proceeding is in the nature of an inquest.
“The eminent domain proceeding does not provide a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof. Upon appeal to the district court from an award the sole issue is the amount of compensation due and no contest of the condemner’s right to exercise the power of eminent domain is permitted. The condemnees may and must litigate the condemner’s right to the exercise of the power of eminent domain in an individual civil action, usually by suit for injunction. (State Highway Commission v. Griffin, 132 Kan. 153, 294 Pac. 872; Glover v. State Highway Comm., 147 Kan. 279, 77 P.2d 189; State v. Boicourt Hunting Ass'n, 177 Kan. 637, 282 P.2d 395; Board of Education of the City of Nickerson v. Gum, 178 Kan. 397, 285 P.2d 780; and Cline v. Kansas Gas & Electric Company, 182 Kan. 155, 318 P.2d 1000.)
“Under the positive and express language of the cited cases, and many others collected in them, the condemnees (appellant’s lessors) had no right whatever to litigate in the eminent domain proceeding the extent of the power of eminent domain conferred upon Sunflower by the legislature. The eminent domain proceeding, therefore, did not afford condemnees an opportunity to litigate the condemner’s right to condemn oil and gas in place.” 183 Kan. at 37-38.
In Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P.2d 373 (1966), we considered the Eminent Domain Procedure Act of 1963. Justice Fromme, speaking for a unanimous court, quoted the first paragraph of the Sutton opinion set forth above, and then said:
“The above law is in accord with the provisions of K.S.A. 26-508 wherein an award is made and no judgment is provided for until after an appeal is docketed and tried as any other civil action. (K.S.A. 26-511.)
“The legislature has the inherent power of eminent domain limited only by constitutional restrictions. Such power may be delegated by the legislature to any public authority to be exercised as directed. So the power of eminent domain as to urban renewal has been given by the legislature to the municipality to determine that slum or blighted areas exist in such municipality and the rehabilitation, conservation, or redevelopment of such areas is necessary in the interest of public health, safety, morals or welfare of the residents of the municipality. The municipality has the exclusive right within its statutory authority in the first instance to determine what lots, parcels or tracts of land are to be taken, after public hearing provided by statute, and then file a petition to exercise the right of eminent domain. The presumption is that public agencies and officers vested with discretionary administrative powers will perform their duties in a proper manner and exercise their powers in good faith. Under our law this exercise of discretion is not subject to judicial review unless there is proof of fraud, bad faith or abuse of discretion. Even when fraud, bad faith or abuse of discretion is claimed, such questions can be litigated only in a separate independent action such as the extraordinary remedy of injunction. (K.S.A. 17-4748, 17-4749. In re Estate of Kline, 175 Kan. 864, 267 P.2d 519; Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335; State Highway Comm. v. Ford, 142 Kan. 383, 387, 46 P.2d 849; Soden v. State Highway Comm., 192 Kan. 241, 244, 387 P.2d 182.)
“The 1963 Eminent Domain Procedure Act did not change the character of the proceedings in a condemnation action. Such proceedings remain statutory in the nature of an inquest. They are notjudicial in nature and the procedures approved by prior case law in this state should be followed.” 197 Kan. at 161-62.
We have since followed Urban Renewal in Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974), where we quoted from the Urban Renewal opinion and then said:
“The above statute [K.S.A. 26-504] must be construed to mean that if the appellants seek to contest KPL’s power of eminent domain or if the appellants seek to contest KPL’s decision that the taking of the land here in question is necessary to its lawful corporate purposes the appellants must do so in an independent action. In other words, the appellants have no power to stop the progress of the eminent domain proceeding by the public utility, where the trial court grants an order determining that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff, in the eminent domain proceeding itself.” 215 Kan. at 227.
Later, in Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125 (1980), we cited and relied upon all three of these cases — Sutton, Urban Renewal, and Concerned Citizens. Paragraphs 5, 6 and 8 of the syllabus in the Winn opinion are helpful. They read:
“A condemnation proceeding instituted under K.S.A. 26-501 et seq., is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.” Syl. ¶ 5.
“The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking can only be litigated in an individual civil action, usually by suit for injunction.” Syl. ¶ 6.
“In an eminent domain proceeding the court has no right to litigate outside issues raised by the condemnee in an effort to restrict and limit the rights appropriated.” Syl. ¶ 8.
The matter before us is not a separate action, but an appeal in the original condemnation proceeding which, under the teachings of Sutton, Urban Renewal and Concerned Citizens, is a special statutory proceeding, not a civil action covered by the Code of Civil Procedure. Appellants, by their motions, sought to challenge plaintiffs compliance with certain federal and state legislation and the trial court’s March 29th determination that the takings were necessary to the lawful purposes of the Secretary — highway construction. Additionally, they sought to have the construction plans produced and made a part of the petition, to extend the appraiser’s proceedings, to amend the taking, and to disqualify an appraiser. The granting of those motions would have stopped or effectively delayed the progress of the eminent domain proceeding.
That the relief sought by the Larsons might have been pursued in an independent action for an injunction is made clear by our opinions in Sutton, Urban Renewal, and Concerned Citizens. Such a course was not pursued; relief was sought in the original special proceeding. That being the case, do the landowners have a right to appeal the adverse ruling under the facts disclosed above? We think not.
Appellants contend that this appeal is appropriate under K.S.A. 60-2102(a)(3) and (4), which reads as follows:
“(a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
“(3) An order that appoints a receiver, or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or involving the tax or revenue laws, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States.
“(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.” (Emphasis supplied.)
Appellants first argue that, because the proceeding below involves the title to real estate, this appeal lies under subsection (a)(3). In support of this argument, appellants cite the case of Smith v. Williams, 3 Kan. App. 2d 205, 592 P.2d 129, rev. denied 226 Kan. 792 (1979). That case involved a boundary line dispute between private adjoining landowners, and is not persuasive here. We do not find any cases involving eminent domain proceedings in which appeals were attempted or sustained under this statutory enactment. The appeal in Urban Renewal Agency v. Naegele Outdoor Advertising Co., 208 Kan. 210, 491 P.2d 886 (1971), is distinguishable in that it involved a distribution and division of the award pursuant to K.S.A. 26-517, under which statute the court performed judicial work, adversary in nature. Its ruling was held appealable under K.S.A. 26-504. See 208 Kan. at 214. All original eminent domain proceedings, to some extent, involve title to real estate. If appeals in original proceedings were allowed under K.S.A. 60-2102(a)(3), the original proceedings would be subject to interminable interruption and delay. As we said in McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1976):
“Our code and our rules envision and are designed to provide but one appeal in most cases, that to come after all issues have been determined on the merits by the trial court. Interlocutory and fractionalized appeals are discouraged, and are the exceptions and not the rule.”
We do not think the legislature contemplated appeals in original eminent domain proceedings when it enacted K.S.A. 60-2102(a)(3). We conclude that this appeal does not lie under that statute.
Next, appellants claim that the appeal lies under K.S.A. 60-2102(a)(4) because the court’s ruling on the motions constitutes a final decision in the action. A final order is ordinarily one which disposes of the entire merits of a controversy and reserves no further questions for future determination. See Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164 (1965). Here, some of the matters raised by appellants’ motions could have been raised in an injunction or other separate action and the rest could be raised by appropriate discovery or other motions in an appeal from the appraisers’ award taken pursuant to K.S.A. 26-504, which is docketed and tried as any other civil action. The order appealed from is clearly not a “final order.” Neither of the cited statutory provisions authorizes this appeal.
We have not overlooked appellants’ contention that the hearing as conducted by the appraisers denied the landowners due process. .This issue was not raised in the trial court, When such an issue is raised for the first time on appeal, it is not properly before the appellate court for review. Malone v. University of Kansas Medical Center, 220 Kan. 371, Syl. ¶ 1, 552 P.2d 885 (1976). Also, we note that the constitutional issue should be raised in a separate judicial proceeding, not in the original special proceeding for condemnation. As one authority states the rule:
“[Constitutional] objections are also open to an owner of land taken by eminent domain in a state in which condemnation proceedings are considered administrative and not judicial, and he is constitutionally entitled to a hearing thereon before a judicial tribunal; but he must raise such objections in certiorari or other appropriate proceedings instituted by himselfrather than in defending proceedings instituted by the condemning party.” (Emphasis added.) 1 Nichols on Eminent Domain §4.101[2] (rev. 3d ed. 1981).
We agree. The issue is not properly before us at this time.
The appeal is dismissed. | [
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ORDER OF PUBLIC CENSURE
This is an original proceeding in discipline. The complaint against Charles A. Chartier arose out of a complaint alleging that respondent had neglected legal matters entrusted to him in connection with the probate of the estate of Allan Y. Gooldy.
The complaint was heard by a panel of the Kansas Board for Discipline of Attorneys on June 3, 1982. The hearing panel found there was clear and convincing evidence that respondent neglected a legal matter entrusted to him in that he neglected to file or to follow up on the inheritance taxes of the estate of Mr. Gooldy. Respondent filed exceptions to the panel report.
Respondent was retained to represent Jack Gooldy as executor of the estate of Allan Y. Gooldy, who died October 20, 1979. The deputy clerk of the Geary County District Court testified that the Petition for Probate of tíre Will was filed October 30, 1979. The court clerk testified that the court file was apparently lost. There was no formal procedure for checking out files from the Geary County Clerk’s office until recently. The appearance docket, however, which is on microfilm, was produced at the hearing. The docket showed the last entry was an Order of Continuance filed January 22,1980. The clerk further testified that although it was possible other documents could have been filed in the case that did not appear on the docket, it was not likely because of the procedure used to receive documents and file them. At the hearing respondent introduced copies of papers from his file, including a Petition for Final Settlement and a Journal Entry of Final Settlement.
Testimony was presented at the hearing by Mr. Chartier and Parvin Gooldy, the executor of the estate, that on October 29, 1980, the sole heir of the estate, Alan J. Gooldy and the executor signed the final settlement papers involving the estate. At this time all but $1500 of the property of the estate, left after expenses, was turned over to the heir Alan J. Gooldy. The $1500 was placed in an account in the name of the estate to pay for state inheritance taxes which had not yet been determined. The final settlement represents that the taxes were already paid. Mr. Chartier testified that the final settlement represented payment of the taxes because he had submitted the inheritance tax return to the Geary County District Court for its certification. He testified further that it was the practice of that court to send the return on to the inheritance tax division of the Department of Revenue after it was certified. The executor gave Mr. Chartier two blank signed checks to pay for the tax when it was determined. It was uncontroverted that the Kansas Inheritance Tax Report for the estate was never received by the Departmént of Revenue. This complaint involves the nonpayment of the state inheritance taxes. The executor and heir of the estate made many calls to the respondent requesting that he pay the taxes and release the balance of the funds. The respondent did not return many of these calls. The respondent had estimated the estate’s inheritance tax liability at approximately $1200.
DR 6-101(A)(3), 230 Kan. cxxii, provides that a lawyer shall not “[n]eglect a legal matter entrusted to him.” This rule has been recently discussed by this court in State v. Dixon, 233 Kan. 465, 664 P.2d 286 (1983). Dixon involved an attorney who had failed to complete the estates for some twenty-three clients for periods up to twenty years. The Dixon court stated: “this court has held that the consistent practice of accepting cases and neglecting to perform or complete the legal services contemplated is a violation of DR 6-101(A)(3).” 233 Kan. at 470.
The Dixon court further cites State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974). Alvey is much more similar to this case than Dixon. Of the three complaints in Alvey, one involved a divorce matter which Mr. Alvey had failed to complete. This court found Mr. Alvey’s failure to return his client’s phone calls and letters to be particularly wrongful. The court publicly censured Mr. Alvey for this behavior.
The Dixon court, however, also stated: “The courts have held that an attorney’s pattern of conduct in the case of a single client can amount to a violation of DR 6-101(A)(3).” 233 Kan. at 470. Therefore, even though Chartier’s conduct involved only one client and not several as in Dixon, the behavior can still be held to be unethical.
The panel of the Kansas Board for Discipline of Attorneys recommended public censure. This court is not bound by the recommendations, as recognized in State v. Zeigler, 217 Kan. 748, 538 P.2d 643 (1975). We hold the evidence clear and convincing Charles A. Chartier violated DR 6-101(A)(3) by neglecting a legal matter entrusted to him.
It is Therefore By The Court Ordered that the report of the panel of the Board for Discipline of Attorneys be and the same is accepted and approved.
It is Further By The Court Ordered that respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent, and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports.
Effective this 21st day of October, 1983. | [
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The opinion of the court was delivered by
McFarland, J.:
These are consolidated appeals from summary judgments foreclosing subcontractors’ mechanics’ liens on certain oil and gas leases in Meade and Clark counties, Kansas.
Calvert Western Exploration Co. is the plaintiff in both actions and seeks enforcement of subcontractors’ liens arising from the performance of drilling services. Defendant Diamond Shamrock Oil and Gas Company is the owner of the Meade and Clark County leases on which foreclosure is sought. The other named defendants have no separate positions from that of Diamond Shamrock and their defense of the actions as well as the bringing of the appeal herein has been conducted by Diamond Shamrock. No purpose would be served in this opinion by listing such other defendants herein and stating their precise involvement in the action. We shall, henceforth, just refer to the one defendant, Diamond Shamrock. Intervenor Speedy Oilfield Service transported Calvert Western’s drilling rig from the Clark County lease of Diamond Shamrock to the Meade County lease of Diamond Shamrock and its mechanic’s lien is based upon the transportation services performed.
Having identified the parties, we turn now to the facts. On May 8, 1981, Calvert Western entered into what is known in the oil and gas industry as a “daywork contract” with Love Enterprises of Texas. Under the contract Calvert Western was to provide Love Enterprises with a drilling rig and crews for the drilling of “various” oil and gas wells in Baca County, Colorado; Seward County, Kansas; Cimarron County, Oklahoma; and “other wells in the panhandle area.” Love agreed to pay $6,050.00 per day for the entire six-month period of the contract, whether or not the rig was in actual use. The rig was to be provided after it was no longer utilized in the drilling of an Amoco well in Colorado. The rig was released from the Amoco site on May 13, 1981, the effective date of the commencement of the six-month contract period.
On June 5, 1981, Love Enterprises entered into a daywork contract with Diamond Shamrock to drill a well on its oil and gas lease in Clark County, Kansas (Pfeifer No. 3). Love was to be paid $5,000.00 per day for the drilling job. The Calvert Western rig and crews were in Colorado drilling the Baca County well as per Love’s instructions, having completed the Amoco job. Love directed Calvert Western to move the rig to the Clark County site. On June 9, 1981, the rig and crews arrived in Clark County. Drilling commenced and the well was completed.
On June 26,1981, Love and Diamond Shamrock entered into a second daywork contract for the drilling of a well in Meade County, Kansas (Reimer No. 2). The per day rate was $5,000.00 plus Diamond Shamrock was to pay the cost of moving the rig. Love hired Speedy Oilfield Service to move the rig which was accomplished on July 13, 14 and 15,1981. The cost of the move was $6,995.21.
Before the move, Calvert Western billed Love for $116,490.00. Payment was due in early July. On July 6, 1981, Love issued a check for the full amount to Calvert Western. On July 10, 1981, Calvert Western was advised payment on the check had been stopped. On July 13, 1981, the owner of Love Enterprises (Thomas Etheredge) appeared in the home offices of Diamond Shamrock in Texas seeking immediate payment of $164,968.21 due under the June 5, 1981, Clark County daywork contract. Diamond Shamrock complied with Love’s request.. Later on the same day Calvert Western telephoned Diamond Shamrock’s home office advising it owned the rig and would probably file a lien. Diamond Shamrock then directed no drilling occur in Meade County (the rigging-up had been completed).
On July 23, 1981, Calvert Western sued Love Enterprises in the District Court of Tarrant County, Texas. On August 25, 1981, the Texas court entered judgment against Love for $395,073.33 based upon $116,703.20 for Baca County work, $195,938.78 for Clark County, and $34,031.35 for Meade County. On September 25, 1981, Calvert Western executed a “Release of Judgment Lien” in favor of Love Enterprises. The release resulted from an agreement by Love Enterprises to pay Calvert Western $72,000.00 in cash and to issue a promissory note of $323,073.33, for the remainder. In a letter dated October 6,1981, to Mr. Kelly, President of Calvert Western, Mr. Etheredge, of Love Enterprises, revealed it was his intention the $72,000.00 cash payment should apply first to the oldest dated invoice upon which the Texas judgment had been entered — i.e., the Baca County debt of $116,703.20.
Meanwhile in August, 1981, Calvert Western filed suit in Clark and Meade counties to foreclose its oil and gas liens on Diamond Shamrock’s leases. Calvert Western contended it was entitled to foreclosure under K.S.A. 55-207 as it was an oil and gas subcontractor to the Diamond Shamrock-Love Enterprises contract. Speedy Oilfield Service intervened in the Meade County action seeking foreclosure, as a subcontractor of Diamond Shamrock, of its lien upon Diamond Shamrock’s lease for having moved the rig from Clark to Meade County. The Clark and Meade County cases were consolidated below in an action in Clark County District Court.
Calvert Western and Speedy Oilfield Service filed for summary judgment and on December 6 and 10, 1982, the district court granted the motions. In so doing, the court found Calvert Western had been a subcontractor of Diamond Shamrock through Love Enterprises and/or Maranatha Oil and Exploration Corporation and, as such, had been entitled to relief and protection as afforded by K.S.A. 55-207 through -209. The court further declared the May 8, 1981, agreement between Calvert Western and Love Enterprises had been a drilling contract and not, as contended by Diamond Shamrock, a lease of personal property. Finally, the court ruled the September 25,1981, Texas Release of Judgment Lien executed by Calvert Western to Love Enterprises had not been intended to extinguish or cancel the obligation created by the May 8, 1981, agreement. As to intervenor Speedy Oilfield Service, the district court held it had been a subcontractor of Diamond Shamrock with a valid lien on Diamond Shamrock’s Meade County oil and gas lease. The court then granted foreclosure of all liens on Diamond Shamrock’s Clark and Meade County leases. Diamond Shamrock appeals from the judgment.
The first issue before us is whether the district court erred in holding the May 8, 1981, daywork drilling contract between Calvert Western and Love Enterprises was a drilling contract rather than a lease of personal property.
In Wilkinson v. Pacific Mid-West Oil Co., 152 Kan. 712, 714, 107 P.2d 726 (1940), we held the rental or value of use of machinery could not be the basis for a claim of a mechanic’s lien. See also American Nat’l Bank v. Central Construction Co., 160 Kan. 400, 405, 163 P.2d 369 (1945).
Was the May 8,1981, agreement between Calvert Western and Love Enterprises a lease of personal property (a drilling rig) so as to preclude an oil and gas lien by plaintiff upon defendant’s oil and gas leases? Defendant contends the May 8, 1981, agreement was a lease and relies on Corpus Juris Secundum which defines a lease in the following manner:
“The word ‘lease,’ when used with reference to personal property, frequently signifies a bailment for hire for the mutual advantage of the parties, that is, a hiring of personal property for a stated period of time and for a monthly sum of money for its use, and a hiring of personalty for a fixed term is nevertheless a bailment although the hirer has an option to purchase the property before the expiration of the term.” 8 CJ.S., Bailments § 8, p. 350.
Black’s Law Dictionary (5th ed. 1979), p. 800, proclaims when used with reference to tangible personal property, the word “lease” means a contract by which one owning such property grants to another the right to possess, use and enjoy it for a specified period of time in exchange for periodic payment of a stipulated price, referred to as rent.
The difficulty with Diamond Shamrock’s argument is that Love Enterprises received more than just a drilling rig under its agreement with Calvert Western. This is reflected by the following facts. The actual operation of the rig in drilling the wells was carried on by three four-men crews supplied by Calvert Western. Under paragraph 8.4 of the contract Calvert Western was obligated to keep and furnish to Love Enterprises an accurate record of the work performed and the formations drilled on an IADC-API Daily Drilling Report form. Love Enterprises directed Calvert Western’s employees to call Diamond Shamrock daily and inform it of the work progress at the drilling sites. Paragraph 9 of the contract dealt with matters of ingress, egress, and location while paragraph 12 required Calvert Western to comply with all obligations of the contract concerning restoration of the land upon which Love was operating. Paragraph 14 provided detailed responsibilities relating to loss and damage of equipment. Under Exhibit “A” of the contract Calvert Western was to supply fuel, fuel lines, water storage tanks, mats for engines, boilers, motors and mud pumps, materials for “boxing in” the rig and derrick, and a rate of penetration recording device. In addition, Calvert Western supplied pickup trucks for transporting crews and supplies. In short, the May 8, 1981, agreement between Calvert Western and Love Enterprises was more than just the renting of a drilling rig. Rather it was a comprehensive package deal under which Calvert Western also provided personnel, equipment and services.
We conclude the district court did not err in holding the May 8, 1981, agreement between Calvert Western and Love Enterprises was a drilling contract rather than a lease of personal property.
The second issue is whether the district court erred in holding Calvert Western was a subcontractor under Diamond Shamrock’s June 5 and June 26, 1981, daywork drilling contracts with Love Enterprises.
If Calvert Western is not a subcontractor under the Diamond Shamrock-Love Enterprises contracts, then it cannot assert a subcontractor’s lien pursuant to the oil and gas mechanic’s lien statutes (K.S.A. 55-207, -208, -209 and -210).
Diamond Shamrock argues Calvert Western cannot be a subcontractor herein by virtue of the fact the Calvert Western-Love Enterprises contract was executed prior to and wholly independent of the Diamond Shamrock-Love Enterprises contracts. This argument has merit.
Corpus Juris Secundum, in its discussion on subcontractors’ and mechanics’ liens, has observed some courts define a subcontractor as one who has entered into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance. 57 C.J.S., Mechanics’ Liens § 98, p. 609. See also Rogers v. Crane Co., 180 Okla. 139, 142, 68 P.2d 520 (1937); and 53 Am. Jur. 2d, Mechanics’ Liens § 68, p. 580. In Stewart v. Cunningham, 219 Kan. 374, 548 P.2d 740 (1976), this court, when faced with an action to foreclose a contractor’s lien for labor and materials, commented a contractor was one who furnished labor or materials under a contract direct with the owner for the improvement of property (57 C.J.S., Mechanics’ Liens § 90, p. 602), while a subcontractor was one who assumed a portion of a contract from an original contractor or another subcontractor for the performance of all or part of the services or work which the other had obligated itself to perform under the contract with the owner (57 C.J.S., Mechanics’ Liens § 98, pp. 608-09). 219 Kan. at 377. See also Construction Materials, Inc. v. Becker, 8 Kan. App. 2d 394, 397, 659 P.2d 243, rev. denied 233 Kan. 1091 (1983).
In order for an agreement to be a subcontract there must be a preexisting prime contract between a principal and a contractor, the latter who then enters into an agreement with a third party, a subcontractor, for the third party to perform all or part of the prime contract.
In the instant action the prime contract between Love Enterprises and Diamond Shamrock to do drilling on the Pfeifer No. 3 site in Clark County did not come into existence until nearly a month after the Calvert Western-Love Enterprises daywork drilling contract of May 8, 1981, had been executed. The contract for the Reimer No. 2 site in Meade County was executed even later (June 26, 1981). Accordingly the May 8, 1981, contract between Calvert Western and Love Enterprises did not constitute a subcontract to the subsequent agreements between Love Enterprises and Diamond Shamrock. Therefore Calvert Western was not entitled to subcontractor’s oil and gas liens and foreclosure thereon on Diamond Shamrock’s Clark and Meade County leases. See generally McKay, The Creation and Enforcement of Mechanics’ Liens Against Leasehold and Equipment, 8 J.B.A.K. 63 (1939); Annot., Assertion of Statutory Mechanic’s or Material-man’s Lien Against Oil and Gas Produced or Against Proceeds Attributable to Oil and Gas Sold, 59 A.L.R.3d 278; Annot., Building and Construction Contracts: Right of Subcontractor Who Has Dealt Only With Primary Contractor to Recover Against Property Owner in Quasi Contract, 62 A.L.R.3d 288; and Annot., Right of Subcontractor’s Subcontractor or Materialman, or of Materialman’s Materialman, to Mechanic’s Lien, 24 A.L.R.4th 963.
We conclude the district court erred in holding Calvert Western: (1) was a subcontractor to the Diamond Shamrock-Love Enterprises contracts; (2) had valid subcontractor’s oil and gas mechanics’ liens on Diamond Shamrock’s leases; and (3) was entitled to foreclosure of such oil and gas mechanics’ liens.
The next three issues raised are as follows:
3. Whether the district court erred in granting judgment in favor of Calvert Western for an amount in excess of the contractual amounts under, the Diamond Shamrock-Love Enterprises contracts.
4. Whether the district court erred in holding the September 25, 1981, Release of Judgment Lien executed by Calvert Western in favor of Love Enterprises did not satisfy the debt herein.
5. Whether Diamond Shamrock’s refusal to permit Calvert Western to commence actual drilling on the Meade County lease defeated Calvert Western’s lien on the Meade County lease.
By virtue of our previous conclusion that Calvert Western was not a subcontractor of the Diamond Shamrock-Love Enterprises contracts and hence not entitled to subcontractor liens on Diamond Shamrock’s leases, issues 3,4 and 5 are rendered moot and need not be determined.
The sixth issue is whether the district court erred in holding Speedy Oilfield Services had a valid oil and gas lien against Diamond Shamrock’s Meade County lease and in ordering the foreclosure of same.
K.S.A. 55-213.provides:
“Any person who transports or hauls oil-field equipment under express contract with the owner or operator of any gas or oil lease-hold interest in real property, or the owner or operator of any gas pipe line or oil pipe line or the owner of any oil-field equipment and material, or with the trustee, agent, or receiver of any such owner, shall have a lien upon interest of such owner in the oil-field equipment so transported and hauled. Said lien shall include, in addition to the charge for hauling or transporting, labor performed, or materials used and expended in the transporting, erecting, dismantling, loading and unloading of any oil-field machinery, equipment or supplies hauled or transported and shall be of equal standing with the contractor’s lien provided by K.S.A. 55-207.” (Emphasis supplied.)
The work performed by Speedy Oilfield Services consisted wholly of transporting and hauling oil field equipment. Speedy concedes it is not entitled to a lien under 55-213 by virtue of the fact neither Love Enterprises nor Diamond Shamrock has any interest in the oil field equipment hauled to which the lien could attach.
Speedy Oilfield Service argues, however, the district court correctly held it was entitled to a subcontractor’s lien under K.S.A. 55-207. We do not agree. K.S.A. 55-207 provides in pertinent part:
“Any person, corporation or copartnership who shall under contract, express or implied, with the owner of any leasehold for oil and gas purposes ... or with the trustee or agent of such owner, who shall perform labor or furnish material, machinery and oil-well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well, or who shall furnish any oil-well supplies or perform any labor in constructing or putting together any of the machinery used in drilling, torpedoing, operating, completing or repairing of any gas well, shall have a lien upon the whole of such leasehold . . . .” (Emphasis supplied.)
It is the position of Speedy Oilfield Service hauling and transporting oil field equipment is so closely related to “digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well” it is entitled to a lien under 55-207 when it cannot avail itself of 55-213. We do not agree.
Oil and gas lien laws confer special privileges, are to be strictly construed against one claiming the privilege, and their scope is not to be extended beyond that clearly granted by the legislature. Interlake, Inc. v. Kansas Power & Light, 231 Kan. 251, 644 P.2d 385 (1982).
The legislature has specifically fixed the mechanic’s lien rights of transporters and haulers of oil field equipment by enactment of K.S.A. 55-212, -213 and -214. Such liens extend only to such interest in the equipment as is possessed by the owner or operator of the lease with whom the transporter has contracted. A transporter or hauler of oil field equipment claiming the privilege of an oil and gas mechanic’s lien must come within said transportation lien statutes if a lien is to be asserted. Additionally, the activities described in 55-207, digging, drilling, etc., all relate to services performed in the construction, repair, and operation of an oil and gas well and do not encompass services confined solely to transportation of equipment and incidentals necessary thereto.
We conclude the district court erred in holding Speedy Oilfield Service had a valid mechanic’s lien under the Meade County lease of Diamond Shamrock and in allowing its foreclosure.
The judgments are reversed and the consolidated cases are remanded with directions to enter judgment for defendants in accordance with this decision. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from a ruling of the district court setting aside an order of the Kansas Commission on Civil Rights (KCCR) which found respondent University of Kansas Medical Center (UKMC) and other respondents guilty of unlawful employment discrimination on the basis of sex in violation of K.S.A. 44-1009(a)(l). The various respondents will be referred to collectively as UKMC.
In view of our decision herein it is not necessary to set forth the facts in any great detail. Suffice it to say complainant, Ethel Nurge, who held bachelors, masters and doctor of philosophy degrees in anthropology was an employee of UKMC. She asserted in her complaint before the KCCR that she was discriminated against on the basis of her sex in that she did not receive equal pay for equal work done by male faculty members with similar duties and qualifications. The KCCR examiner, after a full public hearing as required by the statutes, found the complaint to be valid and ordered UKMC to “pay the complainant the sum of $34,967.19 for the differential in pay and $3,000.00 for the pain, suffering and humiliation of being a victim of discrimination, or a total sum of $37,967.19.” The award was subsequently approved by the KCCR and UKMC took an appeal to the district court pursuant to K.S.A. 44-1011.
Following a “trial de novo” the district court found no evidence of sex discrimination and set aside the order of the KCCR. Dr. Nurge and the KCCR filed a timely notice of appeal from the district court’s decision and the case was subsequently transferred from the Kansas Court of Appeals to this court under the authority of K.S.A. 20-3018(c).
At the outset we are met with a procedural matter which disposes of the issues on this appeal. Dr. Nurge and the KCCR contend it was error for the trial court to require that witnesses who had already testified before the KCCR examiner testify again in person before the court. All parties indicated in their pretrial statements that they intended to rely upon the record of the proceedings before the KCCR with only one exception. The one exception was a motion to submit additional evidence by UKMC to present an expert witness to testify on the “relative economic value of a Ph.D. degree in Anthropology, a Masters’ degree in Business Administration and a Masters’ degree in Public Administration.” At trial no such expert was presented and the motion was evidently abandoned. Thus all parties were proceeding upon the theory that the record before the KCCR would be examined by the court de novo and no new or addi tional evidence would be presented with the possible exception of the one expert witness to be called by UKMC. However, based on the trial court’s interpretation of K.S.A. 44-1011, calling for a “trial de novo,” and the court’s personal preference for hearing witnesses “live and in person,” the court required the parties to present as many witnesses as possible to re-testify before the court. Where this was not possible, the court permitted counsel to use the record previously made before the KCCR, and “treated it as any other deposition of an absent witness to be read in open court with the objections ruled upon as we go along.” Appellants contend that the ruling of the trial court requiring a re-presentation of witness testimony previously produced before the KCCR and incorporated in the record filed with the court constituted reversible error. We agree.
The determination of what is required in a “trial de novo” under K.S.A. 44-1011 has been a source of concern to this court on numerous occasions. At the outset UKMC contends there was no proper objection to the district court’s proposed procedure and that it is not now subject to review on appeal. We do not agree. A review of the record clearly indicates that the trial court was aware of the contention of all parties and that the requirement of live testimony was one which the trial court adopted over the proposals of all parties that the record of the KCCR proceedings be reviewed by the court for a determination of its own findings of fact and conclusions of law. We find the issue is appropriately before this court.
K.S.A. 44-1011 provides in pertinent part:
“The attorney general, county attorney or any person aggrieved by an order made by the commission may obtain judicial review thereof in the said court by filing with the clerk of said court within thirty (30) days from the date of service of the order, a written appeal praying that such order be modified or set aside. The appeal shall certify that notice in writing of the appeal, with a copy of the appeal, has been given to all parties who appeared before the commission at their last known address, and to the commission by service at the office of the commission at Topeka. The evidence presented to the commission, together with its findings and the order issued thereon, shall be certified by the commission to said district court as its return. No order of the commission shall be superseded or stayed during the proceeding on the appeal unless the district court shall so direct.
“The court shall hear the appeal by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue. Said appeal shall be heard and determined by the court as expedí tiously as possible. After hearing, the court may affirm the adjudication. If the adjudication by the commission is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.
“The commission’s copy of the testimony shall be available at all reasonable times to all parties for examination without cost, and/or the purpose of judicial review of the order. The review shall be heard on the record without requirement of printing.
“The commission shall be deemed a party to the review of any order by the court.” (Emphasis added.)
In Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978), we stated:
“The scope of review provided by the legislature under any appeal statute depends upon the intent of the legislature as expressed in each particular statute and as interpreted by this court. (Citations omitted.)” p. 468.
Brinson involved an appeal by the School district under K.S.A. 1982 Supp. 60-2101(d). However, in discussing the proper scope of review, the court, by way of dicta stated:
“We turn to the cases relied on by Mrs. Brinson to support de novo review. The first case is Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197. Stephens was an appeal from an order of the Kansas Commission on Civil Rights (KCCR). The authority for judicial review of a KCCR order is set forth in K.S.A. 44-1011. This special appeal statute was construed by this court in Stephens as authorizing review by trial de novo. The statute provides for a full trial of all issues.” p. 470.
The legislature modified K.S.A. 44-1011 in 1965, adding the de novo language and the reference to K.S.A. 60-238. L. 1965, ch. 323, § 7. Prior to amendment that sentence read: “The court shall hear the appeal with or without a jury and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue.” The 1965 modifications were first construed by this, court in Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975).
Stephens was an appeal by a school teacher from a decision of the district court setting aside an order of the KCCR. The issues before the court were strictly procedural, the requirements in seeking judicial review and the proper scope of review. The trial court granted the parties unlimited discovery rights and “announced its intention to conduct a trial de novo, and directed the parties to file and exchange lists of witnesses.” 218 Kan. at 223. Both parties declined to offer any new evidence and the matter was ultimately submitted to the trial court on the record from the hearing before the KCCR. On appeal to this court, the appellant alleged “the trial court erroneously conducted a trial de novo, making its own findings of fact, drawing its own inferences from the record, and substituting its judgment for that of the administrative agency.” 218 Kan. at 224. In finding that a review of the KCCR record could constitute a trial de novo under K.S.A. 44-1011, the court stated:
“Our examination of the trial court’s decision leads us inevitably to the conclusion that it did conduct the trial de novo it had said it would, in the sense that it made an independent examination of the record, made its own findings of fact and drew its own inferences, all without regard to the manner in which the commission had previously dealt with the identical evidence. It did not limit its review to determining whether the commission’s findings were supported by substantial evidence, but substituted its own judgment for that of the commission on what the evidence proved.
“We note first of all that the de novo language and the reference to 60-238 were inserted in the statute for the first time in 1965 (L. 1965, ch. 323, § 7). Prior to the amendment the sentence merely said “The court shall hear the appeal with or without a jury and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue.” The additions, presumably, were intended to make some significant change. (Curless v. Board of County Commissioners, 197 Kan. 580, 587, 419 P.2d 876; Horyna v. Board of County Commissioners, 194 Kan. 445, 448, 399 P.2d 844.) The addition of the phrase de novo surely signifies an intent that the court should hear the case ‘anew.’
“The statutory provisions authorizing the court to receive additional evidence and to ‘modify’ the commission’s order are both consistent with a true trial de novo. The statutory statement that ‘The review shall be heard on the record without requirement of printing’ we take to be a mechanical direction with a view to economy, and not a nullification of the previously granted authority to take additional evidence.
“In short, the court concludes that when the legislature called for a trial de novo (‘with or without a jury in accordance with the provisions of K.S.A. 60-238’) it meant a trial where the issues of both fact and law would be determined anew.” pp. 228-232.
Thus, it is clear that under Stephens the court recognized that a review of the KCCR record constitutes a trial de novo where the court makes independent findings of fact and conclusions of law and does not limit its determination to whether there was substantial evidence to support the KCCR findings. As all of the evidence was submitted on the record, which was acceptable to the trial court, there was no determination of whether the trial court may require live testimony and re-presentation of the evidence.
In Jones v. The Grain Club, 227 Kan. 148, 605 P.2d 142 (1980), the court again had occasion to comment upon the trial de novo requirements of K.S.A. 44-1011. The KCCR and Jones appealed from a judgment of the district court which set aside an order of the KCCR and dismissed the complaint of Jones against The Grain Club. Jones had applied for membership in the club and it was denied. Jones asserted that the denial was because he was black. The district court, without an evidentiary hearing, held that the respondent was prejudiced by delay. The finding of prejudice was based on the lapse of thirty-nine months from the date of the alleged act of discrimination to the initial hearing before a KCCR examiner. In discussing the need for an evidentiary hearing, the court stated:
“Our final consideration which is dispositive of this appeal concerns the district court’s finding of prejudice without an evidentiary hearing to support the finding. In Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975), we examined the scope of judicial review provisions in this act as set forth in K.S.A. 44-1011. We concluded that the words of the statute concerning appeal meant what they said. The district court should hear an appeal as a trial de novo. After hearing and evidence on any issue, the district court may affirm the adjudication, may set aside or modify it, or may remand the proceedings to the commission for further disposition. See K.S.A. 44-1011.
“On appeal to the district court no evidentiary hearing was attempted; therefore, the transcript of evidence made before the KCCR examiner was not in evidence in the district court. If an evidentiary hearing had been provided in the district court the transcript could have been introduced together with such other evidence bearing on the issue of prejudice.” 227 Kan. at 152-153.
In deciding Jones, the court was faced with a factual determination made by the trial court without an evidentiary hearing and, it appears, without any review of the KCCR record.
In Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), the principal issue before the court was whether the KCCR had the power under the statutes to grant damages for pain, suffering and humiliation. The district court, on appeal from the KCCR, “tried the case de novo from the transcript of the hearing before the Commission and affirmed, adopting the Commission’s findings of fact and conclusions of law.” 231 Kan. at 764. Although this court reversed and remanded the case on other grounds considerable discussion occurred pertaining to the right to a trial by jury and the trial de novo requirements of the statute. The court stated:
“The jurisdiction and authority of the district court on review can be no greater than the authority of the KCCR even if the matter is heard on appeal in the nature of a trial de novo. The statute provides that the court shall hear the appeal with or without a jury and the court, in its discretion, may permit additional evidence on any issue. As the statute reads, neither party has an absolute right to introduce additional evidence. ‘The review shall be heard on the record without requirement of printing.’ . . .
“. . . On appeal to the district court under K.S.A. 44-1011 the person aggrieved files ‘a written appeal praying that such order be modified or set aside.’ This is filed with the clerk of the district court and a copy is sent to the KCCR. Thereupon the record made before the KCCR is forwarded to the district court. No additional pleadings are provided for and it is not clear when a request for jury should be filed. It appears clear from the statute that trial by jury would be at the discretion of the district judge, and the record made before the KCCR would be read to the jury.
“It seems apparent from the statutes that neither the proceedings before the KCCR nor the appeal proceedings before the district court contemplate a truly evidentiary jury trial. Review proceedings on the record supplemented with additional evidence would not appear to be an evidentiary jury trial under constitutional guidelines.” 231 Kan. at 774-775.
Again the dicta in Woods does not address the precise issue now before the court.
Most recently the nature of the trial de novo under K.S.A. 44-1011 was discussed in Flanigan v. City of Leavenworth, 232 Kan. 522, 657 P.2d 555 (1983). In Flanigan the issue was the dismissal of an appeal from the KCCR based upon the statute of limitations and delay in bringing the matter to trial in the district court. The court stated:
“Although the matter is, in theory, tried ‘anew,’ the specter of the first trial looms in the background. Indeed, even though the statute labels the appeal a ‘trial de nouo’the proceedings are still in the nature of a ‘judicial review’ of the KCCR order. K.S.A. 44-1011. And, as the court stated in Stephens, the ‘trial de novo’ is ‘limited to those issues fairly raised in an application for rehearing before the commission.’ ” 232 Kan. at 528.
We also recognized in Flanigan that a de novo proceeding under K.S.A. 44-1011 “has elements of both an original action and an appeal” (232 Kan. at 529), and that one of the elements of a valid de novo review, as previously identified in Stephens, is an independent examination of the record.
It appears clear from our case law surrounding de novo appeals under K.S.A. 44-1011 that the essence of the action is a review of the KCCR proceedings, a review in which an independent but thorough examination of the KCCR record is of primary importance. The idea that a reviewing court is materially bound to the record of a lower tribunal is fully supported by other decisions outside the field of civil rights. We have held that a court of error and review, with the power to affirm, reverse, or modify the judgment appealed from, must decide the questions presented as they arise upon the record; such being the general character of appellate procedure, a full trial de novo would be an anomaly, and can take place only by virtue of express authority. Statutes purporting to grant the authority to hold trials de novo on appeal are to be strictly construed. See In re Burnette, 73 Kan. 609, 85 Pac. 575 (1906). Based on the distinction between original and appellate jurisdiction, we have elsewhere held that where a statute authorizes persons aggrieved by an agency decision to commence an independent action to enjoin enforcement of that decision rather than appeal the order, the proceeding is not a review but is an original action calling for full trial de novo without regard to the record of the proceedings before the agency. Atchison, T. & S.F. Rly. Co. v. Public Service Comm., 130 Kan. 777, 288 Pac. 755 (1930).
In Pledger v. Cox, 626 P.2d 415 (Utah 1981), the Utah Supreme Court stated:
“The words ‘de novo,’ meaning literally ‘anew, afresh, a second time,’ . . . have at least two possible interpretations when applied to judicial review of administrative action: ‘(1) A complete retrial upon new evidence; and (2) a trial upon the record made before the lower tribunal.’ . . .
“The meaning of ‘trial de novo’ in each statute is obviously dictated by the wording and context of the statute in which it appears and by the nature of the administrative body, decision, and procedure being reviewed.’’ p. 416.
In that case, the district courts conducting trials de novo were by statute specifically given the “duty ... to take testimony and examine into the facts of the case. . . .” Pledger v. Cox, 626 P.2d at 417. The Utah Supreme Court held that the clear legislative intent was for the courts to conduct a complete retrial upon new evidence. By contrast, in the earlier case of D. & R.G.W.R. Co. et al., v. Public Service Commission et al., 98 Utah 431, 100 P.2d 552 (1940), the question concerned a statute authorizing plenary review and instructing the courts to proceed as a trial de novo. What the Utah court stated there sheds light on our inquiry in the present case:
“To review an action is to study or examine it again. Thus, ‘trial de novo’ as used here must have a meaning consistent with the continued existence of that which is to be again examined or studied. If, in these cases, the first meaning were applied to the use of the term ‘trial de novo’ [(1) a complete retrial upon new evidence] then one could not consistently speak of it as a review, as the Commission’s action would no longer exist to be re-examined or re-studied. There would be no reason for making the Commission a defendant to defend something that had been automatically wiped out by instituting the district court action.” 98 Utah at 437-38.
The court concluded that use of the term “trial de novo” by the legislature was meant only to increase the scope of the court’s review of the agency’s record to include questions of fact as well as questions of law; therefore, the legislature had in mind the second meaning of that term: “a trial upon the record made before the lower tribunal.”
While we recognized in Flanigan that a de novo action under K.S.A. 44-1011 has elements of both an original action and a review, it appears clear that the appellate nature of the proceeding is predominant. This conclusion is evidenced by the legislature’s retention of numerous statutory references to “appeal” and “review” even after the addition of the term “trial de novo” in 1965. The change intended to be made by the de novo phrase has been found to be a widened scope of review, now including issues of both law and fact to be determined anew, rather than any sweeping changes in the fundamental nature of the proceeding itself. Stephens v. Unified School District, 218 Kan. 220.
Having determined the predominantly appellate nature of proceedings under the statute, and mindful of our earlier holdings that statutes granting de novo powers to courts of review are to be strictly construed, we conclude that the district court lacked the power to compel the witnesses to re-testify before the court as to evidence previously produced before the KCCR and incorporated into that agency’s record. To disregard the record on review is to destroy the appellate nature of these actions and engage in an entirely original proceeding for which there is no statutory authorization. The only statutory authority for a departure from the record of the KCCR is discretionary power of the court to allow “additional evidence” on any issue. A repetition of evidence already presented to the KCCR is not additional evidence which under the statute must be something in addition to or more than what is contained in the record. While it might be cumulative or supplementary in character, the statute contemplates the term “additional evidence” as being something more than a rehash or re-presentation of the original record. Any other construction of the statute would result in the probability that by requiring entirely new testimony the district courts will be unable to duplicate with precision the evidence upon which the KCCR relied in making its decision. Any resulting variation in the evidence would preclude the district courts from making their findings of fact and drawing inferences from the identical evidence used by the agency, which we previously regarded as necessary in Stephens v. Unified School District and Flanigan v. City of Leavenworth. The proceeding would no longer be an appeal and a review of the KCCR action.
We conclude the courts’ power under K.S.A. 44-1011 to hear “additional evidence on any issue” does not include the power to disregard, in whole or in part, the agency record by requiring all witnesses to re-testify live before the court. The power to hear additional evidence was included in the statute when it was first enacted, L. 1961, ch. 248, § 8, and is therefore not inherently related to the trial de novo language which was later added, L. 1965, ch. 323, § 7. To now jointly construe those two clauses as permitting disregard of the agency record, in derogation of the overall statutory scheme calling for a review proceeding, is to imbue the “additional evidence” clause with a meaning not intended either when the statute was first enacted or when later amended. The precise scope of permissible additional evidence is not before us in this case and is not necessary to our holding here, other than to note that it does not extend so far as to alter the fundamental nature of the proceeding.
We therefore hold that in a de novo review under K.S.A. 44-1011, the district courts lack the power to compel witnesses to re-testify as to matters produced before, and considered by, the KCCR and incorporated in the record of that agency’s prior proceedings. One of the primary duties of the courts in these proceedings is to conduct an independent but thorough examination of the record and make independent findings of fact and conclusions of law based thereon. The reviewing judge may read the record himself or have it read to him, or to the jury if one hears the appeal, in open court. Failure to consider the entire record, as evident in this case, constitutes reversible error. Our holding should not be construed to preclude a new presentation of the original evidence, or parts thereof, if all parties are agreeable to such a procedure and it is approved by the trial court.
We do not fault the learned trial judge in his desire to hear live testimony and be in a position to assess the candor and credibility of the witnesses. His diligence and desire to have an increased perception of the evidence is laudatory but precluded by the statute.
In closing we note that under our decision in Woods, the KCCR is not authorized to order an employer to pay damages for pain, suffering and humiliation as was done in the present case. To that extent, at least, the KCCR order should be modified by the trial court in further proceedings.
The judgment is reversed and the case remanded for a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a father against his divorced wife seeking custody of their three minor daughters or, in the alternative, for visitation rights. The trial court ordered the plaintiff to pay support at the rate of $600 per month and continued the custody hearing pending plaintiffs compliance with the child support order. Plaintiff did not comply with the child support order and the defendant wife proceeded to run a series of garnishments, obtaining a continuing order of garnish ment against the plaintiffs employer, United Airlines. Plaintiff appealed challenging the validity of the child support order and of the garnishment orders to enforce the same. The Court of Appeals reversed in an unpublished opinion filed April 7, 1983. This court granted defendant wife’s petition for review.
This case is the result of a bitter marital dispute between the plaintiff and the defendant. The parties are the natural parents of three teen-age daughters. Plaintiff and defendant were divorced in the State of California in January of 1971. Defendant was awarded custody of the three children. Conflict arose in regard to plaintiffs visitation rights and payment of child support. The factual circumstances in the case are not clear because the trial court did not make findings of fact, and because the factual issues have not been determined in a full evidentiary hearing. This present litigation started, when plaintiff filed a petition in Wyandotte County on March 30, 1979, in which he alleged that plaintiff is a resident of the State of Colorado and that defendant and the minor children are all residents of Wyandotte County.
In his petition, plaintiff also alleged that the State of Kansas is the home state of the children and has been their home for six months prior to the commencement of the proceeding. He alleged that it i-s in the best interests of the children for a court of the State of Kansas to assume jurisdiction over this matter, since one of the children’s parents has a significant connection with this state and “there is available in this state substantial evidence concerning the children’s present or future care, protection, training and personal relationships.” Plaintiff further alleged that for these reasons the district court has jurisdiction over the matters set forth in the petition. Among other things, the plaintiff alleged that by order of a district court of Colorado he is required to pay the sum of $375 per month commencing February 25, 1979, as child support, and that he is current in his payments. He alleged that, although he is paying child support, he is being denied visitation with and custody of his minor children. Plaintiff prays that he be granted custody of the minor children or, in the alternative, that he be granted reasonable visitation rights, and for such other and further relief as to the court may seem just and equitable in the premises.
Defendant Hughes filed an answer admitting that Kansas was the home state of the children and denying that plaintiff was entitled to a change of custody or visitation rights. She alleged that, following the 1971 California divorce, plaintiff kidnapped the children four times and, as a result, the California court terminated plaintiff s right to visitation. She specifically denied that plaintiff had paid any child support ordered by the California court and alleged that the Colorado action had been dismissed. She alleged specifically that from September 2, 1972, to April 1,1979, plaintiff had made no payments for child support in violation of the California court order, and that he was in arrears for child support in an amount in excess of $50,000. In her answer, the defendant prayed that plaintiff take naught by his petition for custody and that defendant be granted expenses, costs, attorney fees, and “such other and further relief as the court may deem just and equitable.” It is important to note that defendant never filed a counterclaim specifically praying for an order for child support. Thereafter, the parties filed various motions and several hearings were held. At most of the hearings, neither of the parties appeared in person.
On June 8, 1979, the district court held a hearing on motions for custody and attorney fees. It ruled that it had jurisdiction to consider the custody and visitation rights raised in plaintiffs petition and also had jurisdiction to enter a child support order since the plaintiff had consented to the jurisdiction of the court. The trial court entered an order requiring plaintiff to pay $600 per month as child support and further ordered that, if plaintiff complied with the order of child support, it would then set the matter of visitation for an evidentiary hearing. Thereafter, plaintiff filed a motion to reconsider the motion for support which was denied.
The trial court then ordered the court services department to investigate the possibility of visitation by the plaintiff. The parties were ordered to attend a visitation workshop. In June of 1980, an order of supervisory visitation was entered to allow the plaintiff the second Saturday of each month to visit with the children from 9:00 a.m. to 4:00 p.m. At this time the court also entered a judgment for past due child support in the amount of the arrears on the Kansas order which was not specifically set forth in the order.
Thereafter, plaintiff failed to pay child support. In due course, defendant obtained a garnishment order attaching plaintiffs earnings from his employment with United Airlines, Inc. Plaintiff filed a motion to restrain the garnishment for lack of jurisdiction, sought a contempt citation for defendant’s executing on the support order without court permission, and requested a hearing on support, visitation, and custody. The district court denied plaintiffs motion to restrain the garnishment and for a contempt citation, but sustained plaintiff s request for a hearing on support and custody. The plaintiff then filed a notice of appeal to the appellate courts on various orders entered in the case.
On January 22, 1982, the district court granted defendant’s motion for a continuing order of garnishment, finding that plaintiff was more than one year in arrears on child support. The court ordered United Airlines, Inc., to pay the sum of 55% of plaintiffs disposable earnings of approximately $2,803 into court on the first and fifteenth of each month until the further order of the court. Thereafter, on November 5, 1982, plaintiff filed a motion to vacate or modify the continuing order of garnishment alleging that he had overpaid the child support due under the Kansas child support order and that future payments should be limited to only $300 semimonthly. In her response to this motion, defendant alleged that child support payments were past due on the California judgment and that the garnishment order of $1,541.69 on the first and fifteenth of each month should be continued. The trial court denied plaintiff s motion to vacate or modify the continuing garnishment order. Plaintiff then filed an additional notice of appeal on December 3, 1982.
The case was argued and submitted to the Court of Appeals which reversed the trial court in an unpublished opinion filed April 7, 1983. The Court of Appeals held, in substance, that the district court had no jurisdiction over the issue of child support, because neither of the parties had sought by their pleadings to invoke jurisdiction of the court to enforce the duty of plaintiff to support his minor children. The opinion recognized that, although defendant in her answer alleged that plaintiff had failed to meet his obligation of support, no actual claim for relief in that regard was asserted by the defendant.
The Court of Appeals, in arriving at its decision, relied on Keller v. Guernsey, 227 Kan. 480, 488, 608 P.2d 896 (1980), which states in the opinion as follows:
“A parent’s duty of support may be enforced in civil proceedings in one or more of at least three ways. Depending upon the circumstances of the individual case, the proper remedy may be: (1) proceedings under 60-1610(a); (2) proceedings under 23-451 et seq.; or (3) an action to enforce the common law duty of support.”
Simply stated, the Court of Appeals reasoned that the defendant wife had failed to initiate proceedings to collect child support by using any of the three remedies suggested in Keller, so that the jurisdiction of the district court in the area of child support had not been properly invoked. It concluded that because defendant failed to assert a specific claim for child support, the district court had no jurisdiction either to enter an order for child support or to enforce the support orders entered in California or Colorado. The Court of Appeals, for that reason, reversed the district court’s order permitting garnishment on the plaintiffs earnings for child support due either under the Kansas order or a judgment of another state. We granted the defendant’s petition for review.
The basic issue presented for determination is this: Did the district court in the proceedings brought by plaintiff for child custody or rights of visitation have jurisdiction to enter a new order of support and to permit defendant to enforce that order by garnishment proceedings?
We have never before had occasion to rule on the specific question presented. Courts in other jurisdictions take opposing views. In 17 A.L.R.3d 764, there is an extensive annotation on a court’s power in habeas corpus proceedings relating to custody of a child to adjudicate questions as to child support. Cases on both sides of the issue are set forth and discussed. Those cases which have denied jurisdiction of a court to award child support in proceedings brought to determine the custody of a child do so on the rationale that habeas corpus or other statutory procedures do not provide for support orders in such cases. Other courts take the view that a support order in such a proceeding is proper because a proceeding for the custody of a child is, by its nature, an equitable proceeding, and a court of equity, having assumed jurisdiction, will do complete justice in the case. For a good discussion of the question see Howarth v. Northcott, 152 Conn. 460, 208 A.2d 540 (1965), 17 A.L.R.3d 758.
In Howarth, the Connecticut court followed those jurisdictions holding that, in a child custody proceeding, a court may make an appropriate order for support. In reaching that conclusion the court reasoned as follows:
“The primary purpose [of this habeas corpus proceeding] is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child. . . . [Citations omitted.] The jurisdiction exercised by the court rests on its inherent equitable powers and exerts the force of the state, as parens patria, for the protection of its infant ward [Citations omitted]. The very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity.” pp. 464-65.
The Howarth opinion then points out that, in an equitable action, the court endeavors to do complete justice, and states that an important factor for consideration respecting the welfare of a minor child is the matter of his financial support. In a child custody proceeding, the court should have available to it the broadest possible base upon which to determine what course will best serve the welfare and happiness of the child.
It is important to note that, in Howarth, the question of child support had never been made an issue in the formal pleadings filed by the parties. The defendant argued that the court could not award support because it was not made an issue by the pleadings. The court recognized that good practice requires that a specific claim for support should be made in all cases in which it is sought, and that the trial court should have required it to be done in that case. The court then noted that the defendant had not appealed immediately from the child support order and had recognized the validity of the order to the extent of seeking a modification of it.
Under all the circumstances in this case, we have concluded that the order of the district court requiring plaintiff to pay child support in the amount of $600 per month was a valid order and that the trial court had jurisdiction to enter the order. The rationale of Howarth is consistent with basic principles of law recognized by the appellate courts of Kansas in past decisions. It would be helpful to review some of those principles of law:
The paramount concern of courts in every child custody proceeding is the welfare and best interests of the child. In the interest of a minor child’s welfare, a court of this state, when the child is physically present therein, has jurisdiction over his care, custody and control, although the court of a sister state has “concurrent jurisdiction.” Miracle v. Miracle, 208 Kan. 168, 490 P.2d 638 (1971); In re Johnson, 210 Kan. 828, 504 P.2d 217 (1972); In re Nelson, 216 Kan. 271, 276, 531 P.2d 48 (1975).
In determining the right to the custody of a child, the court is dealing with a matter equitable in nature where the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration. Price v. Price, 187 Kan. 292, 297, 356 P.2d 1013 (1960). For example, the equitable doctrine of clean hands is applicable in a child custody proceeding and may be considered in determining the issue of child custody. Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971); Anderson v. Anderson, 214 Kan. 387, 520 P.2d 1239 (1974).
In a proceeding which is equitable in character, the court has the power and authority to make a full and final adjudication of all matters properly before it when necessary for a complete and final adjudication. The court is not compelled to leave such matters for separate and future litigation. Row v. Artz, 168 Kan. 71, 73, 211 P.2d 66 (1949). Stated in another way, where a court of equity has all the parties before it, it will adjudicate upon all of the rights of the parties connected with the subject matter of the action, so as to avoid a multiplicity of suits. Seibert and Lykins v. Thompson, 8 Kan. *65 (1871).
Considering these basic principles and the authorities cited above, we hold that, in a proceeding relating to child custody or visitation, a district court may order child support payments. We believe that the restrictive view to the contrary, that it cannot, only encourages multiplicity of litigation and waste in the administration of justice. We hold that where a trial court has before it the question of child custody or rights of visitation, the court may properly condition a father’s rights of visitation upon his payment of child support, after considering the history of the parties’ relationship, the age of the children, and the past conduct of the noncustodial parent in exercising rights of visitation. Although there is responsible authority for the view that visitation rights should not be conditioned upon the payment of support, based upon the theory that visitation aids the child’s psychological development whereas support caters to the child’s physical needs, we believe that the better view is to allow a trial court, in its discretion, to condition visitation rights upon the father’s payment of reasonable child support. To do otherwise would amount to overindulging an irresponsible father in preserving his right of visitation, while refusing to use one of the better means available to the court to encourage him to discharge his obligation of support. See, in this regard, Reardon v. Reardori, 3 Ariz. App. 475, 415 P.2d 571 (1966).
In the case now before us, we find no abuse of discretion in the order of the district court which requires the plaintiff to pay $600 per month child support as a condition to obtaining rights of visitation. Plaintiff obviously recognized that payment of child support was a proper consideration for the court when he alleged in his petition that he was current in his child support payments. This allegation was denied in defendant’s answer. Both parties prayed for equitable relief. The court was advised that the plaintiff, as a pilot for United Airlines, was making in excess of $60,000 per year. There is no real contention in the record by plaintiff that a child support order of $600 per month for the support of his three teen-age children would be unreasonable. We have thus concluded that the district court did not abuse its discretion or commit reversible error in entering a child support order of $600 per month. We thus affirm the trial court’s order for child support in that amount and turn now to the issue of the continuing garnishment order for the collection of past due child support ordered by the California court.
We agree with the Court of Appeals that the garnishments authorized for the collection of support due under the judgment of the California court were improper. The defendant at no place in her answer asserted a claim to enforce the child support judgment entered in the State of California in 1971. Absent an appropriate pleading setting up a claim or counterclaim to enforce the California judgment, the enforcement of the California support order was beyond the jurisdiction of the Kansas district court. At no place in the record do we find a copy of the California judgment. The plaintiff was never afforded a hearing to determine the sums which might be past due on that judgment. On this issue, we agree with the Court of Appeals that the order for a continuing garnishment to enforce the California judgment was void for want of jurisdiction.
For the reasons set forth above, we uphold the judgment of the district court requiring plaintiff to pay $600 per month child support and the garnishments enforcing the same. We reverse the district court’s orders permitting defendant to maintain garnishment proceedings for the enforcement of the California judgment. We remand the case to the trial court with directions to afford the parties a full and complete hearing on all issues raised by the parties either in present or amended pleadings. It is further ordered that defendant should not be permitted to pursue further garnishment proceedings until a full hearing has been afforded the plaintiff by the district court. | [
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The opinion of the court was delivered by
McFarland, J.:
Defendants Thanh Van Pham, Cau Tran and Ngan Van Pham were convicted in a joint jury trial of two counts of first-degree murder (K.S.A. 21-3401). Each defendant has appealed his conviction and said appeals have been consolidated.
On the evening of June 12, 1982, two Vietnamese men, Den Nguyen and Phong Vihn Thanh Tran were seated at a table in a crowded social club known as the Vietnamese Center which was located at 21st and Arkansas in Wichita, Kansas. According to eyewitnesses the three defendants came into the Vietnamese Center and sat down at the table occupied by the two men. The five gentlemen visited briefly. Thereupon the three defendants stood up, produced guns, and fired a total of 15 to 17 bullets into their hosts. The three defendants then left the building by separate exits and drove away in one car. Additional facts will be stated later in the opinion as are needed in the discussion of particular issues.
The first issue on appeal is alleged error by the district court in refusing to sever the trials of the defendants.
The defendants were all charged in one complaint/information. Each defendant, on appeal, claims error in refusing to sever the trials. We shall first dispose of the issue as it relates to Thanh Van Pham. The record reflects this defendant did not request a separate trial.
K.S.A. 22-3204 provides:
“When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.”
Ry not requesting a separate trial, Thanh Van Pham has waived the right to make such a request. See State v. Jones, 222 Kan. 56, 58, 563 P.2d 1021 (1977).
We turn now to this issue as it relates to defendants Cau Tran and Ngan Van Pham.
On September 3, 1982, defendant Cau Tran, through his attorney, Mr. Paul D. Hogan, filed a motion for severance from defendants Ngan Van Pham and Thanh Van Pham. In his motion Cau Tran alleged:
“1. Evidence in this cause may be introduced by the prosecution which may be inadmissible against this defendant but which may be admissible against one or more of his co-defendants, all to the prejudice of this Defendant.
“2. The jury will have insurmountable difficulty in distinguishing the alleged acts of this Defendant from the alleged acts of his co-defendants.
“3. During the course of the trial, Cau Tran intends to call as a defense witness the co-defendant, Ngan V. Pham, whose testimony would establish his innocence of the crime charged. A joint trial of the defendants in this cause would preclude Cau Tran from presenting all of the facts and circumstances surrounding the incident to the jury in light of the constitutional provisions that would unquestionably be involved by the co-defendant.
“4. The defenses of the defendants in this cause are antagonistic.”
Four days later, September 7, 1982, defendant Ngan Van Pham filed a motion for separate trial through his attorney Mr. Phillip Leon. Mr. Ngan Van Pham alleged a trial with his codefendants would deny him due process of law and, further, he intended to call defendant Cau Tran as a defense witness. Finally, according to defendant Ngan Van Pham, denial of a separate trial would deny him the constitutional right to present all facets of his case.
On September 10, 1982, the motions of defendants Cau Tran and Ngan Van Pham were argued before Judge Hal Malone. During oral argument on the motions, Mr. Hogan revealed Mr. Tran would assert he acted in self-defense. Mr. Hogan orally modified his motion for severance arguing it was only necessary his client, Cau Tran, be separated from Ngan Van Pham, but it was satisfactory if he were to be jointly tried with defendant Thanh Van Pham.
Mr. Leon argued a joint trial between the defendants would be prejudicial to his client, Ngan Van Pham, as evidence which would be inadmissible as to Ngan Van Pham would be admissible as to one or more of the codefendants. Mr. Leon never identified what this evidence would be. The main thrust of Mr. Leon’s attempt to have Mr. Ngan Van Pham severed was that his client was going to assert an alibi and wanted to call Mr. Cau Tran to testify Ngan Van Pham was not in the vicinity at the time of the killings. Mr. Leon feared constitutional dictates could preclude him from examining defendant Cau Tran at trial. Mr. Hogan also argued to the court the similarity in the names of the Vietnamese defendants and witnesses would cause great difficulty at trial and confuse the jury to the prejudice of the defendants.
In response to the two motions for severance, Mr. Waller, for the State, brought to the court’s attention the crimes alleged were part of a single transaction, and the State’s evidence would show all three defendants simultaneously gunned down the two victims, Mr. Den Nguyen and Mr. Phong Vihn Thanh Tran. In other words, the State argued the evidence would show all of the events, all of the evidence, arose out of the same transaction. The State found nothing inherently antagonistic in the self-defense theory of defendant Cau Tran and the alibi defense of Ngan Van Pham.
In denying defendants Cau Tran and Ngan Van Pham’s motions for severance, Judge Malone commented:
“THE COURT: Well, there isn’t any question but what there is statutory authority for charging all three of the Defendants in the same Information and trying them all together. As Mr. Waller points out, it’s one transaction, single transaction. The, I guess, crime makes strange bedfellows the same as politicians — politics makes strange bedfellows. I don’t perceive a great deal of difficulty in the similarity of names, at least not enough to sever the trials, and the defenses claimed by the two Defendants are not antagonistic. I conclude the Defendants have failed to state sufficient reasons to sever themselves from the trial. The motion — each motion is overruled.”
K.S.A. 22-3202(3) allows two or more defendants to be charged in the same criminal complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting a crime or crimes. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. (See also Vernon’s Kansas C. Crim. Proc. §22-3202 [1973]; Fed. R. Crim. Proc. 8.) As previously noted, 22-3204 provides when two or more defendants are jointly charged with any crime, the trial court may order a separate trial for any one of the defendants when requested by such defendant or the prosecuting attorney. (See also Vernon’s Kansas C. Crim. Proc. § 22-3204; Fed. R. Crim. Proc. 14.)
Separate trials should be granted under 22-3204 when severance is necessary to avoid prejudice and ensure a fair trial to each defendant. State v. Myrick & Nelms, 228 Kan. 406, 415, 616 P.2d 1066 (1980); State v. McQueen & Hardyway, 224 Kan. 420, 423, 582 P.2d 251 (1978); United States v. Frazier, 394 F.2d 258, 260 (4th Cir.), cert. denied 393 U.S. 984 (1968). In State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255 (1975), the court declared in order for a separate trial of a joint defendant to be granted the moving defendant, or defendants, must present grounds sufficient to the trial court to establish actual prejudice if a joint trial occurred. 216 Kan. at 649. State v. Jones, 222 Kan. at 58; State v. Hensley, 219 Kan. 826, 828, 549 P.2d 874 (1976); State v. Sully, 219 Kan. 222, 224, 547 P.2d 344 (1976).
In State v. Martin, 234 Kan. 548, 673 P.2d 104 (1983), the grounds for severance were set forth as follows:
“The usual grounds for severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.” Syl. ¶ 2.
Severance under 22-3204 lies within the sound discretion of the trial court. State v. McQueen & Hardyway, 224 Kan. at 425. Reversal of the lower court’s denial of severance is justified only when a clear abuse of discretion is established. United States v. Ehrlichman, 546 F.2d 910, 929 (D.C. Cir. 1976), cert. denied 429 U.S. 1120 (1977), 39 A.L.R. Fed. 604; State v. Smith & Miller, 224 Kan. 662, 672, 585 P.2d 1006 (1978), modified 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964, reh. denied 444 U.S. 889 (1979). (See also Smith v. Atkins, 565 F. Supp. 721, 738 [D. Kan. 1983]). A party claiming abuse of discretion has the burden to establish the claim. State v. Williams, 234 Kan. 233, 238, 670 P.2d 1348 (1983); State v. Wright, 4 Kan. App. 2d 196, Syl. ¶ 5, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980). The limitations on joinder and provisions for severance are to prevent manifest injustice. When two or more defendants are charged with multiple crimes some prejudice necessarily will occur. When the evidence of participation and identity oftho.se charged is clear and convincing, prejudice from a joint trial may not be great. State v. McQueen & Hardyway, 224 Kan. at 425. However, when the evidence is clear and convincing as to one defendant, but not so as to another, failure to sever may cause prejudice which will result in manifest injustice in violation of constitutional due process. 224 Kan. at 425.
There is a material advantage in having defendants tried together for the crimes in which all have jointly participated during a short period of time. In a joint trial witnesses will have to testify but once. The saving of time and money to the state may be substantial. State v. McQueen & Hardyway, 224 Kan. at 425; United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970). However, these considerations are secondary to giving each person accused a fair trial under the Constitution. The question of prejudice to multiple defendants should be carefully considered before a severance under 22-3204 is denied. 224 Kan. at 425; State v. Sully, 219 Kan. at 224.
What are antagonistic defenses so as to mandate separate trials? A thorough review on this subject appears at Annot., Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Case, 82 A.L.R.3d 245. What emerges from the wealth of cases in this annotation is a mere allegation of antagonistic defenses, such as given here by defendants, is not enough. 82 A.L.R.3d at 256, § 4. See State v. Smith & Miller, 224 Kan. at 673. Mere apprehension antagonistic defenses may develop at trial does not warrant severance. 82 A.L.R.3d at 262, § 8. Even if antagonistic defenses are established the defendant must still show prejudice would result from a joint trial. 82 A.L.R.3d at 257, § 5. For example, in State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct. App.), cert. denied 82 N.M. 534 (1971), the New Mexico Court of Appeal declared the fact of conflicting defenses, standing alone, did not amount to a showing the trial court abused its discretion in denying severance. 82 N.M. at 544. Inconsistency of trial strategies is not sufficient to require severance. 82 A.L.R.3d at 264, § 10. Nor, necessarily, does hostility between defendants require severance without more being shown. 82 A.L.R.3d at 263, § 9. Finally, a trial court in considering a motion to sever should not confuse evidence which is antagonistic to defendants with antagonistic defenses. E.g., United States v. Frazier, 394 F.2d at 261.
Before defenses of codefendants will be declared antagonistic there must be a dichotomy, or near dichotomy, between the defenses. The classic example of intrinsically antagonistic defenses is where both defendants blame each other for the crime while attempting to defend against the State’s case. State v. Sully, 219 Kan. at 225. See also 75 Am. Jur. 2d, Trial § 21. A good example of this situation is Murray v. State, 528 P.2d 739 (Okla. Crim. 1974), where one defendant’s testimony and confession was such only the codefendant could have committed the crime while the codefendant’s testimony and confession was such only the defendant could have committed the offense. In other words, each defendant was attempting to convict the other.
In United States v. Haldeman, 559 F.2d 31, (D.C. Cir. 1976), cert. denied 431 U.S. 933 (1977), the United States Circuit Court for the District of Columbia held in order to reverse a district court denial of severance:
“[T]he accounts of co-defendants be not merely divergent from one another but indeed ‘so contradictory as to raise an appreciable danger that the jury would convict solely on the basis of the inconsistency.’ To warrant a severance, in short, the accounts of co-defendants must be ‘on a collision course.’ United States v. Bolden, 169 U.S. App. D.C. 60, 69, 514 F.2d 1301, 1310 (1975).” p. 71.
In State v. Martin, 234 Kan. 548, we said:
“The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive.” Syl. ¶ 3.
Did the district court abuse its discretion in denying the motion for separate trials herein? We believe not.
All three defendants testified they were in the Vietnamese Center at the time the two victims were killed. Cau Tran testified the two victims drew weapons and he shot them to save the life of defendant Thanh Van Pham who was standing with his back to the victims. Cau Tran had no objection to being jointly tried with Thanh Van Pham.
Defendant Ngan Van Pham admitted being at the table with the victims and the codefendants shortly before the shooting, but testified he had left the table but not the room when the killings occurred. Defendant Thanh Van Pham testified he also had been at the table with the other four on the night in question, but as he walked away he heard his name called. He then turned around, saw the victims pointing guns at him and ran from the scene.
It should be noted Ngan Van Pham’s characterization of his defense as being an “alibi” is a misnomer. He admits to being present in the room where and when the killings occurred. He, in essence, is contending he was present but not involved in the homicides. This is not an alibi defense. An alibi places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for the accused to be the guilty party. Com. v. Van Wright, 249 Pa. Super. 451, 457, 378 A.2d 382 (1977); Commonwealth v. Warrington, 230 Pa. Super. 332, 334, 326 A.2d 427 (1974); Rlack’s Law Dictionary 66 (5th ed. 1979).
Applying the previously cited grounds for and rules relative to severance of trials to the facts herein, it is abundantly clear the district court did not abuse its discretion in denying the motion for separate trials on any of the alleged grounds. The possible confusion of defendants’ names by the jury would not be lessened in separate trials and in some ways could be increased by separate trials. There is no showing of any antagonistic defenses. Further, each defendant had full opportunity to cross-examine each codefendant and there is no showing of actual prejudice resulting from the joint trial. We conclude this issue is wholly without merit.
The second issue is whether the trial court erred in overruling the objections of defendant Ngan Van Pham and Cau Tran to the court interpreter’s translations. This issue encompasses the following questions:
(a) Was it error for the trial court not to have removed the court interpreter upon defendants’ contention she was incompetent in her translations?
(b) Was it error for the trial court not to have permitted defendant Cau Tran to be examined through and testify through his personal interpreter, rather than the court’s interpreter?
(c) Was it error for the trial court not to permit defendant Ngan Van Pham to challenge the competency of the court interpreter in the presence of the jury?
As many of the witnesses, and all defendants, were Vietnam ese, the trial court determined it was necessary the proceedings be interpreted for the benefit of all concerned. Instead of one interpreter the trial court appointed an interpreter for the court and one for each defendant. The court’s interpreter was a Vietnamese woman named Ms. Van Pham (no relation to any of the parties); defendant Cau Tran’s interpreter was an American, Mr. James Klassen, who had spent approximately thirty-nine months in Vietnam ten years before. Defendant Ngan Van Pham’s interpreter was Mr. Linh Nguyen; defendant Thanh Van Pham’s was Ms. Lan Nguyen.
Immediately before trial Judge Hodge asked each defendant whether he had any objections to any of the court-appointed interpreters. Mr. Hogan, representing defendant Cau Tran, said he had no challenge. Mr. Leon and Mr. Green, representing defendants Ngan Van Pham and Thanh Van Pham respectively, asserted they were reserving their right to challenge the court’s interpreter. The trial court was not satisfied with this response and indicated if the two defendants had any objection to the court’s interpreter they were to voice them then. The competency of an interpreter should be determined prior to the time he or she discharges his or her duties. 21 C.J.S., Courts § 141b. As a result of the reluctance exhibited by Messrs. Leon and Green, the trial judge ordered Ms. Van Pham to take the stand and be examined by all the attorneys to determine her qualifications as an interpreter. First to examine Ms. Pham was Mr. Waller, prosecuting attorney. His inquiry was as follows:
“BY MR. WALLER:
“Q. Would you please state your name and age for the Court?
“A. Okay. My name is Van Pham. First name V-A-N; last name P-H-A-M. I am twenty years old.
“Q. And where was your place of birth?
“A. Okay, I was born in Vietnam.
“Q. What part of Vietnam?
“A. In Saigon in South Vietnam.
“Q. And might I ask you, are you acquainted with the Vietnamese language?
“A. Yes, I do.
“Q. What education did you receive in Vietnam?
“A. Well I was in sixth grade in Vietnam, and when I got to America I was in seven grade. And I graduated from high school. I went to college for one year, and then I was a teacher now at the Catholic Charity Church helping the refugee and at night time I go to school in Bryan Institute taking programmer.
“Q. I see. And when did you come to the United States?
“A. I was in — it was in 1975 in July.
“Q. You indicated to us you’re presently a teacher at the Catholic Social Services—
“A. Yes.
“Q. — Refugee Program.
“A. Yes.
“Q. And what do you do there, ma’am?
“A. I am a teacher. I teach English for the refugee.
“Q. And how long have you done this?
“A. For one year.
“Q. And as a teacher, are you responsible for speaking in Vietnamese with your various students?
“A. Well, actually we speak English most of the time, but if the student don’t understand, then we translate into Vietnamese.
“Q. Now you indicated you are familiar with the Vietnamese language, is that broken down into dialects?
“A. Well, I was in Vietnam for thirteen years, and so that’s the — I speak Vietnamese and some kind of that, but I’m not sure that I know all because I would be there for thirteen years. But we keep speaking English — I mean we keep speaking Vietnamese most of the time at home.
“Q. I see. Are you acquainted with any of the Vietnamese community here in the City of Wichita?
“A. Yes.
“Q. And do you associate with the Vietnamese community here in the City of Wichita?
“A. Yes.
“Q. Do you communicate with them in Vietnamese?
“A. Yes.
“Q. Have you ever had any difficulty understanding another Vietnamese person?
“A. No, un-huh.”
Mr. Green, for defendant Thanh Van Pham, asked Ms. Van Pham about the high school from which she graduated (Wichita Heights), the college she attended for a year (Kansas State University), and the courses she took there (business). Mr. Leon, for defendant Ngan Van Pham, asked Ms. Pham about the various dialects in the Vietnamese language and whether she could understand Vietnamese spoken by a person who came from North rather than South Vietnam. Ms. Pham said she could do so because her parents had come from the north. The court asked each defendant to identify in which part of Vietnam they had lived. Each defendant said they were from the south, the same as Ms. Pham. Ms. Van Pham, being aware of where all defendants came from in Vietnam, informed the court she would have no trouble interpreting. Mr. Hogan, attorney for defendant Cau Tran, did not ask Ms. Van Pham any questions.
In reliance upon, and in conformity with, K.S.A. 75-4353, Judge Hodge foünd Ms. Van Pham, as the court’s interpreter, was not interested in the outcome of the trial, was able readily to communicate with a person whose primary language was one other than English, and was able accurately to translate and repeat statements of persons from Vietnamese into English and English into Vietnamese. Judge Hodge then advised how allegations of misinterpretation were to be handled at trial.
“I am going to issue an order that in the event any of your interpreters disagree either among yourselves or disagree with what the Court’s interpreter interprets the testimony of any Vietnamese witness, then no counsel is to stand up and relate that fact to the jury. What I want to happen is the attorney can make objection — we’ll stop the proceeding — to approach the bar and advise me in a voice that cannot be overheard by the jury that we have a dispute over what is said by one of the witnesses. At that time I will excuse the jury to go back to the jury room and we will get to the bottom of it.
“If there is an error in any translation, I’m also going to tape record the testimony given by the Vietnamese. That testimony will not be preserved, please understand, on the tape recording. It will merely be preserved for short durations ata time being the time limit on each side of the tape cassettes. The reason for that being that if there is a disagreement on what a Vietnamese witness testified to, including the defendants, then I would have the actual recording of what was said so that it could be played back. Obviously my Court Reporter can’t take down Vietnamese or at least I don’t think she’s that talented; she’s quite talented, but I don’t think she’s reached that stage yet. And in this way it would preserve that testimony so that should a conflict arise as to the proper translation it could be played back until we could arrive at what the proper translation was.”
No attorney objected to this procedure of challenges to the accuracy of translations being outside the hearing of the jury. After the trial judge announced this procedure he accepted recommendations from Mr. Hogan, attorney for defendant Cau Tran, that Ms. Van Pham translate in the first person (the usual procedure according to 98 C.J.S., Witnesses § 326), and that if during trial the interpreter did not understand a question or answer, or the attorneys and witnesses spoke too fast, she should inform the court so a correct translation could be assured. Finally, Mr. Leon, for defendant Ngan Van Pham, elicited from Ms. Van Pham she was acquainted with the court system of the defunct Republic of Vietnam and the court system of the United States, and she could explain the differences if a situation arose at trial.
K.S.A. 60-243(e), promulgated by order of the Kansas Supreme Court in 1969, permits a court to appoint an interpreter of its own selection (see 1 Gard’s Kansas C. Civ. Proc., 2d Annot. § 60-243[e] [1979], comments, p. 259; Vernon’s Kansas C. Civ. Proc. § 60-243[e] [1983 Supp.]). K.S.A. 60-417 provides an interpreter is subject to all the provisions of the Kansas Code of Civil Procedure relating to witnesses, 60-417 through -422. In other words, a person may not be an interpreter if he or she is incapable of expressing themselves, 60-417(a), or is incapable of understanding the duty to tell the truth, 60-417(h), i.e., to interpret correctly. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-417 (1979), comments, p. 102. Like any witness, an interpreter must take an oath or affirmation before testifying, 60-418 (see also K.S.A. 75-4354), and as a prerequisite to testifying demonstrate his or her experience, training, or education. K.S.A. 60-419. While such evidence may not be in the form of an ex parte affidavit from the interpreter, Railway Co. v. Bagley, 60 Kan. 424, 435, 56 Pac. 759 (1899), it may be testimony from the interpreter, 60-419, subject to cross-examination. 60 Kan. at 435. The credibility of the interpreter may not be brought into question by a conviction unless the crime involved dishonesty or false statement. K.S.A. 60-421. Similarly, evidence of character traits of an interpreter, other than honesty or veracity or their opposites, are inadmissible. K.S.A. 60-422(c).
K.S.A. 75-4351 et seq., is an act providing for the appointment of qualified interpreters for persons whose primary language is one other than English, or who are deaf or mute or both, in certain court proceedings and proceedings before certain boards, commissions and agencies of the state and political subdivisions. L. 1973, ch. 364. K.S.A. 75-4351 directs a qualified interpreter shall be appointed for a person whose primary language is one other than English in any court proceeding involving such person where such proceeding may result in the confinement of such person or the imposition of a penal sanction against such person. K.S.A. 75-4351(h). K.S.A. 1982 Supp. 75-4352 specifies all interpreters shall be appointed by the judge. See also 60-243(e). In delineating who is and is not competent to be an interpreter, 75-4353(a) declares no one shall be appointed to serve as an interpreter for a person if he or she is married to that person, related to that person within the first or second degrees of consanguinity, living with that person or is otherwise interested in the outcome of the proceeding. A trial judge may appoint an interpreter who is married to, related to, or living with the person, or even if the interpreter has an interest in the outcome of the proceeding, if the court determines there is no other qualified interpreter available. K.S.A. 75-4353(a)..E.g., Lujan v. United States, 209 F.2d 190, 192 (10th Cir. 1953). See also State v. Rangel, 169 Kan. 194, 197, 217 P.2d 1063 (1950), where the trial court used an interpreter who had been emL ployed by the State during the investigation of the case; and People v. Murphy, 276 Ill. 304, 320, 114 N.E. 609 (1916), where it was held the fact the interpreter was a city police officer did not disqualify him.
To qualify an interpreter the trial court must make a preliminary determination the interpreter is able readily to communicate with the person whose primary language is one other than English and is able accurately to repeat and translate the statement of said person. 75-4353(h); see also 60-419. In other words, the trial court must be satisfied the interpreter will be a ready and accurate medium between the court and the witness. Finally, 75-4354 requires any interpreter appointed by the court to take an oath he or she will make a true interpretation in an understandable manner to the person for whom he or she is appointed,and he or she will repeat the statements of such person in the English language to the best of his or her skill and judgment. See also 60-418.
The importance of an interpreter to judicial proceedings has long been recognized in American jurisprudence. In Schnier v. People, 23 Ill. 17 (1859), the Illinois Supreme Court observed:
“When the facts, conversations or admissions, admissible in evidence, are known to a person who does not understand and speak the language in which the trial is conducted, then the only means by which the jury or court trying the issue can arrive at the facts, is from the evidence through an interpreter who understands and speaks both languages. And when he is so employed, it is his duty to translate the evidence given by the witness into equivalent terms of the language employed by the tribunal trying the cause. All persons are aware of the fact, that the power to make a literal translation from one language to another, so as to preserve in the translation the precise meaning of the original, depends upon an accurate knowledge of both languages by the translator. 23 Ill. at 27.
See Annot., Admissibility of Testimony Concerning Extrajudi cial Statements Made to, or in Presence of, Witness Through an Interpreter, 12 A.L.R. 4th 1016; Annot., Disqualification, for Bias, of One Offered as Interpreter of Testimony, 6 A.L.R. 4th 158; Annot., Right of Accused to Have Evidence or Court Proceedings Interpreted, 36 A.L.R.3d 276; Annot., Use of Interpreter in Court Proceedings, 172 A.L.R. 923; Annot., Right of Accused to Have Evidence Interpreted to Him, 140 A.L.R. 766.
The determination and propriety of appointing a person as an interpreter lies within the discretion of the trial court. K.S.A. 60-243(e); 2 Wright, Federal Practice and Procedure: Crim. 2d § 456 (1982); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2417 (1971); 75 Am. Jur. 2d, Trial § 58, p. 170; 21 C.J.S., Courts § 141b; Lujan v. United States, 209 F.2d at 192; Casciato v. Rennick, 380 P.2d 122, 123 (Wyo. 1963). As trial courts are accorded wide discretion in determining the fitness of a person called to serve as an interpreter, Lujan v. United States, 209 F.2d at 192, such a determination will be reversed on appeal only in the most extreme circumstances. 2 Wright, Federal Practice and Procedure: Crim. 2d § 456. See also 21 C.J.S., Courts § 141b.
While a person who is engaged in discharging the duties of an interpreter is a witness, 98 C.J.S., Witnesses § 326; K.S.A. 60-417; People v. De Larco, 142 Cal. App. 3d 294, 306, 190 Cal. Rptr. 757 (1983), and may even be regarded as acting in the capacity of an expert, Railway Co. v. Bagley, 60 Kan. at 435, he or she is more than a mere witness. Though in a sense he or she is an officer of the court, an interpreter is best described not as a court officer but merely an attendant. 21 C.J.S., Courts § 141a.
It is not error for a court to appoint more than one interpreter. Skaggs v. State, 108 Ind. 53, 57, 8 N.E. 695 (1886). In State v. Rangel, 169 Kan. 194, the trial court, as in the instant action, authorized multiple interpreters; one for the court and one for the defendant. 169 Kan. at 197. Similar occurrences may be observed in People v. Mendes, 35 Cal. 2d 537, 543, 219 P.2d 1 (1950); State v. Masato Karumai, 101 Utah 592, 596-99, 126 P.2d 1047 (1942); and Lujan v. United States, 209 F.2d at 192. A common test on appellate review of whether a trial court erred in declining to appoint an interpreter is whether or not such failure hampered the defendant in any manner in presenting his case fairly to the jury. Viliborghi v. State of Arizona, 45 Ariz. 275, 283, 42 P.2d 210 (1935). See also Beall v. Spear, 106 Kan. 690, 692-93, 189 Pac. 938 (1920).
There is a rebuttable presumption an interpreter in the performance of his official duty has acted regularly. People v. De Larco, 142 Cal. App. 3d at 307. Merely because an interpreter has had some problems in translating is not sufficient to rebut this presumption. 142 Cal. App. 3d at 307. Courts have recognized, as is all too evident from this case, that words in one language may not have an exact companion in another language and it is therefore impossible in certain circumstances for an interpreter to convey the precise language of the witness to the court. In Seniuta v. Seniuta, 31 Ill0. App. 3d 408, 334 N.E.2d 261 (1975), the Illinois Court of Appeals declared an interpreter’s account of the answers of a witness need not be literal as long as the answers of the interpreter and the witness amounted to the same thing. 31 Ill. App. 3d at 417. Indeed, there are situations in which the interpreter may testify to the sense in which he or she understood the witness. 31 Ill. App. 3d at 417. See also United States v. Guerra, 334 F.2d 138, 142-43 (2d Cir.), cert. denied 379 U.S. 936 (1964). The California Supreme Court in People v. Jackson, 53 Cal. 2d 89, 346 P.2d 389 (1959), found no error where an interpreter employed an irregular technique in answering in the third person, and in some instances editing, explaining or interpolating the questions and answers. 53 Cal. 2d at 95. No substantial deviation was observed between the interpreter’s answers and other testimony in the case. 53 Cal. 2d at 95. In People v. Murphy, 276 Ill. 304, two defendants were charged with murder. At trial a Greek witness testified. Through an interpreter the witness was asked who had held the gun at the killing. The witness answered “Megalos” which, in Greek, meant the big man. The interpreter reported the answer to mean defendant Murphy. In like manner the witness when asked about the other party to the killing said “Mikros” — the little man; which the interpreter represented to the court meant defendant Armstrong. In rejecting defendant Murphy’s appeal on the translation, the Illinois Supreme Court held while the interpretations were not literal, the answers of the interpreter and the witness amounted to one and the same thing and the evidence clearly showed defendant was the big man (Megalos), while defendant Armstrong was the little man (Mikros). 276 Ill. at 320-21.
K.S.A. 75-4354 does not impose an absolute requirement on an interpreter to give a literal translation. Rather, the interpreter’s translation must be to the best of his skill and judgment.
While a party may challenge the competency of an interpreter, only the trial judge may remove an interpreter. 2 Wright, Federal Practice and Procedure: Crim. 2d § 456, p. 634. In other words, the competency of an interpreter is for the trial court to determine, People v. Mendes, 35 Cal. 2d at 543. Further, it is for the court to determine whether a challenge to an interpreter’s competency at trial has been justified. People v. De Larco, 142 Cal. App. 3d at 306.
Defendants Ngan Van Pham and Cau Tran objected to a number of the court interpreter’s translations. In each instance the trial court followed the procedure it had previously outlined for the handling of such objections (the same being set forth earlier in this opinion). We have carefully reviewed the record and find no abuse of discretion relative to the trial court’s handling of these objections or in failing to remove the court interpreter for alleged incompetence.
Cau Tran requested the interpreter appointed for him personally be permitted to serve as the court interpreter during his own testimony. The trial court refused the request and said defendant contends this was error. Rasically Cau Tran claims his interpreter, being American born, was more conversant in English than was the court interpreter. In denying the request the court noted it already had a qualified interpreter and Cau Tran had not objected to her appointment. (As will be recalled, Cau Tran’s attorney did not ask the court interpreter any questions on her qualifications after having been afforded an opportunity to do so.) The court also expressed the belief that for Cau Tran’s interpreter to serve in dual capacities at the same time would be “approaching conflict of interest in the greatest degree.” See Annot., 6 A.L.R. 4th 158. The court further noted:
“THE COURT: Mr. Hogan [Cau Tran’s attorney], when you have been discussing the case with your client, he has made a bona fide interpretation for an attorney of confidential nature. And for him to now be appointed the Court’s interpreter would be twofold. First, it would take him away from the defendant. I cannot appoint him as a court interpreter and then allow him to go back to the defendant. It would then throw discredit upon the present Court’s interpreter because the jury would see immediately that she was not there and that all of a sudden the defendant’s interpreter was there which would put greater reliance upon the defendant’s interpreter. It’s an irreconcilable conflict that the objection of the State must be sustained.”
We find no abuse of discretion in the trial court’s refusal to permit Cau Tran’s interpreter to serve as the court interpreter during Cau Tran’s own testimony.
We turn to the question of whether the trial court erred in refusing to permit defendant Ngan Van Pham to challenge, in the presence of the jury, the competency of the court interpreter.
Prior to commencement of the trial the court announced the procedure for handling objections to the court interpreter’s translation of the testimony. This procedure is set forth earlier in the opinion and will not be repeated. Basically it involved handling all such objections outside the presence of the jury. None of the defendants objected to this procedure when it was announced and cannot now be heard to complain. However, if a proper objection had been timely made, we see no error or abuse of discretion in the procedure utilized. To have the jury hear various interpretations involving fine shadings of meanings of the same word or phrase and then have the court, as it did here, accept the official interpretation could certainly confuse a jury.
We find all questions raised within this issue to be without merit. Additionally, we believe the trial court is to be complimented on its handling of the difficult interpreter situation in this case.
The third issue is whether, as to defendant Thanh Van Pham, the trial court erred in instructing on “aiding and abetting.”
Instruction No. 33 was as follows:
“You are instructed that under the law of the State of Kansas anyone who intentionally counsels, aids, abets or assists another or others in the commission of any crime(s), either by conspiring, counseling, advising, or assisting in any matter in the preparation or completion, is equally guilty with the one(s) actually committing the crime(s) without regard to the extent of their participation.
“You are, therefore, instructed in this case that if you find beyond a reasonable doubt that any defendant(s) intentionally conspired, counseled, aided, abetted, advised or in any manner assisted others in the preparation or commission of the crime(s) charged in the information as elsewhere defined in these instructions, then that defendant(s) individually is guilty of such crime(s) as though he, by himself, without assistance, committed that crime(s).”
In State v. Payton, 229 Kan. 106, Syl. ¶ 2, 622 P.2d 651 (1981), this court recognized any person who counseled, aided or abetted in the commission of any offense could be charged, tried, convicted and punished in the same manner as if he or she were a principal. A few years before, in State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 (1974), the court pbserved “[t]o be guilty of aiding and abetting in the commission of a crime the defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed.” State v. Turner, 193 Kan. 189, 392 P.2d 863 (1964), announced all participants in a crime were equally guilty, regardless of the extent of their participation. 193 Kan. at 196. Consequently, if in the execution of a common purpose, one of the participants did the killing, the others would be guilty of murder as well. 193 Kan. at 196. Liability for crimes of another is set forth in K.S.A. 21-3205.
The challenge to the instruction herein is not that it inaccurately states the law, but rather it should not have been given as to this defendant.
Thanh Van Pham objected to the aiding and abetting instruction. On appeal Thánh Van Pham argues there was no evidence in the case he aided, abetted, or assisted in the shooting of the victims. The essence of defendant’s argument is if he had any culpability in the murders it was as a principal, not as an aider and abettor and, according to defendant, the jury did not convict him as a principal but rather as an aider and abettor. In support of this contention, defendant Thanh Van Pham relies upon a question sent by the jury to the court during deliberations in which the jury asked if a person had any involvement at all in a crime would he have to be charged with the same degree of offense as the person who the evidence showed to be guilty of the crime. Defendant Thanh Van Pham asserts this inquiry related to him and revealed confusion on the part of the jury. The jury question form does not indicate which defendant it had in mind.
The State adequately summarizes the evidence relative to this issue in its brief as follows:
“The defendant’s complaint is that [Instruction 33] may have permitted him to be convicted as an aider and abettor; the defendant alleges that if he is guilty at all, he can only be guilty as a principal. The Appellee notes that the defendant’s premise that he can only be a principal as to both murders is erroneous.
“True enough, the defendant’s conviction must rest in part upon his identification as one of the three men who shot handguns at these two victims. However, the use of the firearm does not necessarily make him a principal in the death of both victims. Three handguns were positively identified as having been used in the shooting: a .22 caliber revolver and two .38 caliber revolvers. The co-defendant Cau admitted that he had used only the .22 caliber revolver .... As neither Ngan nor Thanh admitted the use of the .38 caliber weapons, we must look to circumstantial evidence to see which weapon Thanh had used. Thanh’s fingerprints [were] identified on the Smith & Wesson .38 revolver and on no other weapon .... In viewing the evidence in a light most favorable to the State, we might then find Thanh used the Smith & Wesson .38 caliber revolver. The bullet removed from Phong was identified as having come from that weapon by a firearms identification expert, and only one of the four bullets removed from Den’s body (not necessarily the bullet causing the death) was identified as having come from the same weapon .... Therefore, Thanh would be a principal in the death of Phong because the sole fatal wound came from the .38 revolver connected to Thanh by fingerprint comparisons; however, Thanh would be an aider or abettor to the co-defendant principal who fired the fatal bullet into Den. Although the pathologist was able to distinguish wounds which were capable of producing death independently, he failed to identify any bullet or bullets as the one bullet or combination of bullets that actually caused the death of Den. Furthermore, as all three defendants admitted handling the weapons at Ngan’s girlfriend’s house where they hid the weapons, the jury could have chosen to believe that Thanh put his fingerprint on the .38 Smith & Wesson at that time, and that he had actually fired the other .38 caliber weapon. None of the bullets removed from either body were positively identified as having come from this second .38 caliber revolver, although bullets found at the crime scene could be positively matched to such weapon. If the jury chose to believe Thanh used this .38 Arminius revolver, he would be an aider or abettor as to both homicides, although a principal as to any shooting of the firearm. But Thanh was not charged with merely shooting at these victims; he was charged for his participation in the murder of these victims.”
Additionally, the State’s evidence showed there was a history of hostility between the three defendants and the two victims. Immediately prior to going to the Vietnamese Center on the night of the murders, the three defendants had a meeting relative to resolving their problems with the victims. The jury could easily have surmised the three defendants were acting in concert according to a jointly agreed-upon plan when they shot the victims.
We conclude the trial court did not err in giving the aiding and abetting instruction.
The final issue is whether, as to defendants Thanh Van Pham and Cau Tran there is sufficient evidence to sustain their first-degree murder convictions.
In a criminal action where defendants contend the evidence at trial was insufficient to support their convictions, the standard of appellate review is: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court a rational factfinder could have found defendants guilty beyond a reasonable doubt? State v. Royal, 234 Kan. 218, 225, 670 P.2d 1337 (1983); State v. Walter, 234 Kan. 78, 82, 670 P.2d 1354 (1983); State v. Williams, 234 Kan. 233, 239, 670 P.2d 1348 (1983); State v. Coberly, 233 Kan. 100, 103, 661 P.2d 383 (1983); State v. Rodriquez, 8 Kan. App. 2d 353, 357, 657 P.2d 79, rev. denied 233 Kan. 1093 (1983); State v. Hutton, 232 Kan. 545, 549-50, 657 P.2d 567 (1983); State v. Myrick & Nelms, 228 Kan. 406, 421, 616 P.2d 1066 (1980); State v. Acheson, 3 Kan. App. 2d 705, 710, 601 P.2d 375, rev. denied 227 Kan. 927 (1979); State v. McGhee, 226 Kan. 698, 700-01, 602 P.2d 1339 (1979); State v. Voiles, 226 Kan. 469, 472-73, 601 P.2d 1121 (1979); Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L.Ed.2d 560, 99 S.Ct. 2781, reh. denied 444 U.S. 890 (1979). Moreover, appellate courts look only to the evidence in favor of the verdict, they do not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence, the conviction stands. State v. Smolin, 221 Kan. 149, Syl. ¶ 6, 557 P.2d 1241 (1976); State v. Acheson, 3 Kan. App. 2d at 710; State v. Douglas, 230 Kan. 744, Syl. ¶ 3, 640 P.2d 1259 (1982); State v. Rodriquez, 8 Kan. App. 2d at 357. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Ward, 233 Kan. 144, 145, 660 P.2d 957 (1983).
The evidence of defendants’ guilt in this case, judged by any standard, is overwhelming. No attempt will be made to list all the evidence supporting the convictions, but the following summary touches on some of the highlights. Defendants and the victims were members of rival factions in the Vietnamese community in Wichita. Threats had been exchanged between the defendants and the victims in the 48 hours before the killings. A few hours before the homicides, the three defendants met and conferred. The defendants stated the purpose of the meeting was to plan how to settle amicably their differences with the victims. From the totality of the circumstances, the jury could have reasonably inferred that defendants actually planned a final solution to the hostilities. Shortly after the meeting, the three defendants went to the Vietnamese Center together. After looking around the area briefly, the defendants joined the victims who were seated at a table. After a few moments of visiting, the eyewitnesses testified all three defendants arose from their chairs, pulled guns, and fired 15 to 17 bullets into the victims in what amounted to an execution. The defendants quickly left the building by separate exits and left the scene in one automobile. Defendants then went to the girl friend’s residence where they hid the three guns used in the killings. The pathologist corroborated the fact the victims were seated when shot — further weakening the already extremely thin claim by defendants Cau Tran and Thanh Van Pham that the victims were standing up with guns drawn when the killings occurred. Ballistic tests further corroborated the State’s case.
We find this issue to be utterly without merit.
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the defendant, Unified School District No. 259, from an order of the District Court of Sedgwick County, Kansas, in favor of the plaintiff, National Education Association - Wichita. The district court enjoined defendant from unilaterally implementing a schedule change by eliminating a “coordination” work period and replacing that period with an additional period of classroom instruction.
The National Education Association - Wichita (NEA-Wichita) is the exclusive bargaining representative for all teachers in U.S.D. No. 259. Unified School District No. 259, Wichita, Kansas (the Board) is the owner of the Roosevelt Junior High School facility. Between February and October of 1981, NEA-Wichita and the Board participated in negotiations concerning the terms and conditions of professional service. During the negotiation process and the school year preceding negotiations, six of the Board’s fifteen junior high schools operated on a six-period day, while the other nine operated on a seven-period day. The length of the school day was from 8:00 a.m. until 3:00 p.m. at all fifteen of the junior high schools. The negotiated contract had an effective date of August 1, 1981, and extended through July 31, 1983.
The schedule at Roosevelt Junior High School consisted of six periods for the 1978-79 school year. The teachers at Roosevelt each taught five classes and each teacher had a planning period in which to prepare for classes. The class schedule for Roosevelt was unilaterally changed for the 1979-80 school year by the school’s administration. Without altering the school hours, the number of periods was increased from six to seven with the length of each period being shortened.
A new team teaching concept was instituted by the school’s administration for the 1979-80 school year at Roosevelt and implemented by the creation of the seventh period. The concept was designed to improve communication between students and teachers, and between parents of the students and teachers. Under the new program, teachers were formed into multiteacher teams for each grade. A team leader was appointed for each team and was required to plan activities for the team. The only member of the team that received extra pay for the seventh hour was the team leader. The seventh period of the day was used by the team to meet and discuss progress of students taught by the team, or a teacher could meet with a student, or teachers could meet in a group to discuss a student or students, or a teacher could meet with a parent of a student. Teachers taught for five periods, had one planning period, and met with the team or carried out team activities for one period. During these periods reserved for the team, students would be assigned to elective courses, such as music or art. The unilateral implementation of the team teaching process by the school’s administration was enthusiastically accepted by the teachers of Roosevelt.
The seven-period team teaching concept was in effect at Roosevelt when the August 1, 1981, agreement took effect. In February, 1982, the Board issued to Roosevelt Junior High’s principal a bulletin requiring the seventh period no longer be used for team teaching; instead the extra hour would be used by the teachers to teach the regular subjects. The Board directed this change to facilitate the scheduling of remedial reading classes pursuant to a curriculum recommendation made by a community task force previously appointed by the Board. The principal of Roosevelt, James E. Haught, abandoned the team teaching approach. The team period was converted to a teaching period, to enable remedial reading to be added to the schedule. The principal impact of this change upon the teachers at Roosevelt was that it required them to prepare and to teach one additional class each day, although each teacher would teach only a few additional minutes a day. NEA-Wichita claims that the Board was attempting to unilaterally change, without negotiation, the teachers’ “hours and amount of work,” a mandatorily negotiable topic set forth in K.S.A. 72-5413(1), and seeks to enjoin the Board from changing the seventh period to an additional teaching period.
On March 30, 1983, the district court granted NEA-Wichita’s motion to permanently enjoin the Board from unilaterally changing a term and condition of the teachers’ employment without first negotiating the topic with NEA-Wichita. The district court, relying on Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), and Dodge City Nat’l Education Ass'n v. U.S.D. No. 443, 6 Kan. App. 2d 810, 635 P.2d 1263, rev. denied 230 Kan. 817 (1981), found that the number of class periods per day is a topic that is, by statute, mandatorily negotiable. Additionally, the district court found that the number of class periods to be taught in the normal school day by a classroom teacher in U.S.D. No. 259 during the years 1981, 1982 and 1983 was not a subject of negotiation leading to the agreement now in force' covering those years. The Board appealed from the March 30, 1983, decision of the district court. This case was transferred from the Court of Appeals to the Supreme Court.
The standard of review by an appellate court is well established. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal 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. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976); Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982).
The Board contends that the trial court erred in finding that it failed to negotiate with NEA-Wichita any increase in the number of class periods to be taught by a teacher. The contention that negotiations on this topic did occur is based largely on the fact that the 1981-83 contract and Art. V, Sec. D, Para. 7 deleted all reference to the word “hours” and substituted “periods” pursuant to a proposal made by the Board. This language change occurred in a paragraph that dealt solely with the activities and hours of a departmental coordinator, a teacher appointed to coordinate the activities of a subject matter area having three or more teachers.
The 1980-81 contact in pertinent part stated in Art. V, Sec. D, Para. 7:
“(a) Junior High and Senior High Department Coordinators with 9-17 teachers in the department shall be assigned one (1) coordination work hour per day.
“(b) Junior High and Senior High Department Coordinators with 18 or more teachers in the department shall be assigned two (2) coordination work hours per day.
“(c) In each case cited in this paragraph, the coordination work hour(s) is in lieu of a teaching work hour(s); and the number of teaching hours plus the number of coordination work hours shall equal no more than five (5) hours per day.
“(d) The coordination work hour(s) is for the purpose of coordinating the activities of the department.
“(e) With approval of the building principal, a department coordinator may be provided with a substitute teacher to release the department coordinator from teaching responsibility in order that the department coordinator may fulfill responsibilities not possible to accomplish during coordination work hours.”
The 1981-83 contract contained this identical language regarding coordination work periods, except the word “periods” was substituted for the word “hours,” and (c) was changed to state:
“In each case cited in this paragraph, the coordination work period(s) is in lieu of a teaching work period(s).”
The trial court found that the change in wording was intended by the parties to more accurately reflect the actual time spent by departmental coordinators in schools already on a seven-period day where the coordination work period was less than 60 minutes. The paragraph heading itself evidences the fact that the change in the wording applied only to teachers who were departmental coordinators and not to all teachers. The trial court found that the change was not intended by the parties to affect anyone other than the departmental coordinators. Findings by the trial court indicate that the change in wording was solely an attempt at semantic clarification concerning departmental coordinators and not the result of full negotiations concerning the number of class periods to be taught by all classified personnel.
There is sufficient evidence to support the trial court’s finding that the topic of the number of class periods to be taught per day was not negotiated.
The Board urges a contractual distinction between Dodge City Nat'l Education Ass’n v. U.S.D. No. 443, 6 Kan. App. 2d 810, and this case. The Board contends that the contract at issue in Dodge City contained neither a “management rights clause” nor a “closure clause,” unlike NEA-Wichita and the Board’s 1981-83 contract which included both such clauses. The management rights clause language appeared in the 1980-81 contract between NEA-Wichita and the Board but was not titled as such until the 1981-83 contract. This clause, as included in the 1981-83 contract, states:
“SECTION B: MANAGEMENT RIGHTS
“Paragraph 1: The Association acknowledges that the Board and the Superintendent have certain exclusive statutory rights and responsibilities which they may not surrender and that except as expressly provided otherwise by this agreement or by law, the final adoption of school policy, the administration and operation of the schools, and the direction of the employees are vested exclusively in the Board and the administrative staff. Nothing herein shall be construed to limit the statutory power and duty of the Board to make, amend, or execute decisions and policies that are necessary to operate and maintain the teaching program and schools and to otherwise carry out its lawful rights and responsibilities. Neither shall anything in this agreement be construed to limit the statutory power and duty of the Superintendent.”
The language of the closure clause had not appeared in previous contracts between the parties. This new clause, as included in the 1981-83 contract, states:
“SECTION E: CLOSURE CLAUSE
“Paragraph 1: Both the Board and the Association acknowledge that all mandatory subjects of negotiations have been negotiated and neither party has any right to negotiate further on these or any other subjects during the term of this agreement except by mutual consent.
“Paragraph 2: This agreement may be amended at any time by mutual consent. However, no amendment to this agreement shall be binding unless executed in writing and ratified by both the Board and the Association.”
The Board contends that its inclusion in the 1981-83 contract of the management rights and closure clause justifies its unilateral change in the number of class periods per day and distinguishes this case from Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, and Dodge City, 6 Kan. App. 2d 810.
School districts in Kansas have only the power and authority that has been delegated to them:
“A school district is an arm of the state existing only as a creature of the legislature to operate as a political subdivision of the state. A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication.” Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, Syl. ¶ 3, 627 P.2d 335 (1981).
The inclusion of the management rights clause in the 1981-83 contract cannot enlarge the authority or power granted to the Board by the legislature. The language of the clause expressly recognizes that the Board and superintendent possess “statutory rights and responsibilities,” and “statutory power and duty,” which shall not be surrendered or limited except as expressly provided otherwise by this agreement or by law. The essential function of this clause is to preserve in the Board the authority which has been granted to it by statute.
The general grant of statutory power to its school board is found in K.S.A. 1982 Supp. 72-8205(c), which states:
“The board shall have authority to prescribe courses of study for each year of the school program and provide rules and regulations for teaching in the school district and general government thereof, and to approve and adopt suitable textbooks and study material for use therein subject to the plans, methods, rules and regulations formulated and recommended by the state board of education.”
The general authority is limited by K.S.A. 72-5413(1), which provides that certain topics shall be mandatorily negotiable. Among these topics is “hours and amounts of work,” an item interpreted to include the number of class periods per day. In light of this statutory limitation of the Board’s general power, the existence in the 1981-83 contract of the management rights clause does not sufficiently distinguish this case from Dodge City.
The Board also contends that there is a contractual distinction in its claim that the closure clause functions as a type of waiver which precludes NEA-Wichita from complaining and/or litigating each time a principal makes a decision impacting upon a “term and condition of professional service.” Additionally, the Board contends that the closure clause allows it to act unilaterally on any item not included in the agreement. In certain cases, narrowly drafted closure clauses exercised in good faith have been found to constitute a waiver of a union’s right to require an employer to respond to a bargaining demand. See, e.g., GTE Automatic Electric Incorporated, 261 N.L.R.B. 1491, 110 L.R.R.M. (BNA) 1193 (1982). By permitting the employer to invoke the closure clause as a shield against the union in the mid-term demand for bargaining about a new subject matter not specifically covered by the terms of the agreement, the court promotes contract stability and fosters industrial peace. However, the Board has not cited to this court cases which support its contention that a closure clause, coupled with a management rights clause, grants the Board a right to unilaterally change conditions of employment not included in the agreement.
A closure clause is nothing but a diluted form of waiver. The general rule is that a waiver of a union’s right to bargain must be clear and unmistakable. N.L.R.B. v. R. L. Sweet Lumber Company, 515 F.2d 785, 795 (10th Cir. 1975). The trial court found that NEA-Wichita had not waived any of its rights to bargain.
The management rights clause and the closure clause, when viewed separately or read together, fail to justify the Board’s unilateral change in the number of class periods per day in Roosevelt Junior High. The existence in the 1981-83 contract of these two clauses does not provide a sufficient basis for distinguishing the case from Chee-Craw and Dodge City.
The Board contends that the trial court erred in its reliance upon Chee-Craw and Dodge City, which established that the number of class periods per day is a mandatorily negotiable topic.
Chee-Craw involved a dispute between a teachers association and U.S.D. No. 247 arising from their professional negotiations. In that case, this court defined the scope of mandatorily negotiable topics, and listed nineteen different topics which it declared to be mandatorily or nonmandatorily negotiable. One of the included topics was:
“12. WORKDAY (length of day, arrival and departure time, number of teaching periods, duty-free lunch period, and no custodial work) — Negotiable.” 225 Kan. at 570.
Chee-Craw established that the number of teaching periods per day is mandatorily negotiable under K.S.A. 72-5413(1), since it is included in the statutory term hours and amount of work.
The Court of Appeals in Dodge City, 6 Kan. App. 2d 810, Syl., held:
“After a negotiated agreement has been reached between the exclusive representative of professional employees and a board of education pursuant to K.S.A. 72-5413 et seq., then during the time that agreement is in force, the board, acting unilaterally, may not make changes in items which are ‘mandatorily negotiable,’ but which were not noticed for negotiation by either party and which were neither discussed during negotiations nor included within the resulting agreement.”
In Dodge City, Justice Miller, sitting with the Court of Appeals, agreed with the trial court’s finding and stated:
“[S]ince the number of teaching periods is a mandatorily negotiable item, the Board has no authority to unilaterally change the number of teaching periods without first submitting the proposed change to negotiations pursuant to K.S.A. 72-5423.” 6 Kan. App. 2d at 811.
The Professional Negotiations Act, K.S.A. 72-5413 et seq., was adopted in 1970. Among the topics included in the category “[t]erms and conditions of professional service” is “hours and amounts of work . . . regardless of its impact on the employee or on the operation of the educational system.” K.S.A. 72-5413(1). The appellate courts of Kansas have held that if a topic is by statute made a part of terms and conditions of professional service, then a topic is by statute made mandatorily negotiable. Tri-County Educators’ Ass’n v. Tri-County Special Ed., 225 Kan. 781, 594 P.2d 207 (1979); NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 592 P.2d 93 (1979). The term “hours and amount of work” has been interpreted to include the following:
1. The number of in-service days required in excess of 180. NEA-Parsons v. U.S.D. No. 503, 225 Kan. 581, 593 P.2d 414 (1979);
2. One half-day at the end of each grade period for grade card preparation and planning. NEA-Kansas City v. U.S.D. No. 500, 227 Kan. 541, 608 P.2d 415 (1980);
3. Seven and one-half hour teacher workday with a 30-minute daily preparation time without assigned duties. NEA-Kansas City;
4. The number of required, without pay, after-hours faculty meetings. NEA-Kansas City;
5. Workday (length of day, arrival and departure time, number of teaching periods, duty-free lunch period, and no custodial work). Chee-Craw; and
6. The number of teaching periods per day. Dodge City. These items were held to be mandatorily negotiable. Conversely, the term “hours and amount of work” has been held not to include class size, which is therefore not a mandatorily negotiable item. NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. at 452. Since the number of class periods per day is a mandatorily negotiable topic as Chee-Craw and Dodge City indicate, the Board may not act unilaterally on that topic, but must enter into professional negotiation with the plaintiff before taking action.
The Board claims that the Chee-Craw decision is inapplicable to this fact situation because the teachers in U.S.D. No. 259 performed their activities on the basis of “duties” and not upon the basis of “hours.” The Board urges a distinction between “one who performs only duties and one who performs duties only during certain hours.” Chee-Craw was silent as to what the past practice in the school district had been concerning whether teachers performed their services on the basis of hours or duties. Chee-Craw determined the question of negotiability by using a definitional approach that looks beyond the particular phraseol ogy of a proposal to the topic to which the label has been applied. The Board’s contention that the teachers in U.S.D. No. 259 performed their activities on the basis of duties instead of hours fails to demonstrate the inapplicability of the Chee-Craw holding to this case.
The Board believes that a school board’s statutory duty to negotiate changes arises only when the Board desires to change its established practice in a mandatorily negotiable area. The holding in Dodge City precludes the Board from unilaterally making changes in any item which is mandatorily negotiable, without reference to whether or not an “established practice” exists in a mandatorily negotiable area.
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The opinion of the court was delivered by
Herd, J.:
This is a civil action by Ira S. Price, Sr. against William G. Grimes for breach of contract, fraud and misrepresentation. The jury returned a verdict for Price in the amount of $85,000 compensatory damages and $50,000 punitive damages. Grimes appeals.
As a preliminary matter the procedural facts of this case need to be related. This action was filed November 13, 1980, by Ira S. Price, Sr., by and through his conservator, Ira S. Price, Jr. Ira S. Price, Sr. died during the pendency of the action prior to trial and Ira S. Price, Jr., as administrator c.t.a. of the estate of Ira S. Price, Sr., deceased, was substituted as the party plaintiff.
Ira S. Price, Sr., had owned and operated a restaurant in North Topeka for many years. It was known as the Ira Price Cafe and was located next to the DX Truck Stop. Price was known as a friendly, charitable person. Ira Price and William Grimes were long-time friends. Grimes is a preacher in a small church in Topeka. The church is located on a seven-acre tract and was formerly a residence. Grimes had ambitions to improve his property by building two garlows and remodeling the residence. He approached his good friend, Ira Price, about furnishing the money. Ira Price agreed. The money was provided in most unusual ways. Some was delivered to Grimes in envelopes in the cafe; some was delivered in envelopes by the filling station attendant next door and some was furnished by Grimes charging material at lumber yards to Ira Price. There was no note or mortgage between the close friends. Ira Price claimed he advanced $165,000 to William Grimes. The improved property was to be sold, Price paid and any profit divided equally between Price and Grimes.
As time went by, Grimes’ need for money continued without end and in spite of Price’s infusions of capital Grimes developed severe financial problems. In 1977 Grimes filed a petition in bankruptcy listing Price as a creditor in the amount of $32,000. Price urged the action as a method for Grimes to overcome his problems. Price paid the attorney fees for the action. Price continued to advance cash and credit to Grimes after the bankruptcy action.
Grimes denies he owes Price any money. He does not deny Price furnished him money and credit, but maintains all was advanced as gifts to him by Ira Price because of their close friendship. The credibility of Grimes’ claim that the advances of money were mere gifts was destroyed by tape recordings of two telephone conversations he had with Ira Price where he acknowledged he owed the money and promised to repay it. The jury believed Price’s version and returned a verdict for him as previously noted.
Grimes contends Price’s action for fraud is barred by the statute of limitations, K.S.A. 60-513(a)(3). The last transactions between the parties occurred more than two years prior to suit. The statute provides in .pertinent part:
“The following actions shall be brought within two (2) years ....
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.”
We dealt with this issue in Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 62-63, 643 P.2d 100 (1982), where we stated:
“ ‘Discovery of the fraud’ has been defined by this court to mean the time of actual discovery or when, with reasonable diligence, the fraud could have been discovered. [Citation omitted.] It does, however, imply actual knowledge, not mere suspicion of wrong. Further, even though his suspicions might have been aroused a party may be lulled into confidence by certain representations and forego any further investigation.”
In Augusta, the court determined Rroomfield was lulled into reliance by representations made, and that the action was timely filed. This case is similar. Here, Price was constantly reassured by Grimes he would sell his property and repay the money loaned, even as late as November 13, 1980. The suit was filed November 13, 1980. We hold the suit timely filed.
Grimes also claims Price did not plead facts which disclose his inability to discover the fraud by the exercise of ordinary diligence. Price cites 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-208, p. 38 (1979), which states:
“Now that discovery in its broadest scope is available to all parties alike the need for the technical pleading vanishes from the picture, not because the rule says it must but because the parties will no longer find any great need for anything more than a bare-bones pleading which outlines the nature of the claim.”
An examination of the petition shows Price clearly satisfied the requirements of notice pleading.
The court permitted introduction into evidence of a federal criminal conviction of Grimes. Appellant was convicted of violating 7 U.S.C. § 2024(b) (1982), which prohibits unauthorized use or possession of food stamp coupons. Grimes contends evidence of the conviction was improperly admitted and cites K.S.A. 60-421, which provides:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
Price argues the objection at trial was not specific and the issue should not be reviewed on appeal. The objection at trial consisted solely of the word “objection.” Grimes did not object when the judgment of the criminal conviction was offered into evidence. In State v. Garcia, 233 Kan. 589, Syl. ¶ 7, 664 P.2d 1343 (1983), it was said:
“An appellate court will not review alleged error in the admission of evidence in the absence of timely objection made thereto, or, if objection is made, unless the specific grounds thereof are clearly stated.”
Appellant’s objection was inadequate and, therefore, bars the raising of the issue on appeal.
Appellant next contends statements made by the decedent, Ira S. Price, Sr., testified to by his wife and son at trial, were inadmissible hearsay. The decedent’s wife and son testified the decedent had told them he had loaned money to Grimes who would sell his property and repay the loan.
Appellee argues the hearsay statements are admissible pursuant to K.S.A. 60-460(<i)(3), which states:
“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 ....
“(3) if the declarant is unavailable as a witness, [a statement] by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
We agree. The facts here conform to the test set out in State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983), where Chief Justice Schroeder wrote:
“To admit hearsay statements under this provision the trial court must find (1) the declarant is unavailable as a witness, (2) the matter described was recently perceived by the declarant and the statement made while his memory was fresh, and (3) the statement was made under circumstances so as to show that it was in good faith, before there was an action pending, and with no incentive to falsify or distort. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d), p. 240 (1979). The trial court is necessarily given considerable discretion in admitting statements under this exception. Vernon’s Kansas C. Civ. Proc. § 60-460(d) (1965); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d) (1979). In Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 (1974), we held that under this provision the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances. See also State v. Brown, 220 Kan. 684, 688, 556 P.2d 443 (1976).”
The trial court did not abuse its discretion in admitting the hearsay statements of Ira Price Sr’s, wife and son pursuant to K.S.A. 60460(d)(3).
Grimes further argues the decedent was mentally incompetent after his June 1980 stroke and all statements made by him after that time should be inadmissible. The trial court ruled the statements were admissible and the decedent was not mentally disabled. The. court submitted the evidence to the jury, allowing Price’s alleged diminished mental capacity to affect only the weight of the evidence, not its admissibility. This was not an abuse of discretion.
The appellant states that fraud was not properly pled or proved. K.S.A. 60-209(b) provides:
“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.”
An examination of the petition discloses it states the circumstances constituting fraud with the requisite particularity. Grimes argues fraud was not proved at trial. In Nordstrom v. Miller, 227 Kan. 59, Syl. ¶¶ 6-9, 605 P.2d 545 (1980), we stated:
6. “Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the trust, where another party justifiably relies on the statement and acts to his injury.”
7. “Fraud is never presumed and must be proven by clear and convincing evidence.”
8. “The term ‘clear and convincing evidence’ means: The witnesses to a fact must be found to be credible, the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.”
9. “The existence of fraud is ordinarily a question of fact. An appellate court’s review is limited to determining whether the trial court’s finding is supported by competent evidence when that evidence is weighed in a manner most favorable to supporting the trial court’s determination. This court is not concerned with the credibility of witnesses or the weight of their testimony, and the trier of facts, not the court of appellate review, has the responsibility of determining what testimony should be believed.”
Evidence was introduced to establish money was given by Price to Grimes, and Grimes bought building materials on Price’s account. Grimes testified he never promised to repay Price from the proceeds of the sale of his property. The two taped conversations between Price and Grimes introduced at trial contradict Grimes’ testimony. The tapes confirm there was an agreement to sell the property and Grimes would repay Price from the proceeds. There was competent evidence of fraud proven at trial to support the jury’s verdict.
Grimes claims the special verdict form used herein permitted the jury to award punitive damages without finding he had committed the independent tort of fraudulent representation.
Appellant bases his argument on the Court of Appeals holding in Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 625 P.2d 505 (1981), where the court determined the verdict form allowed the jury to award punitive damages without finding an independent tort. We find the verdict form used here distinguishable from that in Atkinson. Here, in question three of the verdict form, the jury found Grimes’ conduct was either a willful breach of contract or constituted fraud. In question four the jury awarded $50,000 for the fraudulent conduct of Grimes. When these two questions are read together it is apparent the jury found Grimes’ conduct was fraudulent before it awarded punitive damages. In Atkinson the jury did not have these two questions to construe together. The questions there indicated the jury might have awarded punitive damages without determining an independent tort existed. This issue is therefore without merit.
Appellant’s final issue pertains to the sufficiency of the evidence establishing a contract. In the recent case of Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 248-49, 662 P.2d 1195 (1983), we examined appellate review of formation of a contract:
“The question as to whether a binding contract was entered into depends upon the intention of the parties and is a question of fact. [Citation omitted.] As such, this court’s function is only to determine if the trial court’s finding there was a contract is supported by substantial competent evidence. [Citation omitted.] If it is, there was no error.
“In Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957 (1976), this court reiterated the basic rules regarding contract formation:
“ ‘In order for parties to form a binding contract there must be a meeting of the minds on all the essential terms thereof. [Citations omitted.] To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract.’ [Citation omitted.]
“The Restatement (Second) of Contracts § 33 (1981), offers some guidance here:
“ ‘(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.
“ ‘(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
“ ‘(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.’
“Comment a to this section makes clear the omission of a single term is not always fatal to the contract:
“ ‘[T]he actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are ■left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain.
“ ‘An offer which appears to be indefinite may be given precision by usage of trade or by course of dealing between the parties. Terms may be supplied by factual implication, and in recurring situations the law often supplies a term in the absence of agreement to the contrary.’ ”
Grimes maintains no evidence was introduced to show how much money and credit was to be advanced or how much the property was to be sold for. This is true, but it does not affect the validity of the contract established between Price and Grimes.
The tapes established repayment was agreed to by Price and Grimes. The amount to be expended on improvement of the Grimes’ property and the amount of property to be sold after improvement need not have been determined at the time of contracting. The amounts would depend upon fluctuations in the market place. There was sufficient evidence in this case to establish the existence of a contract.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
In this action plaintiff/appellant seeks to quiet his title to the oil and gas under 160 acres of land in Cowley County, Kansas. The surface interest is not in issue. Defendants are natural persons, corporations or representatives of the estates of deceased persons who hold royalty interests in oil and gas production from the property. Plaintiff alleges these interests have terminated by reason of non-production, according to the terms of the instruments by which they were created. Defendants, on the other hand, contend, the interests have not terminated. The case was submitted to the district court upon an agreed stipulation of the facts, the pretrial order, the deposition of plaintiff, and briefs of the law. In a painstakingly detailed decision the trial court found that defendants’ interests had not terminated, and refused to grant plaintiff the relief sought. Plaintiff has appealed. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The stipulated facts, excluding the exhibits, pertinent to the issues on appeal read:
“1. The real estáte which is the subject of the instant quiet title action is the East Half of the Northwest Quarter and the West Half of the Northeast Quarter of Section 20, Township 33 South, Range 3 East, Cowley County, Kansas.
“2. Norman Wertman acquired title to the aforesaid property from the United States of America on August 1, 1872.
“3. Norman Wertman died intestate on September 25, 1920, leaving as his heirs, his widow, Sarah Wertman, and three daughters, Laurette Spoon, Lillian Maud Fulton, and Nellie May Quinn.
“4. On January 30,1923, Sarah Wertman, widow, Laura Spoon and F.M. Spoon, her husband, Maud Fulton and J.H. Fulton, her husband, and Nellie Quinn and E. M. Quinn, her husband, as lessors, executed a lease on the aforesaid real property to M. W. Baden, as lessee, for the sole purpose of exploring for oil and gas. A true copy of said oil and gas lease, marked Exhibit ‘A’, is attached hereto and made a part hereof. Production of oil from Bartlesville Sand on the land started within the term of the lease.
“5. In December, 1923, the aforesaid lessors executed a series of royalty conveyances to Perry A. Hoefer. A copy of the conveyances are attached hereto as Exhibits ‘B’, ‘C’, ‘D’ and ‘E’, respectively, and are made a part hereof. These conveyances recognize that the grantors had executed an oil and gas lease on the said land and that such lease reserved to them as royalty one-eighth of all the oil and gas produced from said land. These conveyances transferred one-half of the grantors’ royalty rights under the lease to the grantee, Hoefer. The term of the conveyances was 15 years if no oil or gas was found or produced on said land. If oil or gas was produced on said land, the agreement and the royalty rights of grantee thereunder were to be effective so long as production continued. The interests of some of the defendants, including Colonial Royalties Company, are derived through the above conveyances.
“6. Perry Hoefer thereafter assigned part of his interest to E. B. Cline and a part of his interest to assignors of defendant Colonial Royalties Company. Since then there have been a number of further assignments of the E. B. Cline royalty interest.
“7. On July 21, 1924, Sarah Wertman died intestate, leaving her three daughters, Lauretta Spoon, Lillian Maud Fulton, and Nellie Mary Quinn as her sole heirs.
“8. On July 18,1944, Lauretta Spoon, widow, Lillian Maud Fulton, widow, and Nellie M. Quinn and E. M. Quinn, her husband, conveyed the aforesaid real property by warranty deed to R. O. Nelson. A true copy of said deed, marked Exhibit ‘F’, is attached hereto and made a part hereof; it provides in pertinent part that:
‘. . . grantors hereby except and reserve the royalty from the Bartlesville sand now owned by them unto themselves for a period of time as long as the Bartlesville, the now producing sand, is being produced and operated. It being specifically understood the intention of this instrument is to reserve to the grantors the royalty which they now own and are receiving from the Bartlesville sand, and it being further specifically understood that cessation of operations for the purpose of water flooding this sand shall not make this reservation null and void. It, however, being specifically understood that when this present producing sand is entirely abandoned then this reservation of the oil rights shall become null and void and the oil rights retained by the grantors herein shall revert to the grantee herein, it being further specifically understood that the grantors are only reserving their share of the oil which is being produced from the horizon which lies immediately above the Mississippi lime in the Cherokee shale or the base thereof and which is referred to in that area as the Bartlesville, Burbank or Rainbow Bend sand, and that there is no intention herein for the grantors to reserve any oil and gas under any other horizon. It is not the intention of the grantors to retain any rights in the royalty herein-to-before conveyed in any sand or horizon.’
Certain defendants claim under the above reservations which they contend were extended by a pooling agreement executed in 1956.
“9. On March 29, 1956, a pooling agreement was executed creating the West Rainbow Bend Unit encompassing oil and gas leases on certain real property including the East Half of the Northwest Quarter of Section 20, (which is one-half of the land involved in this action). The pooling agreement did not include the West Half of the Northeast Quarter of Section 20, (the other one-half of the land involved in this action). The pooling agreement was executed by the persons who then owned the royalty interests in the land in question. R. O. Nelson did not sign said agreement. The pooling agreement has not been changed or modified and the division of proceeds from production from the West Rainbow Bend Unit are now and have at all times since been divided among the interest owners in accordance with the agreement and the division order based thereon. A copy of the pooling agreement is attached hereto as Exhibit ‘G’ and made a part hereof. On May 1, 1956, the effective date of the pooling agreement, all production in the Unit came from the Bartlesville Sand. There is presently some production from the Layton Horizon on the (Thurlow) (Backus) lease(s), in addition to production from the Bartlesville Sand.
“10. On June 15, 1973, W. D. Short bought the working interest in the oil and gas leases included in the pooling agreement from the holders of such interests. The sale was expressly subject to the pooling agreement of the West Rainbow Bend Unit dated March 29, 1956. Since the sale, W. D. Short has been the operator of the oil and gas leases in the West Rainbow Bend Unit. A true copy of the assignment and bill of sale by Sun Oil Company (Delaware), et al, to W. D. Short and Marjorie O. Short, dated June 15, 1973, recorded July 24,1973, in Book 192 of Leases at Page 482, is attached hereto as Exhibit ‘H’ and made a part hereof. W. D. Short and his wife, Marjorie O. Short, remain the sole owners of the working interest in the oil and gas leases included in the pooling agreement.
“11. On September 1, 1974, R. O. Nelson died testate. Under the terms of his will, title to the 160 acres now the subject of this quiet title action was assigned to his daughter, Dorothy Sheneman, and his son, Bobby L. Nelson, in equal shares.
“12. On November 10, 1977, Dorothy Sheneman Horton, formerly Dorothy Sheneman, Donald D. Horton, her husband, and Bobby L. Nelson, a single person, conveyed by warranty deed the said 160 acres to W. D. Short. W. D. Short obtained all interests the heirs of R. O. Nelson had in said real property.
“13. All production of oil from the 80 acres in the Wertman Lease in the West Rainbow Bend Unit ceased in 1966. All production of oil from the 80 acres in the Wertman Lease outside the West Rainbow Bend Unit had ceased, and the wells had been plugged, prior to November 10,1977. W. D. Short acquired the working interest in the leases in the West Rainbow Bend Unit on June 15, 1973. On June 15, 1973, there was one injection well being used located on the 80 acres of the Wertman Lease within the unit. W. D. Short filed an application dated April 18, 1974, entitled ‘Application for Fluid Repressuring and Water Flooding of Producing Formations’ with the State Corporation Commission, for permission to equip and use a well for repressuring the Bartlesville Formation, said well located 990 feet from the North line and 1,650 feet from the West line of the Northwest Quarter of Section 20, Township 33 South, Range 3 East, Cowley County, Kansas. The application was granted and the well is being used at the present time to repressure the Bartlesville formation in the West Rainbow Bend Unit, of which one-half of the property in question is a part.
“14. There has been and continues to be production of oil from the Bartlesville Sand on the land encompassed by the West Rainbow Bend Unit other than the land in question in this action. Conoco Oil Company is purchasing all of the production from this pooling unit and, in addition to the defendants in this action, is paying some seventy odd persons and firms the net proceeds derived from the royalty interest therefrom.”
Throughout this opinion the original oil and gas lease executed January 30,1923, by Sarah Wertman, et al., will be referred to as the “Wertman lease”; those parties claiming under the royalty conveyances executed in December, 1923, as the “Hoefer interests”; those parties claiming under the royalty reservation in the July 18, 1944, deed to R. O. Nelson as the “Wertman interests”; the East half of the Northwest quarter of Section 20 as the “Wertman west 80 acres”; and the West half of the Northeast quarter of Section 20 as the “Wertman east 80 acres.” The West Rainbow Bend Unit includes the South half of the South half of the Southwest quarter of Section 17, and the Northwest quarter and the North half of the Southwest quarter of Section 20, all in Township 33 South, Range 3 East of the Sixth Principal Meridian, Cowley County, Kansas. The accompanying diagram, reproduced from the record, shows the location of the properties, leases and wells within the unit, along with the West half of the Northeast quarter of Section 20 lying outside the unit.
In considering this appeal, the unusual facts surrounding the ownership of the lessee’s or working interest in the oil and gas leases and the fee title to the Wertman property must be kept in mind. Appellant became the lessee and operator of the four leases within the West Rainbow Bend Unit in 1973 and the fee owner of the Wertman property in 1977. It appears that he did not acquire the lessee’s interest in the Wertman lease covering the Wertman east 80 acres. As pointed out in the stipulation of facts, the West Rainbow Bend Unit was created by a pooling agreement executed in 1956. At that time the Hoefer interests owned one-half of the royalty from the Wertman property and the Wertman interests owned one-half of the royalty from the Bartlesville sand of the Wertman property while R. O. Nelson owned the surface and oil and gas in place subject only to the Hoefer and Wertman royalty interests. The pooling agreement was executed by the holders of the Hoefer and Wertman interests and presumably by all interested owners, lessors and lessees of the other properties in the unit. R. O. Nelson, however, having no right at that time to any of the current production from the Wertman lease did not sign the pooling agreement. The record is silent whether Nelson refused to sign the pooling agreement or was just never asked to sign it. The trial court stated the positions of the parties as:
“The positions of the parties are apparent from the stipulation of facts and the documents attached. Plaintiff as owner of the fee contends that production has ceased upon any part of the 160 acre tract he purchased from the devisees of R. O. Nelson. The Wertman lease contained the familiar thereafter clause providing for continuation so long after the primary term as oil or gas or either of them should be produced from the land. The royalty interests conveyed to Hoefer and those reserved [by the Wertmans] in the Nelson deed have a similar limitation to the life of production, the difference being that the reservation in the Nelson deed has no definite or primary term and the royalty interest reserved is limited to oil produced from the Bartlesville formation. . . . Plaintiff argues that with the lapse of all production from the 160 acres involved by 1977, the royalty interests claimed by the defendants were extinguished according to the terms of the instruments by which they were created.
“Defendants claim continuation of the royalty interests, of course, and premise that claim upon the effect and operation of the pooling agreement. In their view, production extended the royalty interests according to the terms of the conveyances and the reservation by deed, and the pooling agreement, under which production upon any pooled lease should be considered production upon all leases in the unit, is the means by which production has been continued as to the Wertman lease, although there is presently no producing well upon the Wertman lease. Plaintiff counters that the pooling agreement was not signed by R. O. Nelson, at the time of its execution the owner of all mineral and royalty interests in the land except the one-half royalty conveyed to Hoefer and the royalty interest in the oil produced from the Bartlesville sand. As to the outstanding royalty interests, he [Nelson] held the reversionary interest to the oil and gas when the [royalty] interests should terminate. Plaintiff argues that because the Wertman lease did not authorize ‘unitization,’ the voluntary agreement on which defendants rely could not extend the lease unless all interest holders had joined.
“The basic argument that plaintiff makes, much abbreviated, is that because at the effective date of the pooling agreement R. O. Nelson held one-half of the royalty interest in all formations except the Bartlesville sand and the entire reversionary interest under the Wertman lease, he had a ‘significant bundle of rights’ which could be modified only with his consent. . . .
“Defendants, on the other hand, argue that the lack of R. O. Nelson’s signature on the pooling agreement is inconsequential. Because one-half of all oil and gas royalties had been conveyed away for a term of fifteen years and as long thereafter as oil or gas production continued at the time Nelson acquired his interest in 1944 and production had been obtained which perpetuated that interest, and because one-half of the royalty from production in the Bartlesville sand had been reserved by his grantors, and because there was production from the Bartlesville sand at the effective date of the pooling agreement, defendants assert that Nelson had no right to any of the production of oil from the property at the time the pooling agreement became effective. Production from four leases was being pooled, and he had no interest in any of it.
“The alignment of the parties on the effect of the failure of R. O. Nelson to sign the pooling agreement of March 29,1956, defines the crux of the dispute as to the effect of the pooling agreement to continue the interests of the defendants in the subject property. Defendants’ claims to royalty interests are founded upon continuation of production under the conveyances to Hoefer and the reservation in the deed to R. O. Nelson. Continuation of production for such purpose is premised upon the effect of the pooling agreement It is contended that Nelson was not a necessary party and also that his consent to pooling is to be implied from his failure to object when the agreement went into effect. Plaintiff denies either express or implied consent to the agreement by his predecessor in title and argues that without consent to the agreement, production from the unit not on the Wertman acreage included therein could not extend the royalty interests of defendants. Plaintiff does not deny that production under the pooling agreement would extend the royalty interests if the owners of all mineral and royalty interests had joined.
“This issue can be further refined to a question of whether, in this instance, a determinable royalty interest can be pooled without the consent of the owner of the reversionary interest in the oil and gas in place. An additional and related question is whether the owners of royalty interests in a single horizon or formation from which production is being had can effectively pool their interests with the lessors of other oil and gas leases whose interests are not, so far as may be told from the agreement, limited to a single stratum.”
The trial court in its scholarly and well-reasoned opinion reviewed the Kansas cases on termination of determinable mineral and royalty interests as well as other authorities. The trial court held that the Wertman lease, and therefore the outstanding royalty interests, had not terminated and. denied plaintiff s request to quiet his title to the property. The court was not only of the opinion that the pooling agreement, along with continued production from the unit, continued the Wertman lease in effect but that it would also be inequitable to grant plaintiff the relief requested. Under the facts of this case we do not deem it necessary or advisable to determine whether the holder of one hundred percent of the oil and gas royalty from a tract of land can enter into a pooling agreement, absent consent of the owners of the oil and gas in place, and thereby extend their term royalty interests beyond a cessation of production from the leased property when production continues on other property in the unit. We do agree with the trial court that under the circumstances and facts of the instant case, equity precluded the relief sought.
The 1956 pooling agreement provided:
“It is the intention of the parties that said pooled area shall be developed and operated as if said pooled area had been included in a single oil and gas lease. Said pooled area shall be developed and operated without respect to lease boundary lines, on a pooled basis, and LESSEES may drill, use and produce such wells as they deem advantageous to the pooled area, shut in such wells as they deem unnecessary or disadvantageous to the pooled area, use any wells that they select for injection purposes, acquire and inject salt or fresh water, or any other substances, and inject such substances, or any of them, in the pooled area at times, in quantities, at places within or without the pooled area, at pressures and under conditions that they may deem necessary or appropriate, and, in general, do all other things that they deem advisable to recover the oil, gas and other minerals from the pooled area and to conserve such production.
“B. All drilling, development and operations on the pooled area shall be considered for all purposes as drilling or operations on each of the pooled leases and production obtained from any pooled lease shall be considered for all purposes (except for determination of LESSORS’ royalties) as production from each pooled lease and such production shall maintain all rights as to all minerals covered by said leases in force and effect in the same manner as if such production was from each such lease.”
It is interesting to note that while the Wertman property within the unit constituted only approximately 28.5% of the acreage in the unit, that property was to receive 33.7% of the royalty. Evidently the royalty to be paid under the pooling agreement was based upon the relative production from the properties placed in the unit rather than upon the more traditional acreage basis.
At the time of the assignment of the leases to plaintiff in 1973, they were owned by Sunray Mid-Continent Oil Company, Phillips Petroleum Company and Continental Oil Company. The record is not clear which lessee owned the Wertman lease at that time but it is clear that only that portion of the lease covering the Wertman west 80 acres was assigned to plaintiff. There is also nothing in the record to show that the portion of the lease on the east 80 acres has been released by the lessee, whichever it may be, and none of the three corporate lessees was named as a defendant in this action. The 1973 assignment of the leases to plaintiff provided:
“This Assignment and Bill of Sale is made subject to Pooling Agreement of West Rainbow Bend Unit dated March 29, 1956 . . .
It is clear from the documents and facts that plaintiff, the lessee and operator of the leases in the unit, tends to benefit from a failure to further produce the Bartlesville sand under the Wertman property if such failure constitutes a termination of the Wertman lease for non-production. Thus the lessee and operator of the unit, who is under a duty to operate and produce the property to the maximum benefit of both the lessors (in this case the royalty holders) and lessee tends to profit by a total cessation of production from the Wertman property in which,he now owns the fee including the oil and gas in place or as some authorities say, the reversionary rights in the oil and gas after the termination of the Wertman lease.
Plaintiff s dilemma in attempting to wear two hats at the same time is borne out by his deposition testimony and the documentary evidence before the court. At the time he obtained the leases in 1973, the unit was producing approximately thirty to thirty-five barrels of oil per day and at the time of his deposition in March, 1981, the unit was still producing the same amount of oil. In April of 1974 the plaintiff filed with the Kansas Corporation Commission an “Application for Fluid Repressuring and Water Flooding of Producing Formations,” seeking authority to continue to use a well on the Wertman west 80 acres. This well is still being used for the injection of approximately one thousand five hundred barrels of fluid per day. The application clearly states the well is “to be used in repressuring the lease or unit.” In addition, the tank batteries for holding the oil from all of the unit are located upon the Wertman west 80 acres. Plaintiff also conceded that if he prevailed in this action there was a possibility that he would do further exploration and seek additional production from the Wertman property. He further testified as follows:
“Q. Apparently there was a great deal of production because the pooling agreement indicates that one-third or over — a little over one-third of the ownership in the entire pool was attributed to the Wertman lease; am I correct about that?
“A. Yes.
“Q. What happens to this third of the interest in the pool in the event you prevail in this lawsuit?
“A. Goes to me if I prevail.”
It is obvious from plaintiff s own testimony that as operator of the leases within the unit he has utilized and considered the Wertman west 80 acres as an integral and necessary part of the overall operation.
The trial court in its opinion stated:
“The action to quiet title originated in the courts of equity (65 Am. Jur. 2d, Quieting Title § 1), and the maxims of equity are applicable in suits to quiet title. (Id. § 59.) The fundamental principle that one who seeks equity must do equity applies in the quieting of title. (27 Am. Jur. 2d, Equity § 131.)
‘The principle thus expressed governs the court in administering any kind of equitable relief in any controversy where its application may be necessary to work out complete justice. Having come into court seeking equitable relief, a complainant must offer to do equity as a condition to the granting of the remedy or relief sought. By appealing to the equitable jurisdiction, the complainant is deemed to have submitted himself to the court’s decision as to what is necessary to do justice to the defendant as determined in the light of equitable principles.’ (Id.)
The principle expressed in the maxim is applicable in the instant case. Plaintiff purchased the lessees’ interests in the leases included in the unit subject to an agreement in which the expressed intent of the parties was to operate the pooled area as if it had been included in a single lease. Plaintiff cannot seek the equitable relief of divesting interests in the royalties from production from the Bartlesville formation when those interests were admittedly extant at his acquisition of the working interest in the pooled leases and were by the terms of the pooling agreement continued by production from any lease in the unit.”
The court further stated:
“If pooling of the landowner’s royalty interest in the Bartlesville production could not occur without the consent of R. O. Nelson, who had no present interest in the Bartlesville production royalties, he would have had the power of veto. If it were advantageous to the royalty interest owners to pool or utilize their interests for secondary recovery operations, which are contemplated by the agreement in the reference to injection wells, and thus treat the formation as a single energy mechanism, they could have been thwarted by Nelson’s refusal to join in an agreement which had no present benefit to him. Indeed, it might have been to his benefit to obstruct secondary recovery by this means. When production from the Bartlesville sand ended, he was, after all, the reversioner. In refusing to join the agreement, he would have been, in effect, exercising rights to the landowner’s interest in production from the Bartlesville formation which had clearly been granted to others.
“The propositions defendants assert regarding the effect of the assignment of the lessee’s interest and the meaning of ‘subject to’ cannot be quarreled with and no extensive analysis or citation of authorities is necessary. At the time of the assignment of the lessees’ interest to plaintiff, plaintiff concedes the Wertman lease was in force by reason of production from the leasehold. There appears to be no argument that the duty of the lessee with regard to the royalty interests in the Bartlesville sand devolved upon plaintiff at that time by reason of the terms of the assignment. With the lessee’s obligation and responsibility to the Bartlesville royalty interest owners to operate the Wertman lease, as well as all other leases in the unit, for the mutual benefit of lessors and lessees, it would be contrary to the policy of the law to say that the lessee might, upon acquisition of the reversionary interest in the Bartlesville stratum and the other mineral interests, simply obliterate the Bartlesville royalty interests by reliance upon termination of production when all reasonable efforts to secure and continue production were required of him in his capacity of lessee.
“Treatment of the pooled acreage under several leases as a single oil and gas lease for all purposes is the legal and equitable right of all lessors under the pooling agreement. The correlative of that right is the duty of the lessee to honor the obligations of the pooling agreement through which consideration accrues to him. Plaintiff cannot seek the benefit of an equitable remedy and at the same time refuse to honor an obligation which equity would enforce.”
The trial court reached, inter alia, the following conclusions:
“D. Plaintiff acquired the working interest in all of the leases subject to the pooling agreement of March 29, 1956, and one of the terms of that agreement to which his interest was subject was that production from anywhere in the unit should be deemed production from all leases of the unit for all purposes except computing production shares. It would violate the terms and intent of the agreement and work a substantial inequity upon defendants here to permit plaintiff to repudiate the agreement by claiming termination of the Wertman lease by reason of lapse of production when he is both the operator-lessee who specifically assumed the obligation of producing the leases in the unit and the owner of the reversion in the Bartlesville formation on termination of the Wertman lease.
“E. It would be an intolerable inequity and contrary to the policy of upholding lawful agreements effecting unitization to promote conservation and efficient and economical recovery of oil and gas to permit plaintiff to divest defendants here of their interest in production from the West Rainbow Bend Unit after many years of production for the benefit of all interest holders in the unit from the included Wertman acreage.”
Based upon the unique factual situation, we concur in the trial court’s judgment and its application of equitable principles in this case. See Renensland v. Ellenberger, 1 Kan. App. 2d 659, 665-666, 574 P.2d 217 (1977); Hultz v. Taylor, 163 Kan. 180, 181 P.2d 515 (1947).
In view of the decision reached herein, plaintiff s assertion of error in the trial court’s refusal to allow an amendment of the pleadings to include some seventy owners, lessors and royalty owners of the other properties in the unit is moot. Likewise, we have concluded that plaintiffs alternative argument that the Hoefer and Wertman interests have terminated at least as to the Wertman east 80 acres is without merit.
The judgment is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Andrew T. Dubish was convicted of aggravated kidnapping (K.S.A. 21-3421), aggravated sodomy (K.S.A. 21-3506), aggravated battery (K.S.A. 21-3414), and of making a terroristic threat (K.S.A. 21-3419). He appeals from these convictions.
The defendant, Andrew Dubish, and Mildred L. Dubish had been married for twenty years and had two sons, Chris and Darren. The Dubishes separated on July 30, 1982. Mrs. Dubish filed for divorce on August 2,1982. The divorce hearing was held September 17,1982, but the journal entry granting Mrs. Dubish a divorce was not filed with the clerk of the court until October 15, 1982.
On October 4, 1982, Darren was celebrating his seventh birthday. The defendant arranged with Mrs. Dubish to spend time with his sons to celebrate Darren’s birthday. On October 4, 1982, Mr. Dubish picked up Chris and Darren at Mrs. Dubish’s residence at 1233 Thompson Street in Emporia. The defendant had agreed to return the children at 10:00 p.m. that evening. When the defendant returned to the residence at 10:00 p.m., Mrs. Dubish was not there. Chris, then age 15, informed his father that his mother was in the process of moving. Mr. Dubish, with the two boys in the vehicle, drove to the new residence. Finding no one there, he headed back toward the Thompson Street residence. On the return trip, the defendant and Mrs. Dubish passed each other. Mrs. Dubish turned her car around and followed the defendant to 1233 Thompson Street. Tom Thomsen, a friend of Mrs. Dubish, was following her in his car. Thomsen also turned and went to Mrs. Dubish’s residence.
The defendant, upon arriving, parked in the driveway of the house. Mrs. Dubish also pulled into the driveway, and Mr. Thomsen parked across the street. The defendant saw Mr. Thomsen’s car and asked Mrs. Dubish if that was her lover. Then the defendant walked across the street and told Thomsen if he “fucked with her [Mrs. Dubish], I would plant him.” The defendant walked back across and Mr. Thomsen drove off.
While the defendant had been across the street talking to Thomsen, Mrs. Dubish had parked her car in the street in front of her house. The defendant walked to the car and said he wanted to talk with her. Mrs. Dubish said they could speak there. The defendant stated he did not want to speak with her there. Mrs. Dubish attempted to back her car into the driveway. The defendant reached into the car and pulled the keys out of the ignition, but the car continued running. The defendant opened the car door and jerked Mrs. Dubish from the car by her hair. The defendant gave the car keys to Chris and told him to put the car in the garage. Chris got into the car and drove off. Chris later returned home and telephoned the police. The defendant kept stating he wished to speak.with Mrs. Dubish, but she did not want to speak with him. The defendant dragged Mrs. Dubish to his pickup truck and shoved her into the truck. Mr. Dubish then ordered Darren into the truck and drove off with Mrs. Dubish and Darren in the truck.
The defendant drove north at a very fast rate. While driving, the defendant struck Mrs. Dubish in the face chipping one of her front teeth. Mrs. Dubish tried to jump out of the truck but was restrained by the defendant. The defendant drove north on Highway 99, turned off Highway 99 onto a gravel road and stopped near a pond. There Mr. Dubish threatened to throw Mrs. Dubish into the pond, stating that the pond was 30 feet deep. Because she could not swim, Mrs. Dubish was terrified. The defendant told Darren to lie down in the front seat. Mr. Dubish got out of the truck pulling Mrs. Dubish out with him. The defendant struck Mrs. Dubish numerous times in the face, stomach and back. He pulled her hair, kicked her and beat her until she fell to the ground. The defendant stated he hated her and wanted to kill her. He took her to the back of the truck, unzipped his pants and ordered Mrs. Dubish to perform oral sex. She told the defendant she did not want to, but he told her to do it. At the trial Mrs. Dubish testified she performed oral sex because she had been beaten and was frightened. After Mrs. Dubish had performed oral sex with the defendant, the defendant unzipped and pulled down Mrs. Dubish’s pants and then beat her again. Mrs. Dubish could not remember precisely what occurred at this point in time.
After the beatings of Mrs. Dubish by the defendant had ended, the defendant retrieved a mirror from the truck and forced Mrs. Dubish to look into the mirror. He threatened to send two men to Mrs. Dubish’s house to harm her if she called the police. Then the defendant drove off in his pickup truck leaving Mrs. Dubish lying in a ditch beside the road. The defendant soon returned to the scene but was unable to locate Mrs. Dubish, who was hiding. After the defendant left the second time, Mrs. Dubish rested, then got up and ran barefoot to a residence about a mile away. A Lyon County ambulance was called and took Mrs. Dubish to a hospital. At approximately 2:30 a.m. on October 5, 1982, Dr. Ginavan examined the victim at the hospital.
Mrs. Dubish stayed in the hospital until October 10, 1982. Sbe was required to return to the hospital within an hour because of a urinary infection. Mrs. Dubish was released from the hospital on October 12, 1982.
A jury trial began on January 19, 1983, and ended January 26, 1983. During the trial Dr. Ginavan testified:
“She [Mrs. Dubish] had marked swelling and bruising of the left cheek area. There was also swelling of the right cheek area. There were multiple bruises of both arms and legs and upper chest and the left scapular area of the left back, and there were red linear discolorations of the neck and reddened area in the upper abdomen. Her — the white part of her left eye was hemorrhagic.
“Q. Now, what does that mean?
“A. The white part had blood in it, was red. There was tenderness of the right skull, posterior skull area. She had a quarter of an inch laceration of the forehead, and she complained of pain in the left chest and left elbow.”
The defendant was convicted of aggravated kidnapping, aggravated sodomy, aggravated battery and of making terroristic threats. Mr. Dubish was sentenced to a life term of imprisonment for the aggravated kidnapping, not less than five years nor more than twenty for the aggravated sodomy, not less than three years nor more than ten years for the aggravated battery, and not less than one year nor more than two years for the terroristic threat.
The defendant argues first that he cannot be convicted of aggravated sodomy because he was still married to the victim at the time the alleged offense occurred; that K.S.A. 21-3505 does not permit a husband to be convicted of committing the crime of sodomy or aggravated sodomy against his wife.
K.S.A. 21-3506 provides:
“Aggravated sodomy is sodomy committed:
“(a) With force or threat of force, or where bodily harm is inflicted on the victim during the commission of the crime.”
K.S.A. 21-3505 provides:
“Sodomy is oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex.”
Penal statutes must be strictly construed in favor of the persons sought to be subjected to them. The rule of strict construction simply means ordinary words are to be given their ordinary meaning. The statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Martin, 232 Kan. 778, 781, 658 P.2d 1024 (1983).
The question is whether a husband can be convicted for the sodomy of his wife. The State construes K.S.A. 21-3505 as. meaning one may be convicted of sodomy if either the sodomy occurs between persons not husband or wife or if one adult member of the opposite sex does not consent. This would not seem to be a reasonable construction of the statute. Ascribing the statute’s words their ordinary meaning, (1) a husband and wife cannot be convicted of sodomy for activities between them, and (2) neither can consenting members of the opposite sex. Prior to July 1, 1983, married couples and consenting adult members of the opposite sex were the two types of couples which could not be prosecuted for sodomy. This court recognized in State v. Chears, 231 Kan. 161, 163, 643 P.2d 154 (1982), that the State had to prove the victim was (1) a nonconsenting adult, and (2) not the wife of the defendant before the crime of aggravated sodomy could be proven.
The new sodomy statutes passed by the 1983 legislature became effective on July 1, 1983, adding credence to the defendant’s construction of the statutes in force on October 4, 1982. These new statutes read:
“(1) Criminal sodomy is sodomy between persons who are members of the same sex or between a person and an animal.” K.S.A. 1983 Supp. 21-3505.
“Aggravated criminal sodomy is:
“(c) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances:
“(i) When the victim is overcome by force or fear.” K.S.A. 1983 Supp. 21-3506.
A spouse may be prosecuted for the commission of aggravated criminal sodomy against his or her spouse pursuant to the new statutes. The specific reference to husbands and wives originally contained in K.S.A. 21-3505 was omitted. In determining the legislative intent for the purpose of statutory construction, the historical background and changes made in a statute are to be considered by the court; any changes and additions made in existing legislation raises a presumption that a change in meaning and effect was intended. State ex rel. Stephan v. U.S.D. No. 428, 231 Kan. 579, 647 P.2d 329 (1982). One of the members of the 1983 House Judiciary Committee in committee hearings stated the major issue regarding the bill amending K.S.A. Chapter 21, Article 35, was whether spouses would have immunity from prosecution for sexual offenses. An earlier version of the new K.S.A. 21-3506 contained similar wording to the old 21-3505. The committee voted to remove all spousal immunity from the bill and the wording granting spousal immunity was abandoned. See K.S.A. 21-3502 and K.S.A. 1983 Supp. 21-3502.
A statute should never be given construction that leads to uncertainty, injustice or confusion, if possible to construe it otherwise. In construing a statute, words and phrases should be construed according to context and the approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108 (1980). The State’s construction of the statute is strained and incorrect.
Were the defendant and the victim still married when the alleged crimes took place on October 4, 1982? That question requires a determination of when the divorce between the parties took effect.
The defendant and the victim separated on July 30, 1982. On September 17, 1982, a hearing was conducted by the district court concerning the divorce action filed by the victim in August of 1982. Both parties were present at the hearing. The trial judge granted the divorce and noted the granting of the divorce in his trial docket. The court directed the victim’s attorney to prepare a journal entry. The journal entry was filed on October 15, 1982.
The State cites in In re Estate of Penn, 216 Kan. 153, 531 P.2d 133 (1975), in support of its argument that the divorce was effective on September 17, 1982. In Penn, the trial judge made a handwritten entry in his trial docket. The judge did not direct the preparation of a journal entry nor did he tell the clerk to enter the judgment in the appearance docket. The Penn court stated:
“The entry in his trial docket by a trial judge of minutes reflecting in the present tense a judgment of divorce rendered in open court is tantamount to a direction to the clerk that such judgment be entered forthwith.” 216 Kan. 153, Syl. ¶ 4.
The clerk’s entry in the appearance docket would be an effective entry of judgment. The court differentiated the judicial act of rendering a judgment and the ministerial act of recording the judgment rendered. Penn was decided under the prior statute, K.S.A. 60-258(h) (Corrick), which provided:
“(b) What constitutes entry of judgment. If judgment is to be entered on the verdict of a jury, or by direction of the judge forthwith, the clerk shall make a notation of the judgment on the appearance docket as provided by section 60-2601, and such notation shall constitute the entry of judgment, and no journal entry or other document shall be required to render the judgment effective. If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. The clerk shall forthwith note the filing of the journal entry on the appearance docket together with a brief abstract of the nature of the judgment.” Emphasis supplied.
K.S.A. 60-258 was amended in 1976, and now provides:
“Entry of judgments shall be subject to the provisions of section 60-254(b). 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. . . .
“When judgment is entered by judgment form the clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure of service of a copy of the judgment form shall not affect the validity of the judgment.”
The new statute’s language is clear. No judgment is effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. In re Estate of Burns, 227 Kan. 573, 575, 608 P.2d 942 (1980). In the recent case of Anderson v. United Cab Co., 8 Kan. App. 2d 694, 666 P.2d 735, rev. denied September 8, 1983, the Court of Appeals found the notation of the decision of the trial judge in his trial docket, and the notification of the decision to the attorneys by letter, was not in compliance with K.S.A. 60-258. The letter contained a direction to defendant’s counsel to prepare a proper journal entry. The Court of Appeals held entry of judgment did not take place until the journal entry was filed. See also Smith v. Smith, 8 Kan. App. 2d 252, 655 P.2d 469 (1982).
The entry of judgment in this case occurred on October 15, 1982, when the journal entry was signed by the judge and filed with the clerk of the court. On October 4, 1982, the defendant and the victim were still married.
The defendant contends the trial court erred in overruling the defendant’s motion to reduce the charge of aggravated battery to the charge of battery. The defendant argues the evidence did not establish that the victim suffered great bodily harm. The defendant’s motion attacks the sufficiency of the evidence underlying the aggravated battery conviction. A motion attacking the sufficiency of the evidence is in reality no different than a motion for judgment of acquittal. State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978). A trial court in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Hill, 233 Kan. 648, Syl. ¶ 3, 664 P.2d 840 (1983).
The crime of aggravated battery is defined by K.S.A. 21-3414:
“Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
“(a) Inflicts great bodily harm upon him; or
“(b) Causes any disfigurement or dismemberment to or of his person; or
“(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.”
Bodily harm has been defined as “any touching of the victim against [the victim’s] will, with physical force, in an intentional hostile and aggravated manner.” State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975). The word “great” distinguishes the bodily harm necessary in this offense from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery. Whether the injury or harm is great or not is generally a question of fact for the jury. State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978).
The defendant requested an instruction defining “great bodily harm.” The defendant claims the trial court’s refusal to define great bodily harm in its instruction was error. The court’s instruction followed PIK Crim. 2d 56.18.
The court in State v. Sanders, 223 Kan. at 552, noted K.S.A. 21-3414 is couched in language which is readily understandable, and there are no omissions of necessary language. See State v. Kleber, 2 Kan. App. 2d 115, 119, 575 P.2d 900, rev. denied 225 Kan. 846 (1978). The Pattern Instructions for Kansas - Criminal for aggravated battery does not include a definition of great bodily harm. See PIK Crim. 2d 56.18.
In charging the jury in a criminal case, it is the duty of the trial court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court. State v. Nesmith, 220 Kan. 146, Syl. ¶ 3, 551 P.2d 896 (1976); State v. Lashley, 233 Kan. 620, Syl. ¶ 6, 664 P.2d 1358 (1983). The instruction of the court follows the language of K.S.A. 21-3414 and adequately defines aggravated battery.
The defendant claims the trial court erred in not directing a verdict for the defendant on the charge of aggravated kidnapping. The motion is essentially a motion for judgment of acquittal and attacks the sufficiency of the evidence. See K.S.A. 22-3419; State v. Sanders, 225 Kan. at 151. The standard for ruling on such motions has been previously stated in this opinion.
The defendant argues he did not have the requisite intent for conviction for aggravated kidnapping. K.S.A. 21-3421 provides:
“Aggravated kidnapping is kidnapping, as defined in section 21-3420, when bodily harm is inflicted upon the person kidnapped.”
K.S.A. 21-3420 provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person;
“(b) To facilitate flight or the commission of any crime; or
“(c) To inflict bodily injury or to terrorize the victim or another.”
The charge of aggravated kidnapping against the defendant followed the statutory language contained in section (c). K.S.A. 21-3201 states that except as provided by sections 21-3202, 21-3204 and 21-3405, a criminal intent is an essential element of every crime defined by the Kansas Criminal Code. An element of aggravated kidnapping is the specific intent with which the taking or confining is done. State v. McGee, 224 Kan. 173, 177, 578 P.2d 269 (1978). One of the specific intents listed in K.S.A. 21-3420 must be proven before a person may be convicted of aggravated kidnapping. State v. Brooks, 222 Kan. 432, 434, 565 P.2d 241 (1977).
The defendant claims his only intent in shoving the victim into his truck and driving into the country was to have an uninterrupted conversation with the victim. He stated his desire to speak with the victim several times. The evidence belies the defendant’s stated motive. Defendant claims he wished to speak with the victim in private, but was not willing to hold a conversation near the victim’s car. The defendant became very angry, pulled the victim from her car by her hair, struck her, and dragged her to his truck. He hit the victim while driving and brutally beat the victim after he stopped the truck. During the beating, the defendant said he hated the victim and wanted to kill her. After stopping his vehicle, the defendant threatened to throw the victim into a 30-foot deep pond. The defendant was aware that Mrs. Dubish could not swim. Specific intent as an element of the crime charged is normally a question of fact for the jury and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof. State v. Stringfield, 4 Kan. App. 2d 559, Syl. ¶ 2, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980). The jury, when reviewing the evidence, found that the defendant abducted the victim with the specific intent to inflict bodily injury upon her or to terrorize her.
The defendant contends he cannot be convicted of aggravated kidnapping, aggravated sodomy, aggravated battery and terroristic threats because his conduct constituted one continuing act of force. In essence, defendant argues the four charges are multiplicitous. The defendant does not contest the aggravated kidnapping conviction under this issue, but claims the other three convictions are multiplicitous since he had been convicted of aggravated kidnapping. Since we have determined that the defendant and the victim were married, his conviction for aggravated sodomy was erroneous. The question is narrowed to whether under the facts of this case the defendant’s convictions for aggravated battery and terroristic threat were multiplicitous.
The State claims the defendant did not raise the issue at the trial level and should not be allowed to raise the issue on appeal. Generally, an appellate court will consider only those issues presented to the trial court for determination. State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982). One of the exceptions to the general rule stated in Puckett is if consideration of the issue raised on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights. 230 Kan. at 598.
The issue of multiplicity was considered in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). The court stated the principal danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense. 224 Kan. at 154-55. The fundamental right of a defendant to a fair trial under the 5th and 14th Amendments to the Constitution of the United States would be violated by a multiplicitous conviction.
The State may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution. In State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976), we held that a single and continuing act of force could not form the basis for the crimes of aggravated assault and kidnapping. Lassley, armed with a knife, accosted a young woman in the home where she was baby-sitting. He ordered her outside, placed the knife at her throat, and subsequently took her to some nearby shrubs where she was raped. He was charged and convicted of kidnapping, aggravated assault and rape. This court stated:
“Both the kidnapping and rape charges required proof of the element of force. In each instance the force was supplied by evidence of the conduct of defendant in ordering the victim to do acts under the implied threat of harm. The fact defendant had a knife in his hand was significant in establishing the force element of both crimes. This same act of force cannot also provide the basis for the charge of aggravated assault. . . . The conduct of defendant in the instant case constitutes a single continuous transaction in which two separate and distinct offenses were committed. The act cited by the prosecution as constituting the offense of aggravated assault was part of the act of kidnapping and a prelude to the act of rape. In sum, this case presents a situation where there was a continuous act of force on the part of the defendant. The act which was relied on for the charges of rape and kidnapping cannot also be used to provide the basis of a separate offense. We hold therefore that the trial court erred in refusing to dismiss the charge of aggravated assault.” 218 Kan. at 761-62.
In State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979), defendant Racey was convicted of kidnapping and aggravated assault. Racey continually threatened the victim of the kidnapping with a gun from the time the victim got into the car until the victim was rescued. This court found there was but one continuing act of force. The court set aside the conviction of aggravated assault. In Lassley and Racey the defendants continually threatened the victim by displaying a weapon; one continuing act of force was used as the basis for more than one conviction. But a single act may constitute two or more distinct and separate offenses, and a person charged with such act as two separate offenses may be convicted and punished for both. In State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), this court determined that when a homicide is committed in the course of an aggravated robbery, the offenses do not merge. The essence of aggravated robbery is to deprive a person or property, an element not found in homicide. Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act. In State v. James, 216 Kan. 235, 531 P.2d 70 (1975), this court determined that an assault and battery, following which the victim broke away, does not merge with and is distinct from forcible rape, which occurred at a later time and at a different place. For additional discussion on multiplicity see State v. Chears, 231 Kan. at 162-63.
We will now review the facts of this case as they apply to the remaining convictions. Defendant was convicted of (1) aggravated kidnapping, (2) aggravated battery, and (3) terroristic threat. The aggravated kidnapping occurred at the victim’s home. The defendant beat, pulled and dragged the victim to his pickup truck. After forcing the victim into the pickup truck, the defendant transported the victim to a pond. That act was separate and distinct from what occurred sometime later in a field near the pond.
After the pickup was stopped in a remote field near the pond, the defendant forcefully removed the victim from the vehicle. He again beat Mrs. Dubish, striking her in the face, stomach and back, pulled her hair and kicked her numerous times. After being beaten into submission, the victim was forced by the defendant to commit oral sex. The acts of hitting and kicking the victim were sufficient for the jury to find the defendant guilty of aggravated battery.
Following the act of oral sex, the defendant again beat the victim. Just prior to abandoning the victim in the field, the defendant committed the act of terroristic threat. He retrieved a mirror from the pickup truck and forced the victim to look into the mirror. The defendant then threatened to send two men to the victim’s house to harm her if she called the police.
Each offense was committed separately and severally, at different times. The aggravated kidnapping occurred at a separate place than the aggravated battery and the terroristic threat. The offenses cannot be said to arise out of a single wrongful act. The defendant’s claim that the acts of aggravated kidnapping, aggravated battery, and terroristic threat constituted one continuing act of force is without merit.
The conviction and the sentence for aggravated sodomy as charged in count III of the information is set aside and the judgment is reversed to that extent; in all other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by the Kansas Department of Human Resources (KDHR) from a decision of the Shawnee County District Court enjoining the KDHR from proceeding under a wage claim made pursuant to K.S.A. 44-313 et seq., on the theory that the KDHR action is preempted by the action of the National Labor Relations Board (NLRB).
. Appellee Whelan’s, Inc. is a company doing business in the State of Kansas and is subject to the provisions of K.S.A. 44-313 et seq. Appellee Vernon Jarboe is the chief executive officer of Whelan’s Inc. and is subject to the provisions of K.S.A. 44-313 et seq., as found in K.S.A. 44-323(¿). Intervenors are employees of Whelan’s.
For a number of years, Whelan’s maintained a collective bargaining relationship with its employees’ designated bargaining agents, Truck Drivers Local No. 696, Carpenters Local No. 1940 and Carpenters Local No. 1445. On August 31, 1981, the collective bargaining agreements of Truck Drivers Local No. 696 and Carpenters Local No. 1940 expired. Negotiations on new agreements continued with work uninterrupted through late October, 1981. On October 12,1981, Whelan’s implemented aten percent wage reduction for all employees from that contained in the expired collective bargaining agreements. Then on November 18, 1981, Whelan’s reduced wages an additional fifteen percent. On October 26,1981, each of the employees who are intervenors in this action went on strike.
On December 9,1981, an unfair labor practice charge was filed with the NLRB (Case No. 17-CA-10751) by Truck Drivers Local No. 696, alleging Whelan’s refused to pay accrued vacation benefits to striking employees in retaliation for their striking activities.
The NLRB then asserted its jurisdiction over the unfair labor practice charge. On January 20, 1982, general counsel for the NLRB issued a Complaint and Notice of Hearing, finding probable cause of a violation of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. (1976), due to Whelan’s refusal to pay striking employees their vacation pay.
On March 4, 1982, Whelan’s executed a settlement agreement of the unfair labor practice charge, agreeing to pay all striking employees their accrued vacation pay at the current reduced wage rate. The settlement agreement was approved by the regional director of the NLRB on March 31, 1982. Before the settlement agreement was approved, the regional director considered and rejected arguments by the union that the vacation pay should have been calculated at the wage rate in existence when the vacation time was accrued, which was prior to the wage cuts. The union refused to enter into the settlement agreement because of the wage rate at which the accrued vacation pay was computed. The reduced amount of vacation pay was then paid to all striking employees by Whelan’s. On June 18,1982, the acting regional director advised the union and Whelan’s the terms of the settlement agreement had been carried out and the file was closed. No appeal was taken.
Thereafter, intervenors in the instant matter filed a claim for wages under K.S.A. 44-313 et seq. with the KDHR, alleging their accrued vacations should be paid at the wage rate in existence at the time the vacation wages were earned. The matter was set for hearing by the KDHR.
Appellees filed an action in Shawnee County District Court asking for a permanent injunction prohibiting the KDHR from proceeding with an administrative determination of the wage claims filed by intervenors. Appellees maintain the action by the KDHR is barred on the grounds of federal preemption. The district court on June 28, 1982, directed that all proceedings on the merits of the claims of the intervenors before the state agency be stayed pending a determination by the agency regarding preemption.
On November 24, 1982, the decision of the agency was rendered. The agency determined the claims of the intervenors were not preempted by the NLRA nor by the actions of the NLRB in connection with unfair labor practice charges which were filed by the Truck Drivers Local No. 696.
On April 12, 1983, the district court reversed the decision of the agency and concluded, as a matter of law, the claims of the intervenors were not within the jurisdiction of the agency. The court then granted the permanent injunction requested by appellees. The KDHR appeals.
The sole issue here is whether the district court erred, as a matter of law, when it held the KDHR was preempted by the NLRA from acting on the wage claims filed by the intervenors pursuant to K.S.A. 44-313 et seq.
The enactment of the NLRA in 1935 marked a fundamental change in this nation’s labor policies. Congress expressly recognized collective organization of segments of the labor force into bargaining units which were capable of exercising economic power comparable to that possessed by employers could produce benefits for the entire economy. Congress decided the benefits of collective bargaining would outweigh the occasional costs of industrial strife associated with the organization of unions and the negotiation and enforcement of collective bargaining agreements. The previous notion that union activity was an illegal “conspiracy” and that strikes and picketing were examples of unreasonable restraints of trade was displaced by an unequivocal national declaration of policy establishing the legitimacy of labor unionization and encouraging collective bargaining. Gorman, Labor Law 1-6 (1976).
The new federal statute protected the collective bargaining activities of employees and their representatives and created a regulatory scheme to be administered by an independent agency which would develop experience and expertise in the labor relations area. The new agency was denominated NLRB. The United States Supreme Court promptly decided the federal agency’s power to implement the policies of the new legislation was exclusive, making the states powerless to enter overlapping rules. State labor law was preempted by the NLRA. See Bethlehem Co. v. State Board, 330 U.S. 767, 775-77, 91 L.Ed. 1234, 67 S.Ct. 1026 (1947).
The preemption principle is derived from the supremacy clause of Article 6 of the United States Constitution. Additionally, Article 1, Section 8 of the Constitution provides Congress with the exclusive authority to regulate any conduct affecting interstate commerce. By virtue of this authority, federal law may preempt or supersede any state law on the same subject. In passing federal legislation under the commerce clause, Congress has discretion to determine the extent to which a federal statute is to preempt or permit state regulation in the same field. Hence, the constitutional basis for the NLRA is the commerce clause. The preemption in this area arose from the interest in uniform development of the national labor policy which required that matters which fell squarely within the regulatory jurisdiction of the NLRB be evaluated exclusively by the agency. The Supreme Court recognized this in Garner v. Teamsters Union, 346 U.S. 485, 98 L.Ed. 228, 74 S.Ct. 161 (1953).
Until recently, Kansas has held state law is preempted by the NLRA from regulation of labor-management disputes. See Inland Industries, Inc. v. Teamsters & Chauffeurs Local Union, 209 Kan. 349, 496 P.2d 1327 (1972); Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 321 P.2d 564 (1958); Asphalt Paving v. Local Union, 181 Kan. 775, 317 P.2d 349 (1957).
In 1959, the United States Supreme Court articulated a test to determine when the NLRA would preempt state law. The need for such a test was necessary since despite the general preemption of state law by the NLRA, Congress still left much to the states, “ ‘ “though Congress has refrained from telling us how much.” ’ ” San Diego Unions v. Garmon, 359 U.S. 236, 240, 3 L.Ed.2d 775, 79 S.Ct. 773 (1959), quoting Garner, 346 U.S. at 488. The test to determine if the states must defer to the NLRB is whether an activity is arguably subject to § 7 or § 8 of the Act. Garmon, 359 U.S. at 245. Sections 7 and 8 of the NLRA cover both protected “concerted activities” and unfair labor practices. See 29 U.S.C. §§ 157, 158. The Garmon rule also included two previously recognized exceptions to preemption. These included matters of “peripheral concern” to the NLRB and when the “conduct touched interests so deeply rooted in local feeling and responsibility.” 359 U.S. at 243-44. See also Machinists v. Gonzales, 356 U.S. 617, 2 L.Ed.2d 1018, 78 S.Ct. 923 (1958), and Automobile Workers v. Russell, 356 U.S. 634, 2 L.Ed.2d 1030, 78 S.Ct. 932 (1958). The Kansas Supreme Court has followed the Garmon doctrine. See Continental Slip Form Builders, Inc. v. Local Union, 195 Kan. 572, 408 P.2d 620 (1965).
The United States Supreme Court further refined the Garmon test in Farmer v. Carpenters, 430 U.S. 290, 51 L.Ed.2d 338, 97 S.Ct. 1056 (1977). Farmer established three criteria to help determine whether state regulation conflicted with federal jurisdiction. These criteria are: (1) when the underlying conduct was not protected by the NLRA and there was no risk that the cause of action would result in state regulation of conduct Congress intended to protect; (2) when there was an overriding state interest in protecting residents and this interest was deeply rooted in local feeling and responsibility; and (3) when there was little risk the state cause of action would interfere with the effective administration of national labor policy. 430 U.S. at 298.
In 1978, the United States Supreme Court further relaxed the rules of preemption pertaining to labor disputes. See Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 56 L.Ed.2d 209, 98 S.Ct. 1745 (1978). In Sears, a dispute arose between the San Diego Carpenters Union and a Sears department store when the union discovered Sears was using non-union labor. The union began picketing on Sears’ property. After requests to leave were ignored by the picketers, Sears obtained an ex parte preliminary injunction to prohibit their activity. The California Supreme Court ruled state court jurisdiction was preempted because the disputed conduct was arguably covered by the NLRA. The United States Supreme Court reversed. The Supreme Court noted the state forum must be opened to the employer in the case of peaceful trespassory picketers, otherwise, the employer would have no redress. The only remedies afforded the employer were to request the picketers to leave or physically expel them. The first remedy could be ignored and the latter creates a risk of tort liability. See Comment, Labor Law: Expansion of State Court Jurisdiction in Labor-Management Controversies, 19 Washburn L.J. 182, 185-86 (1979).
After Sears, the United States Supreme Court vacated and remanded a Kansas case for rehearing in light of Sears. See Reece Shirley & Ron's Inc. v. Retail Store Employees Union & Local 782, 222 Kan. 373, 565 P.2d 585 (1977), vacated and remanded 436 U.S. 924 (1978) (Reece Shirley I). On rehearing, the Kansas Supreme Court analyzed Sears in Reece Shirley & Ron’s, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 592 P.2d 433 (1979) (Reece Shirley II). The Reece case was similar to Sears in that it involved peaceful trespassory picketing. This court interpreted Sears to mean:
“that the scope of jurisdiction of Kansas trial courts should be broadened in situations where union trespassory picketing has occurred and the union failed to file a complaint with the NLRB following a demand of the employer to stop the trespassory picketing. Where that is the situation, a Kansas district court may enjoin or limit trespassory picketing where the district court finds that no right of the union under the NLRA has been violated or will be interfered with.” Reece Shirley II, 225 Kan. at 476.
This court went further to explain the state court’s jurisdiction when the NLRB has become involved in a case.
“If, however, a union, after receiving from the employer or property owner a notice to cease picketing, files a complaint with the NLRB and the board takes jurisdiction, a Kansas district court has the power to enjoin trespassory picketing only where there is shown to be actual violence or a threat of immediate violence or some obstruction to the free use of property by the public that immediately threatens public health and safety or that denies to an employer or his customers reasonable ingress and egress to and from the employer’s place of business.” Reece Shirley II, 225 Kan. at 476.
Our task here is to apply this constantly developing law of preemption in labor matters to the case at bar. The appellants and intervenors contend the activity covered in the wage claims presented to the KDHR is not prohibited or protected under the NLRA, and thus, under the Garmon test, the State has jurisdiction over the wage issue. In support of this, the intervenors assert the cause they are pursuing is a different cause from the one presented to the NLRB. The issue presented to the NLRB as an unfair labor practice was that Whelan’s refused to pay striking workers their vacation pay in retaliation for the strike, while having paid such benefits to nonstriking employees. Such is a discriminatory practice prohibited by the NLRA. The NLRA provides: “It shall be an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment'to encourage or discourage membership in any labor organization . . . .” 29 U.S.C. § 158(a)(3). Whelan’s retaliatory action discriminated against labor union members. Under the NLRA, this is not allowed. The NLRA requires non-labor union members and labor union members to be treated equally in terms or conditions of employment. The employment term or condition involved before the NLRB was the refusal to pay striking employees the vacation pay which they had earned. Whelan’s settled the issue prior to hearing by agreeing to pay the striking workers the same vacation pay the non-strikers had received. Since there was no longer the discrimination between striking and non-striking employees, the NLRB stated the purposes of the NLRA had been carried out and approved the settlement. The amount of wage in the settlement was merely peripheral to the unfair labor practice issue.
This left one issue, unrelated to the NLRA, unresolved. All employees receiving vacation benefits after October 12, 1981, received their vacation pay at the current lower wage rate rather than the wage rate at which they had earned the benefit. The striking employees were part of the group taking their vacation pay after October 12. They requested the NLRB require Whelan’s to pay their vacation pay at the rate at which it was earned, the higher rate. The NLRB refused since the settlement agreement was consistent with the manner in which all employees, striking and non-striking, were paid vacation benefits. The NLRB found it was Whelan’s policy to pay vacation benefits when received rather than when earned, thus the payment of the benefit at the lower rate to the striking employees was not differential treatment of labor union members. The acting regional director of the NLRB stated in a letter dated January 15, 1982:
“As a result of the investigation, it does not appear that further proceedings . . . are warranted. The investigation disclosed that certain employees received vacation pay based on the Employer’s final wage proposal prior to impasse in negotiations and the ensuing strike resulting from tírese negotiations. The investigation further disclosed that the Employer’s past practice has been to pay vacation pay at the hourly rate being currently received by an employee at the time that the employee takes vacation. Based on these circumstances, I am refusing to issue a complaint [for violations of the NLRA].”
The regional director also communicated to the Union in a letter dated March 31,1982: “In view of the undertakings contained in the attached settlement agreement, it does not appear that it would effectuate the purposes of the National Labor Relations Act to institute further proceedings.” The fact that the benefits under state law might be required to be paid at the rate at which they were earned was irrelevant to the NLRB, since such an issue involved the application of state law and was thus not under the auspices of the NLRB. The board is precluded under federal law from resolving the wage issue. It is only empowered “to prevent any person from engaging in any unfair labor practice . . . affecting commerce.” 29 U.S.C. § 160(a). The wage issue is not an unfair labor practice since it does not involve discrimination between union and non-union employees.
The issues, although involving the same employees, are completely distinct. The unfair labor practice issue has been resolved by the settlement approved by the NLRB. The other issue involving what is a fair wage has not been resolved. Under the three-faceted test of Farmer v. Carpenters, 430 U.S. at 298, the state alone has jurisdiction over the wage issue. It is not protected under the NLRA, does not affect national labor policy and is of great local concern.
The first factor of the Farmer test has already been discussed. As indicated, the wage issue is not protected under the NLRA. See 29 U.S.C. § 160. The wage issue does not affect national labor policy since the state issue “can be adjudicated without regard to the merits of the underlying labor controversy.” 430 U.S. at 300. It is irrelevant to the KDHR if, in this case, the workers are labor union members. In fact, any other employee who received vacation benefits after October 12, 1981, regard less of union membership, is eligible to join in this action. The issue is merely whether Whelan’s long-standing policy of paying all employees vacation benefits at the wage rate in force at the time of receipt rather than when it was earned is permissible under the Kansas Wage Payment Act, K.S.A. 44-313 et seq. This has no effect on national labor policy. The final factor, whether the interest involved was “ ‘ “deeply rooted in local feeling and responsibility” ’ ”, is easily seen. 430 U.S. at 298. The great concern of this state with wage issues is evidenced by the existence of the wage payment act and the significant amount of litigation thereunder.
Finally, in applying the Farmer and Garmon cases to the instant case, the cautionary words of the United States Supreme Court in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 188, must be remembered:
“[T]he history of the labor pre-emption doctrine in this Court does not support an approach which sweeps away state-court jurisdiction ....
‘Our cases indicate . . . that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State’s interest is one that does not threaten undue interference with the federal regulatory scheme.’ [Citation omitted.]
Thus the Court has refused to. apply the Garmon guidelines in a literal, mechanical fashion.”
We, therefore, conclude the issues of the unfair labor practice and the question as to the proper wage to be paid are distinct issues. The first is preempted by the NLRA and was properly resolved by the NLRB-approved settlement. The latter is a state issue, with which the NLRA is not concerned. This issue has yet to be resolved. The KDHR has jurisdiction to determine whether Whelan’s policy of paying vacation benefits at the rate when received, as opposed to the rate when earned, is proper under the Kansas Wage Payment Act.
The judgment of the trial court is reversed and the injunction against the KDHR is dissolved. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action for breach of contract and for an accounting and dissolution of a corporation.
The appellant, William Goben, and the appellee, Bernard Barry, met in 1977 when both started working for National Crude, Inc. Barry worked for only two weeks but Goben continued his employment, during which time Goben and Barry kept in touch.
From his experience with National Crude, Goben concluded he could sell oil and gas drilling deals for himself as easily as for others. He discussed organizing his own oil company with Barry and two or three other persons. After a few meetings at a Wichita steakhouse, Goben and Barry agreed to enter into a joint venture to sell fractional working interests in oil and gas drilling ventures. According to the agreement, Goben would furnish customers and Barry would furnish the leases. Additionally, Goben was to recruit a sales force and be in charge of selling, while Barry was to manage office operations. They agreed the venture would be financed by sale of the fractional interests and profits and losses would be divided equally. Barry loaned their company $4122.48 as seed money to set up an office from which operations could be commenced.
Pursuant to the agreement, Barry rented an office and obtained the “Tillotson” lease. Because of Goben’s tax problems they decided to incorporate the business. Goben selected the name United Petroleum, Inc. (UPI). Barry did the paper work and incorporated the venture under Goben’s selected name. They prepared and printed a prospectus. Goben then started selling one thirty-second interests in the first well on the Tillotson lease for $1995 each, plus completion costs of $2295 per unit. They agreed twenty-eight units would be sold and the company would retain one-eighth for itself as a carried interest. Goben sold twenty-four of the twenty-eight units between March 1978 and May 15, 1978. Goben and Barry divided the commission of $200 per unit equally. The first well drilled was successful. Completion costs were collected and the venture prospered. By June 30, 1978, the balance in the company checking account was $101,785.79, having increased from only $14,858.97 two months earlier. On May 16, Barry was reimbursed the sum he loaned the company for temporary financing. Thereafter, the new business operated entirely on its earnings. By November, 1978, Goben and Barry had sold interests in their ninth oil well, seven having already been successfully drilled.
When the drilling on the Tillotson lease resulted in production, the sales force which Goben had recruited for the partnership started selling fractional interests in oil wells to be drilled on additional leases which Barry had obtained in the name of United Petroleum, Inc. Goben and Barry, in accordance with their agreement, continued to draw equally on a weekly basis which was initially set at $500 per week and then at $560 per week.
The company continued to prosper. In August of 1978, $100,000 was withdrawn from the checking account of the corporation and invested in a certificate of deposit. An additional $50,000 was withdrawn from checking and invested in another certificate of deposit just one month later. In October, two $100,000 certificates of deposit were purchased, leaving a checking account balance of $98,293.66.
On October 11, 1978, Barry, without Goben’s knowledge, drew $2000 instead of $560 for his weekly pay. Thereafter, he continued to pay himself weekly draws of $1700. About the same time, Goben became aware of a tension developing between himself and Barry. From their actions, Goben suspected Barry and the sales manager Goben had recruited were scheming to cut Goben out of his interest in the company. Late in November, to investigate the status of the company, Goben asked Barry to see the check register. Barry appeared to be insulted, saying, “I guess this will always stick in my craw.” A discussion ensued about dividing the company, but the two separated without coming to a decision.
On the Monday following Thanksgiving, Goben called Barry’s home and told Mrs. Barry he would not be in the office that morning. Later Barry called Goben and said, “I have talked to my attorney, the attorney tells me you don’t have a leg to stand on ... I will give you $10,000 (for his interest in the company).” Goben replied, “Look, Barry, don’t give me ultimatums,” and Barry responded, “All right, you’ll get nothing.”
Barry took Goben’s personal belongings from the office to a storage company. The following Wednesday, Barry took possession of a 1977 Monte Carlo automobile which had been purchased by the company for Goben’s use.
Drilling was continued on various wells and other interests continued to pay into the venture. Some twenty additional producing wells were drilled after November, 1978.
Goben filed the present action on December 21, 1978. Barry denied the joint venture existed and Goben’s ownership in the company. In the meantime, the venture was doing so well that toward the end of the fiscal year, February 28, 1979, the accountant for United Petroleum, Inc., advised larger salaries be paid to the corporate officers because the income appeared to be out of proportion to the salaries. The officers of the corporation were Barry, his wife and his son. The accountant testified this recommendation was made from a tax standpoint.
The records for United Petroleum Inc., show salaries paid to Barry and his wife in 1979 were $84,675; in 1980 they were $108,800; in 1981 they were $157,600; and in 1982 they were $146,500.
On August 12, 1980, Barry purported to transfer to his wife one-half of the total issued stock of United Petroleum, Inc.
After a lengthy trial, the trial court entered judgment for Goben finding generally that a joint venture existed which Goben and Barry were to share in equally. After an accounting of the business, judgment was granted in favor of Goben for half the profits of the company from its inception until November 28, 1978. Additionally, Goben was granted profits from the wells which were producing before November 1978. Punitive damages were awarded against Barry in the amount of $82,237. The total judgments were therefore $110,827.06 against Barry and United Petroleum, Inc., and $82,237 against Barry personally. Goben, the plaintiff, now brings this appeal and Barry cross-appeals.
The initial issue is whether there was sufficient evidence to support the trial court’s finding of a joint venture. A joint venture is defined as:
“ ‘an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skill and knowledge, without creating a partnership or a corporation, pursuant to an agreement that there shall be a community of interest among them as to the purpose of the undertaking, and that each joint venturer shall stand in the relation of principal, as well as agent, as to each of the other co-venturers, with an equal right of control of the means employed to carry out the common purpose of the venture . . . .’ ” Neighbors Construction Co., Inc. v. Seal-Wells Construction Co., Inc., 219 Kan. 382, 385, 548 P.2d 491 (1976), quoting 46 Am. Jur. 2d, Joint Ventures § 1, pp. 21-22.
We further discussed the ingredients of a joint venture in Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 363, 388 P.2d 824 (1964):
“It is unnecessary to define precisely the term joint adventure,’ but suffice it to say it is an association of two or more persons to carry out a single business enterprise for profit. [Citations omitted.] A joint adventure can exist only by the agreement of the parties. [Citation omitted.] The agreement maybe found in the mutual acts and conduct of the parties. [Citations omitted.] While courts do not treat joint adventure in all respects as identical with a partnership, it is so similar in its nature and in the contractual relations created thereby that the rights and liabilities as between the adventurers are governed practically by the same rules that govern partnerships. [Citations omitted.] The usual test of a partnership as between the parties to a joint adventure is their intent to become partners. Joint ownership of property is not essential to create the relationship; it is only a circumstance which should be considered with other circumstances.”
After examining these cases we held in Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 76, 596 P.2d 816 (1979):
“In sum, the cases indicate that a joint venture is an association of two or more persons or corporations to carry out a single business enterprise for profit; it may be found in the mutual acts and conduct of the parties. Among the acts or conduct which is indicative of a joint venture, but no single one of which is controlling in the determination, are: (1) the joint ownership and control of property; (2) the sharing of expenses, profits and losses, and having and exercising some voice in determining the division of the net earnings; (3) a community of control over and active participation in the management and direction of the business enterprise; (4) the intention of the parties, express or implied; and (5) the fixing of salaries by joint agreement. The following acts or conduct have also been mentioned as being helpful, but one authority does not consider them so; (a) investment in the business of undistributed profits for the purpose of building up a substantial cash reserve; (b) the charging of losses against accumulated profits; and (c) division of undistributed profits in the event of liquidation contingent upon repayment to one of the parties of cash originally invested in capital.”
Here, there was evidence of joint control of the property, according to the joint venture agreement. There was also evidence the agreement provided for a sharing of profits equally between Goben and Barry. They also agreed to divide the sales commissions equally as separate items from their weekly salaries. There was active participation by both Goben and Barry in the company. Barry controlled the management and drilling end while Goben supervised and participated with the sales force. The intention of the parties may be implied from their common reference to each other as partners without objection by the other. Salaries were fixed by the joint venture agreement to be $500 per week, which was later changed to $560. Barry later drew a larger amount, but this was without Goben’s knowledge or consent. There was also investment in the business of undistributed profits for the purpose of building up a substantial cash reserve in order to make the business a successful ongoing concern.
According to the definition and factors to be considered in establishing a joint venture, we hold there was substantial evidence to support the trial court’s finding of a joint venture in this case.
Cross-appellant, United Petroleum, Inc., argues if there was a joint venture agreement, it was illegal and unenforceable, since its intent was to avoid Goben’s personal income tax liabilities. “It is elementary law that a contract obligating the parties ... to violate a penal statute is unenforceable and void; and the breach of such contract is damnum, absque injuria - a matter for which the law provides no redress.” Roddy v. Hill Packing Co., 156 Kan. 706, 715, 137 P.2d 215 (1943). In support of Barry’s argument concerning the illegality of the joint venture agreement Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. 201 (1894), is cited. Sheldon involved an individual who transferred a note to his father in order to avoid paying taxes on the note. This court held the transfer was unenforceable since avoiding a tax obligation was its sole purpose. Such is not the case here. While it is true Goben owed a substantial amount of back taxes, the joint venture was not entered into to avoid this tax liability. Rather, the purpose of the joint venture was to explore for oil and gas and to produce it if discovered. The corporation was conceived as a way to protect the outside investors from Goben’s tax obligations. Goben was open about his tax problems, which prevented his associates from suffering as a result. The devious practices utilized to hide Goben’s assets are not at issue since such practices were not the purpose of the joint venture.
Barry next argues Goben must be denied recovery because he came to court with “unclean hands.” This fundamental maxim of equity “signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent and deceitful as to the controversy in issue.” 27 Am. Jur. 2d, Equity § 136, p. 667. Equity will not permit a litigant to rely on his own wrongful conduct to recover. Such is not the case here. The dishonest act Barry asserts should deny Goben recovery is Goben’s substantial unpaid taxes. The issues in controversy, whether there was a joint venture and a breach of fiduciary duties, are totally unrelated to Goben’s tax liability. Furthermore, Goben is not relying on tax avoidance to effect recovery. A case illustrative of the need for the “unclean act” to be related to the suit is Lawrence v. M. E. R. Co. et al., 126 N.Y. 483, 27 N.E. 765 (1891). In that case the New York court held a defendant in a suit based upon injury to real estate could not use the unclean hands doctrine merely because the plaintiff s tenants maintained a house of prostitution on the premises. While Goben’s acts may be wrongful, they have no connection to this case.
There is another doctrine closely related to “clean hands.” It is the principle of “in pari delicto.” It requires when “the wrong of the one party equals that of the other, the defendant is in the stronger position.” 27 Am. Jur. 2d, Equity § 141, p. 676. This requires the court to weigh the wrongful acts of each party. The purpose is to avoid allowing an overwhelmingly offensive act of the defendant to stand merely because the plaintiffs conduct was also wrongful, although slight.
In the instant case, Goben, while practicing some questionable acts of tax avoidance, was negotiating with the government to meet his obligations. Barry, however, purposefully and wrongfully ousted his partner from their joint venture and refused to account for the profits contrary to his fiduciary duty as later discussed. The motive was solely monetary gain. Barry sought to benefit substantially from this conduct. It cannot be said Goben’s wrongful conduct outweighed Barry’s.
We hold the joint venture agreement between the parties was not voided or rendered unenforceable because of an unlawful purpose or under the “clean hands” doctrine. This issue is without merit.
Barry also argued there can be no recovery on the joint venture contract because it was oral and thus in violation of the Statute of Frauds. The law in Kansas is well settled. The Statute of Frauds is inapplicable to an oral partnership agreement to engage in the business of procuring oil and gas leases despite the fact the Statute of Frauds applies to the leases themselves. See Potucek v. Blair, 176 Kan. 263, Syl. ¶ 4, 270 P.2d 240 (1954), and Bird v. Wilcox, 104 Kan. 799, 180 Pac. 774 (1919). Therefore, while the lease arrangement must be written, the contract to enter into a partnership to procure leases need not be.
Barry alleges the trial court erred in finding he owed a fiduciary duty to Goben. Joint venturers owe the same fiduciary duty to each other as do partners. See Martin v. Hunter, 179 Kan. 578, 297 P.2d 153 (1956). Since Barry and Goben participated in a joint venture together, Barry owed Goben “full, fair, open and honest disclosure of everything affecting the relationship.” 179 Kan. 579, Syl. ¶ 4. Barry’s payment to himself of a larger than agreed-upon salary, refusing to account and ousting Goben are examples of his breach of duty.
Barry argues the evidence does not support a finding of fraud and, therefore, the trial court erred in awarding punitive damages. Punitive damages may be awarded in the trial court’s discretion whenever there is proof of fraud. See Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 643 P.2d 100 (1982). Fraud itself is difficult to define, but it has been held fraud “ ‘in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another . . . .’ “ 231 Kan. at 64. Barry concealed his withdrawals, denied Goben had any interest in the company and ousted him, all to Goben’s damage. That is sufficient evidence of fraud. The trial court did not err in awarding punitive damages.
The final issue is that raised by Goben. He argues the trial court erred in finding Barry properly ended the joint venture in November, 1978, and thereby allowed damages only to that date. Barry argues the trial court did not err since a joint venture may be unilaterally terminated at any time. For support of this Barry cites Evans v. Aylward, 166 Kan. 306, 201 P.2d 1044 (1949). The facts in Evans are quite similar to those in the instant case. Evans involved two individuals who formed a business to salvage oil properties. One person provided the expertise and the other provided financial support. The partnership agreement, which was written, allowed either individual to withdraw from the venture after giving ten days’ notice. One of the joint venturers acted on this clause and terminated his interest. Instead of making an accounting, however, to determine each individual’s fifty percent share of the business, they made a monetary settlement. In reviewing the action of the venturers, this court stated at page 311:
“The next ground pleaded by plaintiff to set aside this release is that defendant in violation of his contract refused to continue the oral agreement, refused to make division of the profits or any further advancements to plaintiff and insisted that plaintiff execute to him an assignment of all interest in the property owned by the partners. Plaintiff testified to these facts and for the purposes of this record they must be taken as true. They amount to nothing more, however, than a statement that defendant had decided to take advantage of the clause in the written contract to discontinue the relationship at ten days’ notice. Naturally if he decided to discontinue the partnership he would cease paying plaintiff the $300 a month from his own assets. What plaintiff would draw from the partnership assets would be a matter of an accounting between the parties unless, as done here, they agreed on a settlement. To hold otherwise would be to hold that once a party had entered into such an arrangement of this kind he could never withdraw from it. Such is not the law regardless of the ten-day clause.”
In the present case the parties did not agree on a settlement, thus according to Barry’s own argument Goben was entitled to an accounting and division of property. The question, however, is whether in the absence of the accounting and division of the joint venture property the termination of the joint venture is void. While respecting the authorities that a joint venture may be terminated by either party, we hold such termination, to be effective, requires an accounting and division of property. Here, Barry failed to account or divide the property. The termination is therefore void and Goben is entitled to his share of the profits until the termination is properly effected.
Goben next argues the joint venture agreement made him the equitable owner of one-half interest in the corporation, and as such he is entitled to the benefits of K.S.A. 17-6804(d) which provides a dissolution procedure for corporations having two equal stockholders.
The trial court found the joint venture agreement did provide for Goben and Barry to share equally in the business, stating:
“Goben and Barry’s relationship is that of equal partners. The joint adventure did not merge in the corporation because it was the agreement of the parties that the adventure continue through the corporation.”
There is Kansas authority for a joint venture agreement to control the percentage of ownership in a corporation, despite one partner owning more stock than another. See Campbell v. Campbell, 198 Kan. 181, 422 P.2d 932 (1967). In Campbell, two brothers entered into a joint venture to manufacture and sell certain items on which they had a patent. A corporation was subsequently formed with the brothers as equal shareholders and the patent was assigned to the corporation. The defendant began secretly buying outstanding minority interests in the corporation, and ousted the plaintiff who then brought suit alleging breach of the joint agreement under which the brothers had agreed to split profits and control equally. The trial judge in that case made the following finding: “ T construe the testimony . . . sufficient to show the existence of an agreement and an understanding that the two brothers . . . would continue with a partnership-like arrangement between them after incorporation and that they would continue to participate and control the affairs of the corporation on an equal basis.’ ” 198 Kan. at 186. In agreeing with the trial court this court held:
“There is ample evidence to support the trial court’s finding that at the time pertinent hereto the plaintiff and defendant had an agreement that they would share equally in the fruits of the patent which was represented by the stock in the corporation. We approve the court’s judgment which was generally for the plaintiff and against the defendant.” 198 Kan. at 191.
In Campbell, the plaintiff actually held some stock, although not fifty percent. In the instant case, Goben has no stock in his name; however, following Campbell we hold the agreement, not the actual stock, controls the partners’ shares in the corporation.
We conclude Goben is entitled to a judgment for one-half the assets and net profits of the joint venture from the beginning. The joint venture assets include all the corporate assets of United Petroleum, Inc. We also conclude Goben is entitled to prejudgment interest on his share of the joint venture distributions to Barry and his family. The judgment shall constitute a lien on the shares of common stock and assets of United Petroleum, Inc. The division of the corporate assets shall be accomplished by a dissolution of United Petroleum, Inc., pursuant to K.S.A. 17-6804(d).
We affirm the trial court’s finding of a joint venture and the award of punitive damages. We modify the award of compensatory damages to include one-half the joint venture net profits from the beginning thereof and one-half the joint venture assets, and remand this case to the district court with directions to dissolve United Petroleum, Inc., and divide its assets equally between Goben and Barry. The district court is further directed to determine the net profit of the joint venture from its beginning and the amount of prejudgment interest on one-half of all distributions made by United Petroleum, Inc., or the joint venture to Bernard Barry, his wife and son in excess of the distributions made to William Goben, except Marilyn J. Barry shall be allowed a reasonable wage for her services to the joint venture. The district court is further directed to enter judgment in favor of William Goben against Bernard Barry and United Petroleum, Inc., in accordance with the views herein expressed.
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The opinion of the court was delivered by
Prager, J.:
This is an original action in mandamus, filed in the Supreme Court, in which the petitioner/plaintiff, Board of County Commissioners of Sedgwick County (Board), seeks a writ of mandamus directing the respondent/defendant, Dorothy I. Van Arsdale, Clerk of the District Court of Sedgwick County, to remit all fines received for violations of Sedgwick County home rule resolutions to the county treasurer for deposit in the county general fund. Plaintiff also seeks a writ directing the Honorable James J. Noone, Administrative Judge of the Eighteenth Judicial District, to permit the clerk to remit such fines.
The parties agree that the facts are undisputed and are as set forth in the plaintiffs petition: On August 15, 1983, the plaintiff Board passed county resolution #211-1983, pursuant to the home rule authority granted Sedgwick County by K.S.A. 19-101 et seq. That resolution provides for certain traffic regulations applicable to the unincorporated area of Sedgwick County and makes violations of those regulations punishable by fine and/or imprisonment consistent with similar violations under state laws. Section XXVI of the resolution provides as follows:
“Section XXVI: Fines and Court Costs
“The Clerk of the District Court of the Eighteenth Judicial District shall pay over to the Sedgwick County Treasurer all moneys collected as a fine for violations of this resolution. Such money shall be deposited in the general fund of Sedgwick County, Kansas. The Clerk of the District Court shall distribute court costs collected for violations of this resolution in the same manner as such costs are distributed for misdemeanor violations under state law.”
Subsequent to its adoption, a copy of resolution #211-1983 was provided to defendant, Judge James J. Noone. Judge Noone initially took the position and advised the Board that he would direct Dorothy I. Van Arsdale, as clerk, to remit fines derived from the enforcement of county resolutions to the state treasurer where the underlying county offense duplicates state traffic laws. At that time, Judge Noone further advised the Board that Sedgwick County would receive fines derived from the enforcement of a county resolution where the underlying county offense did not duplicate state traffic laws. After the defendants retained the attorney general as counsel in this case, they took the position that there is no statutory authority under which the clerk of the district court may pay to the county treasurer any moneys collected by the clerk’s office for the enforcement of county regulations adopted pursuant to home rule authority, whether or not the county offense duplicates the state traffic laws.
In its petition, the plaintiff Board alleged that the position taken by the defendants effectively nullifies Section XXVI of county resolution #211-1983. The plaintiff stated that it relied upon the projected traffic fines to be derived from #211-1983 in setting its budget for fiscal year 1984. It further alleged that, without this revenue, eleven traffic officer positions of the Sedgwick County sheriffs office will have to be eliminated, since no other source of revenue is available, with the result that enforcement of all traffic regulations in Sedgwick County will suffer. The plaintiff brought this action to obtain an authoritative interpretation of the state law for the guidance of public officials in their administration of public business. In its petition, plaintiff prays that the Supreme Court accept and exercise original jurisdiction in this proceeding and issue a writ of mandamus. The defendants, in their response to the petition, requested that the petition for a writ of mandamus be denied, because there is no statutory authority under which the clerk of the district court may pay to the county treasurer funds collected by the clerk’s office for the enforcement of county traffic regulations.
At the outset, we must first determine the jurisdictional question whether this is an appropriate case for an original action in mandamus in the' Supreme Court. Both parties agree that the court has jurisdiction, that the case is appropriate, and that the issue presented should be determined on its merits. We have no hesitancy in holding that this is an appropriate case for an original action in mandamus in this court. The purpose of this proceeding is obviously to obtain an authoritative interpretation of statutory law for the guidance of clerks of the district court, as public officers, in carrying out their public duties. All parties to this proceeding are public agencies or officers. The issue presented is purely one of law involving the distribution of public funds. The defendant, clerk of the district court, has a legal duty to remit fines derived from traffic violations either to the county treasurer pursuant to Section XXVI of the resolution or to remit such fines to the state treasurer. Judge Noone, as administrative judge, has a duty to supervise the clerk of the district court to insure that all fines are remitted as required by law. It is clear that the duty of the clerk as to the disposition of fines is mandated by law and does not involve the exercise of discretion.
The rule is well established in this state that mandamus in the Supreme Court is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact there also exists an adequate remedy at law. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982); Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980); Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P.2d 982 (1968). This court has often exercised its original jurisdiction in mandamus to provide a speedy adjudication of issues of law affecting public officials. We further believe the issue presented has a significant statewide interest. A decision in this proceeding will affect the distribution of moneys collected as fines for violations of county resolutions in all Kansas counties. Under the circumstances, it is clear that the Supreme Court has jurisdiction in mandamus and that this case is appropriate for the exercise of that jurisdiction.
The basic issue presented in the case is essentially this: Is there statutory authority which requires the Clerk of the District Court of the Eighteenth Judicial District to pay to the Sedgwick County Treasurer moneys collected by the clerk’s office as fines, resulting from the enforcement of county traffic regulations adopted by Sedgwick County pursuant to its statutory home rule authority? before turning to the specific question, it would be helpful to review the Kansas statutes which the parties have cited as - applicable to the present controversy. The general provisions which govern the home rule powers of counties are contained in K.S.A. 19-101 et seq. K.S.A. 19-101 covers the general powers which are granted by statute to a county as a public corporation. Among others, a county is authorized to exercise the home rule powers to determine their local affairs in government provided for in K.S.A. 1983 Supp. 19-101a. K.S.A. 1983 Supp. 19-101a provides that the board of county commissioners may transact all county business and perform such powers of local legislation and administration it deems appropriate, subject only to certain limitations, restrictions or prohibitions. Among the limitations, restrictions, and prohibitions mentioned are provisions that counties shall be subject to all acts of the legislature which apply uniformly to all counties, and that counties may not affect the courts located therein. Of the seventeen specific limitations on the home rule powers of counties, only these two would seem to be applicable in the case now before us.
K.S.A. 19-101c provides, in substance, that a county’s home rule powers shall be liberally construed for the purpose of giving to counties the largest measure of self-government. K.S.A. 19-lOld grants the power to a county board to enforce all resolutions passed pursuant to county home rule powers, either by injunc tion or by prescribing penalties for violations by fines or by confinement in the county jail. Prosecutions for any violations shall be commenced and determined in the district court in the manner provided by law for the prosecution of misdemeanor violations of state law.
The controversy in this case arose primarily because of a 1982 amendment to K.S.A. 19-101e. That section, as originally enacted in 1976, provided as follows in K.S.A. 1976 Supp. 19-101e:
“(a) Except as provided in subsection (b), the items allowable as costs shall be the same as in cases for misdemeanor violations of state law and shall be taxed as provided in K.S.A. 22-3801 and 22-3803, inclusive.
“(b) The fees and mileage for the attendance of witnesses shall be borne by the party calling the witness, except that if an accused person is found not guilty, the county shall pay all such expenses, but the court may direct that fees and mileage of witnesses subpoenaed by the accused person be charged against such person, if the court finds that there has been an abuse of the use of subpoenas by the accused person.
“(c) All fines and penalties collected in actions for the enforcement of county resolutions, as provided in this act, shall be paid over to the county treasurer of the county where they are imposed. Those fines and penalties derived from the enforcement of any resolution, a violation of which would also constitute a violation of state law, shall be remitted to the state treasurer as provided in K.S.A. 1976 Supp. 20-2801, and the remainder shall be deposited in the county general fund.”
In 1982, K.S.A. 19-101e was amended by striking section (c), thus removing from that statute the authority for the clerk to pay over to the county treasurer fines and penalties collected in actions for the enforcement of county resolutions as well as that portion of the section which directed that fines and penalties derived from the enforcement of any resolution which also constituted a violation of state law should be remitted to the state treasurer. Thus, it is clear that, prior to July 1, 1982, the Kansas legislature required that all fines collected in actions for the enforcement of county resolutions be separated into two categories:
(1) Fines collected for the enforcement of county resolutions which would not also constitute a violation of state law were to be paid over to the county treasurer; and
(2) fines derived from the enforcement of county resolutions which also would have constituted a violation of state law were to be remitted to the state treasurer.
On the face of it, it would appear that the legislative elimination of section (c) in 1982 removed from that statute any authority for a clerk of the district court to remit fines collected for violations of county resolutions to the county treasurer.
There are other Kansas statutes which must also be considered in determining the legislative intent with respect to the disposition of fines collected by a clerk of the district court resulting from violations of county resolutions. K.S.A. 20-350(a) is another statute which covers the disposition of moneys received by the clerk from the payments of fines, penalties, and forfeitures. It provides in- part as follows:
“(a) Except for fines and penalties authorized to be paid to counties pursuant to K.S.A. 19-101e, all moneys received by the clerk of the district court from the payment of fines, penalties and forfeitures shall be remitted to the state treasurer, in the manner provided by K.S.A. 20-2801 and amendments thereto, and the state treasurer shall deposit the same in the state treasury to the credit of the state general fund.” (Emphasis supplied.)
It should be noted that this section is indeed comprehensive and is applicable to all moneys received by the clerk of the district court from the payment of fines, penalties, and forfeitures. All of such moneys received by the clerk shall be remitted to the state treasurer in the manner provided by K.S.A. 20-2801, except for fines and penalties authorized to be paid to counties pursuant to K.S.A. 1983 Supp. 19-101e. It is to be noted that the exception in K.S.A. 20-350(a) for “fines and penalties authorized to be paid to counties pursuant to K.S.A. 19-101e,”. was initially adopted in 1978. It has not been changed since that time.
K.S.A. 20-2801(a) also is concerned with the disposition of fines, penalties, and forfeitures and provides as follows:
“(a) At least monthly the clerk of the district court shall remit all moneys payable to the state treasurer from fines, penalties and forfeitures to the state treasurer, and the state treasurer shall deposit the same in the state treasury to the credit of the state general fund.” .
With these statutes in mind, we turn now to the question presented in this case.
In its brief, the plaintiff Board contends that, considering together these statutes as set forth above, all fines collected for violations of county home rule resolutions must be paid by the clerk of the district court to the county treasurer for deposit in the county general fund, if the county resolution so directs. Plaintiff maintains that the main issue to be determined in the case is the intent of the legislature when it deleted K.S.A. 19-101e(c) effective July 1, 1982. It argues that a consideration of the legislative history of the substitute for House Bill No. 2280, which later became Section 1, Chapter 116 of the Laws of 1982, mandates the conclusion that the 1982 Kansas legislature intended that counties be allowed to retain all home rule fines; that the primary purpose of the enactment was to raise district court docket fees and to permit counties to retain significant amounts of those fees; and that there is nothing in the legislative records to show that the amendment to K.S.A. 19-101e was even discussed in the legislative committee meetings. The Board further argues that the reason for the deletion of section (c) in K.S.A. 1983 Supp. 19-101e was to increase county revenues by allowing the counties to retain all fines for county resolution violations. It further maintains that the failure of the 1982 legislature to amend K.S.A. 20-350(c) lends credence to the plaintiff s interpretation of legislative intent. Any other construction renders the language in K.S.A. 20-350(a) superfluous. It is further argued that the deletion of subsection (c) of K.S.A. 19-101e must be considered in the context of 19-101c which requires a liberal construction of county home rule powers.
In its brief, the plaintiff Board concludes that Section XXVI of the county resolution, which directs the clerk of the district court to pay over to.the Sedgwick County treasurer all moneys collected as fines for violations of county resolutions, was within the home rule powers of the county, and that the clerk of the district court is required as a matter of law to follow that direction and to distribute all such fines to the Sedgwick County treasurer.
The attorney general, on behalf of the defendants, contends that the central issue in the case is whether there is any statutory authority whatsoever by which Sedgwick County can require the Clerk of the Eighteenth Judicial District, who is a state officer, to turn over moneys generated by county traffic resolutions to the county treasurer. He takes the position that no such statutory authority exists, and that, under the clear and unequivocal language of K.S.A. 20-350(a), K.S.A. 20-2801(a), and K.S.A. 1983 Supp. 19-101e, all moneys received by the clerk of the district court for the payment of fines, penalties, and forfeitures from any source shall be remitted to the state treasurer. In his brief, the attorney general emphasizes that the clerk of a district court is a ministerial officer and, as such, must deal with public moneys in the manner required by statute. Stated simply, the attorney general contends that the clerk of the district court and the administrative judge of a judicial district are bound by the clear and unequivocal provisions of the statutes to remit all fines, penalties, and forfeitures to the state treasurer, because there is no statutory authority provided in K.S.A. 1983 Supp. 19-101e to the contrary. The attorney general emphasizes the rule that legislative history or evidence as to how a statute evolved is not necessary or i-elevant where an act is clear on its face. State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, 740, 676 P.2d 134 (1984). Since the legislative scheme is clear on its face, there is simply no statutory authority for the clerk of the district court to pay over these fines to the county treasurer.
We have carefully considered the briefs and arguments of counsel and the various statutes which are set forth above. It cannot be denied that the clerk of the court is a ministerial officer and is bound by statutes in the performance of his or her official duties involving the handling of public moneys. Cook v. City of Topeka, 232 Kan. 334, 654 P.2d 953 (1982). Under K.S.A. 1983 Supp. 19-101a, the home rule powers of a county are derived from the legislature, not from the Kansas Constitution. They are subject to the specific statutory limitation and restriction that a county may not affect the courts located therein. A county, under its home rule powers, does not have the authority to control the official acts of a clerk of the district court. After a full consideration of the statutes involved, we have concluded that the attorney general is correct in his conclusion that the defendants, as Clerk of the District Court and Administrative Judge of the Eighteenth Judicial District, are bound by the statutory provisions discussed above and must remit the fines, penalties, and forfeitures generated by county traffic regulations to the state treasurer. K.S.A. 20-350(a) requires the clerk to remit all moneys received by the district court for the payment of fines, penalties, and forfeitures to the state treasurer, except for fines and penalties authorized to be paid to the county pursuant to K.S.A. 19-101e. K.S.A. 1983 Supp. 19-101e, in its present form, does not grant an exception for fines and penalties received by the clerk of the district court for violations of county resolutions. Hence, the defendant Van Arsdale, as Clerk of the District Court of the Eighteenth Judicial District, is required by statute to pay to the state treasurer all fines, penalties, and forfeitures including those received as a result of violations of Sedgwick County resolutions. It follows that Section XXVI of Sedgwick County resolution #211-1983 conflicts with the Kansas statutes and is invalid and unenforceable because it constitutes an attempt by the county to affect the courts located within the county, and because it is contrary to the statutory provisions which are discussed above.
The petition for a writ of mandamus is denied. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an action to determine how the burden of federal estate tax is to be borne between the two daughters of the decedent, who died testate. The district court ordered the taxes be apportioned upon the appraised value of the property received by each daughter.
The facts are not in dispute. Bryan Hawes died on January 29, 1981, and a petition for the probate of his will was filed soon after in Edwards County District Court. Specific real property was devised to the decedent’s widow and to his two daughters, Betty Jean and Bryana. Hawes’ will did not direct how the federal estate taxes were to be paid. The will contained only the general statement directing payment of lawful debts and funeral expenses. All parties agree that the widow’s share of the estate is exempted from taxation by the marital deduction of the federal estate tax.
The executor of the estate elected to pay federal estate taxes by installments. The executor paid the taxes from the residuary estate and other estate assets. The residuary estate was exhausted. Approximately $215,000.00 in federal estate taxes remains to be paid. The executor wrote in a letter to both daughters that their father, prior to his death, told him to assess the taxes according to the amount of property each daughter received. The executor calculated one daughter, Betty Jean Dittmer, appellant, received 58% of the decedent’s property left to the daughters, and Bryana Schmidt, appellee, the other daughter, received 42% of the property willed to the two daughters. He stated the taxes should be assessed between the two daughters on the basis of these percentages, including taxes already paid from the residuary estate.
Betty Jean Dittmer filed a motion in district court requesting that the district court judge determine how the federal estate taxes should be paid from the estate. Arguments were heard by the district court and briefs were filed by counsel for the two daughters. Bryana Schmidt agreed with the executor that the taxes should be paid proportionately from the two daughters’ shares of the estate. She would be responsible for 42% of the federal estate taxes. Betty Jean Dittmer argues the residuary estate should be used to pay the federal estate taxes until the residuary estate is exhausted, and then the tax burden should be borne equally by the two daughters, and that her share of the federal estate taxes should not be 58%. The district court decided the taxes should be paid proportionate to the residuary estate and specific bequest given by the father to the two daughters. Betty Jean Dittmer appeals from the district court’s decision.
The appellant argues K.S.A. 59-1405 does not control the apportionment of the federal estate tax burden upon Kansas estates. We agree. K.S.A. 59-1405 states:
“The property of a decedent, except as provided in K.S.A. 59-401 and 59-403, shall be liable for the payment of the decedent’s debts and other lawful demands against the estate. When a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose. Unless the will provides otherwise for the payment thereof, or unless the court shall otherwise determine pursuant to K.S.A. 59-1410 the property of the testator, subject to the payment of debts and other items, shall be applied to that purpose in the following order:
“(1) Personal property not disposed of by will;
“(2) real estate not disposed of by will;
“(3) personal property bequeathed to the residuary legatee;
“(4) real estate devised to the residuary devisee;
“(5) property not specifically bequeathed or devised;
“(6) property specifically bequeathed or devised.
“Demonstrative legacies shall be classed as specific legacies to the extent of the payment thereof from the fund or property out of which payment is to be made, and as general legacies upon failure or insufficiency of the fund or property out of which payment was to be made to the extent of such insufficiency. The property of each class shall be exhausted before resorting to that of the next class; and all of one class shall contribute ratably if all the property of that class is not required for the payment of such debts or other items.”
K.S.A. 59-1405 is the general statute which indicates the order of application of assets to the payment of debts of the decedent except where the will or the court determines otherwise. The federal estate tax is imposed on the transfer of the taxable estate of a decedent. 26 U.S.C. § 2001 (1982).
The United States Congress has made no attempt to apportion the burden of the estate tax. The federal law provides only that the tax shall be paid out of the estate as a whole, and that applicable state law shall govern how the tax burden shall be distributed among those who share in the estate. In re Estate of West, 203 Kan. 404, 406, 454 P.2d 462 (1969).
The decedent’s entire estate is liable for the payment of federal estate taxes. A number of states have specific statutes which provide for apportionment of the burden of the federal estate tax. Generally, those statutes cause each person receiving a distribution from the estate to pay that part of the tax due from the value of the property that person is to receive. Jackson v. Jackson, 217 Kan. 448, 450-51, 536 P.2d 1400 (1975). Kansas has not enacted a federal estate tax apportionment statute.
Where the will directs how the federal estate taxes should be paid or apportioned, the intent of the decedent is followed whenever possible. In the absence of anything to the contrary, the burden of the federal estate taxes falls upon the residuary estate rather than the specific bequest. In re Estate of West, 203 Kan. 404.
Appellant claims Hawes’ will is silent as to payment of the federal estate taxes. Hawes’ will consists of the original will executed May 27,1970, and four codicils, the last being executed September 18,1980. In the original will Hawes directs his lawful debts and funeral expenses be paid. Hawes, in the fourth codicil to the will, explains his attempt to “more nearly equal” Bryana’s share of his estate to that of Betty Jean’s. To “more nearly equal” each sisters’ share of his estate, Hawes “placed several certificates of deposit joint with myself and my daughter, Bryana.”
In a conversation with his attorney, now the executor of his estate, Hawes stated his desire that each daughter should pay the federal estate taxes according to the share of his estate she received. That desire appears nowhere in Hawes’ will.
In the trial court’s memorandum decision there are no findings of fact. The court merely determined it was Hawes’ desire that the federal estate taxes were to be paid proportionate to the share of the estate each daughter received.
It is a fundamental rule of testamentary construction that, whenever possible, the testamentary plan or scheme of the testator be upheld and given effect. The primary function of a court in the interpretation of a will is to ascertain the testator’s intent as derived from the four corners of the will. Extrinsic evidence of the testator’s intent may not be admitted to give unambiguous language of his will a different meaning. Evidence may be admitted to show the surrounding facts and circumstances at the time the will was executed. The evidence of the surrounding circumstances allows the court in construing the provisions of the will to place itself in the shoes of the testator at the time he made the will and best determine the purpose and intention he endeavored to convey by the language used. In re Estate of Laue, 225 Kan. 177, 589 P.2d 558 (1979).
We must first survey the will in its entirety to ascertain whether its language is so indefinite and uncertain as to require application of rules of judicial construction to determine its force and effect. There is no uncertainty or ambiguity regarding the payment of the federal estate taxes to be found in the language of Hawes’ will. The will is silent as to payment of the taxes. The language in the codicil manifests Hawes’ intent that his two daughters share more equally in his estate. The codicil attempts to equalize shares of the estate. The language in the codicil is clear and unambiguous. The testator intended to make the legacies of his two daughters “more nearly equal” but not precisely the same dollar value.
Neither the will nor the codicils contain instructions concerning the payment of the federal estate taxes. There is no evidence that Hawes’ conversation with the executor stating his intent that the federal estate taxes be paid proportionately by each daughter was spoken at the time the will or the codicils were executed. Where there is no provision in the will for the payment of the federal estate taxes, the court is without power or authority to create such a provision.
The will being silent, state law requires the burden of the federal estate taxes fall upon the residuary estate. The rule that the residuary estate must bear the federal estate tax burden was first adopted in Kansas in Central Trust Co. v. Burrow, 144 Kan. 79, 58 P.2d 469 (1936), and followed in subsequent cases. The property of the residuary estate shall be exhausted prior to resorting to property specifically bequeathed or devised. Where all the residuary property is not required for the payment of the federal estate taxes, then all receiving property from the residuary shall contribute ratably.
Here the residuary property of the estate was exhausted prior to the satisfaction of the federal estate taxes. Where the residuary property of the estate is exhausted for the payment of the federal estate taxes, there is no proportional contribution among the members of that class. The trial court’s attempt to prorate the contribution of the exhausted residuary property between the two sisters in proportion to each share of the estate was incorrect.
The absence of directions in the will concerning apportionment of federal estate taxes, and the exhaustion of the residuary estate in partially paying the taxes leaves the source of the remaining estate taxes in question. Unless restricted by the state constitution, our legislature has the right to declare public policy as to how the estate taxes are to be paid. The public policy for payment of the decedent’s debts and other lawful demands against the estate are contained in K.S.A. 59-1405 set forth earlier. The legislature has not declared public policy as to the payment of the federal estate taxes. Since our legislature has not spoken, the legal principles applied by this court in Spurrier v. First National Bank of Wichita, 207 Kan. 406, 485 P.2d 209 (1971), provide the answer to the question.
This court in Spurrier cited with approval cases utilizing an “equitable apportionment” rule. The rule was analyzed in Annot., Ultimate Burden of Estate Tax in Absence of Statute, Will, or Other Provision, 68 A.L.R.3d 714, 794-95:
“ ‘Equitable apportionment’ may mean different things under different circumstances. The words ‘equitable apportionment’ themselves in the present context describe an approach to the problem of estate tax burden rather than define what is done in the application of such approach. There may be a broad or a limited rule of equitable apportionment, or a total or partial apportionment.
“Underlying the principles of equitable apportionment is the proposition that the assets of a taxable estate which generate a part of the estate tax should ratably bear the burden of the tax to the extent of the tax generated by such assets. It logically follows that assets not includible in the taxable estate and which generate no part of the estate tax should not be burdened with the payment of any portion thereof.”
Utilizing “equitable apportionment” and past case law, three rules concerning the apportionment of federal estate tax may be stated:
1. The surviving spouse’s share of the estate, to the extent it qualifies for the marital deduction under federal estate tax law, may not be reduced by requiring it to bear any portion of estate tax liability. Jackson v. Jackson, 217 Kan. 448.
2. In the absence of anything in the will to the contrary, the burden of federal estate taxes falls on the residuary estate. Spurrier v. First National Bank of Wichita, 207 Kan. 406.
3. In the payment of federal estate taxes, after the residuary estate left in a decedent’s will is exhausted, the balance of the federal estate tax burden is payable out of the remaining property left by the decedent to the beneficiaries, equitably apportioned among the beneficiaries according to the value of the property each beneficiary receives.
After the residuary estate was exhausted, the trial court correctly prorated the federal estate tax burden between the two sisters according to each sister’s share of the remaining estate.
The appellant raises several other issues not considered by the trial court in the appeal. Points not raised before or presented to the trial court may not be raised for the first time on appeal. Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983).
Affirmed in part, reversed in part and remanded with directions to enter judgment in accordance with the opinion. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This case is before the court on a Petition for Review of the decision of the Court of Appeals found at 8 Kan. App. 2d 733, 667 P.2d 890 (1983). James L. Long (defendant-appellant) appealed from a jury verdict finding him guilty of robbery (K.S.A. 21-3426). The Court of Appeals reversed and ordered that the appellant be discharged, holding the force used by the appellant in leaving the premises where the alleged robbery took place was not sufficient to constitute a taking by force as required by K.S.A. 21-3426 to support a conviction for robbery, and theft (K.S.A. 21-3701) is not a lesser included offense of robbery. The State’s Petition for Review was granted by this court.
The facts established by the evidence were summarized in the Court of Appeals opinion as follows:
“Margo Wolf and her husband reside in rural Butler County, Kansas, and operate a dairy farm there. As a part of that business they maintain a small sale building in which they stock and refrigerate gallon bottles of milk. This building is open to the public. The Wolfs employ an ‘honor system’ in their business operation at the sale building. It includes the open display of refrigerated milk and a locked, slotted money box mounted on a wall. Customers may enter the sale building, obtain milk and deposit payment in the locked box, thereby eliminating the need for the Wolfs to be present at all times. On the evening of February 17,1981, Mrs. Wolf was in an adjacent milk barn filling gallon milk bottles in order to replenish the sale building’s supply which the day’s business had reduced to two bottles. While there, she observed a car drive up to the sale building. Seeing this, she went to the sale building to inform the customer that in a few minutes she would have more milk available. As she opened the door to the sale building, she observed the defendant crouched in front of the money box. It had been pried open. The defendant had his hands in his pockets. Mrs. Wolf saw a dollar bill lying on the floor beneath the forced money box. She positioned herself in the doorway so as to prevent the defendant from leaving the building. She twice asked the defendant what he was doing, to which he made no response. Instead, the defendant walked toward her, shoved her arm out of the way, forcing himself by her, and proceeded to drive away in his car. Mrs. Wolf noted down defendant’s license tag number. The money box had approximately $40 to $45 in currency in it prior to Mrs. Wolf s observation of defendant crouched near the box. Immediately after the incident there was nothing in the box except some small change. The defendant admitted that he ‘brushed by’ Mrs. Wolf as he exited the sale building.” 8 Kan. App. at 733-34.
In addition to the above facts, evidence was presented that shortly before the appellant’s arrival at the dairy Mrs. Wolf went into the sale building to check on the supply of milk. Apparently there was nothing unusual about the condition of the money box at that time. As the supply of milk was getting low, Mrs. Wolf went to another part of the dairy to obtain more. While there she observed a customer who was carrying a baby enter the sale building and leave in a very short length of time with a gallon of milk. When the appellant arrived Mrs. Wolf went to the sale building to inform him more milk would be available, at which time she observed him in front of the pried-open money box.
The appellant testified he went to the dairy to purchase milk as he had done on several previous occasions. When he entered the sale building he saw the money box had been pried open. He was just looking at it when Mrs. Wolf came in and became outraged. Panicking, he ducked under her arm held across the doorway and fled in his car. He denied taking any money from the dairy.
The appellant raised two points on appeal. He first argued the force used against Mrs. Wolf occurred after the taking to effect his escape and therefore was not sufficient to constitute a taking by force as required by K.S.A. 21-3426. Relying upon State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); and State v. Miller, 53 Kan. 324, 36 Pac. 75 (1894), the Court of Appeals concluded there was not a taking by force as required to support the appellant’s conviction for robbery, reasoning:
“In the case before us, we assume, for the purpose of our decision, defendant took money from the money box and his shoving of Mrs. Wolf out of his way when exiting the sale building constituted the use of force. However, the evidence wholly fails to support a conclusion that defendant’s use of force preceded or was contemporaneous to defendant’s acquisition of possession of money from the money box. The ‘taking,’ if it occurred, was accomplished and completed before Mrs. Wolf observed defendant. It neither was preceded by nor occurred contemporaneously .with defendant’s use of force. Defendant’s conviction for robbery must be reversed.” 8 Kan. App. 2d at 735.
A complete review of the cases relied upon by the Court of Appeals and other authorities addressing this issue is warranted in order to properly determine this issue.
The crime of robbery is defined in K.S.A. 21-3426, which provides:
“Robbery is 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.”
To establish the charge of robbery the State must prove there was a taking of the property from the person or presence of the victim and that such taking was either by threat of bodily harm or by force. State v. Aldershof, 220 Kan. at 800. In Aldershof, 220 Kan. at 803, this court held:
“[T]o constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property and robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape. We believe that the test should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant.”
This position is in accord with the general rule followed in most jurisdictions. See Annot., 58 A.L.R. 656; Annot., 93 A.L.R.3d 643; 2 Wharton’s Criminal Law and Procedure § 559 (1957).
The question then is whether the taking of the money from the money box was completed prior to the appellant’s exit from the sale building. No established set of guidelines exists which can be readily applied for a quick and easy answer to this question. The court in Aldershof stated “[t]his must of necessity be determined from the factual circumstances presented in the particular case before the court.” 220 Kan. at 803. The decisions of some states holding the force used was or was not prior to or contemporaneous with the taking are conflicting, however, because of uncertainty as to when the taking is completed. See Annot., 58 A.L.R. 656 § 3; 2 Wharton’s Criminal Law and Procedure § 559, p. 265; 67 Am. Jur. 2d, Robbery § 26.
Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed. Some of these cases imply a taking is not complete until the property has been removed from the premises of the owner, whereas others indicate the taking is accomplished at the moment the thief, with the intent to steal, removes the property from its customary location.
In Aldershof the defendant snatched two purses from a table in a tavern during a power failure. One of the victims pursued the defendant into the tavern parking lot where the defendant struck her. We held the defendant was a sneak thief and could not be guilty of robbery because “the taking of the property had been completed when the thief snatched the purses and left the premises of the tavern.” (Emphasis added.) Any violence used thereafter by the thief in an attempt to prevent the owner from regaining possession of the property could not convert the theft into a robbery. 220 Kan. at 803-04. However, in State v. Buggs, 219 Kan. at 206, this court rejected the defendant’s claim that the taking of the property had not been accomplished because the defendants were apprehended before leaving the owner’s premises. As the victim was leaving her place of business at the close of the day, she was ordered back into the store by two “armed” men, where she handed over her purse containing the day’s business receipts. The defendant and his accomplice were apprehended by police responding to a silent alarm before they left the store. We held:
“The completed crime of robbery is thus the ‘taking’ of property from the person by the proscribed meansfand ‘attempt’ to commit robbery occurs only when the taking is not accomplished. Here all the evidence is that the bank money bag was ‘taken’ from Mrs. Penner by Perry, and later removed by him to the restroom. There is no evidence to the contrary. The robbery was complete when Mrs. Penner handed over the bag, and there was no call for an instruction on an attempt.” (Emphasis added.) 219 Kan. at 206.
Other cases have similarly held the taking was complete prior to the time the defendant left the owner’s premises. In State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 (1972), it was noted by the court in dictum that the defendant had exerted sufficient control over the property to have been charged and convicted of the completed crime of theft where the defendant took a gun from a gun counter in a store and hid it in the pocket of his coat with the intent to steal it, but was apprehended by a sales clerk before leaving the store. It was held the crime of larceny had been completed in State v. Hill, 207 Kan. 714, 716-17, 486 P.2d 1398 (1971), where chain saws removed from the victim’s place of business were found outside the building on the store’s premises and on the premises across the street, but had been prevented from being hauled away by the defendant because of the arrest of his accomplice. The defendant’s claim that an instruction on attempted larceny should have been given was rejected in State v. Crowe, 196 Kan. 622, 625, 414 P.2d 50 (1966), where the defendant was caught in the act of stealing television sets from the victim’s warehouse. The defendant had succeeded in placing one television set in his car when his efforts were interrupted. The court stated:
“The fact that defendant’s possession of the property was brief or that he had not completely removed it from the owner’s premises prior to detection does not militate against the integrity of the offense.” 196 Kan. at 625.
See also State v. Hall, 111 Kan. 458, Syl. ¶ 1, 207 Pac. 773 (1922).
On the other hand, a robbery conviction was sustained in State v. Miller, 53 Kan. at 327, based upon the court’s finding the taking had not been completed when force was used against the victim. The victim had caught the defendant’s hand as the defendant grabbed a fistful of money from the victim’s money drawer. The defendant then cut the victim’s hand with a knife in order to get away. The court determined the defendant had not obtained complete possession of the money before using violence on the victim. The court aptly remarked:
“Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well be doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence.” (Emphasis added.) 53 Kan. at 328.
This language was reiterated in State v. Aldershof, 220 Kan. at 802.
As these cases demonstrate, inherent difficulties exist in determining when possession attaches to constitute a completed taking for a robbery conviction under K.S.A. 21-3426. Commission of the crime of robbery is complete when the robber takes possession of the property, as the element of asportation is no longer required to complete the crimes of theft or robbery. See, e.g., State v. Knowles, 209 Kan. at 678; State v. Aldershof, 220 Kan. at 804. The defendant takes possession of the property of another when he exercises dominion and control over the property. 4 Wharton’s Criminal Law § 472 (14th ed. 1981). Earlier cases have recognized the term “possession,” as it relates to theft or possession of stolen property, imports more than an innocent handling of property; the term denotes control, or the right to exercise control and dominion, over the property. State v. Knowles, 209 Kan. at 678; State v. Brown, 203 Kan. 884, 885-86, 457 P.2d 130 (1969). See also State v. Porter, 201 Kan. 778, 781, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969); State v. Phinis, 199 Kan. 472, 430 P.2d 251 (1967). 52A C.J.S., Larceny § 6, states:
“[I]n order to constitute a taking the prospective thief must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein ....
“If the possession of the would-be taker is imperfect in any degree, or if his control of the thing desired is qualified by any circumstance, however slight, the taking is incomplete and the act is only an attempt.”
Did the appellant in the instant case obtain and exercise complete control and dominion over the money removed from the Wolfs’ money box prior to the time the appellant was confronted by Mrs. Wolf and used force to flee from the sale building? Under the factual circumstances presented in this case we conclude he did not. Construed in the light most favorable to the prosecution, the facts presented at trial show Mrs. Wolf entered the sale building directly after the appellant had removed the money from the money box and at the precise moment he stuffed the money into his pockets. A dollar bill which, had apparently fallen from the appellant’s grasp lay below the money box at the appellant’s feet. Mrs. Wolf immediately barred the door to prevent the appellant from leaving and demanded to know what he was doing. In this posture, this case differs from State v. Miller only in the fact that here the appellant managed to place most of the money in his pocket before being confronted by the victim, whereas in Miller the defendant was stopped by the victim after he had grabbed the money from the drawer, but before he could secrete it on his person. Such a slight variance in the factual circumstances of these cases does not warrant a different result in the two cases.
In Miller the court expressed doubt as to whether a thief could obtain peaceable possession of money or other property where the taking is instantly resisted by the owner, before the thief is able to remove it from the premises or the owner’s immediate presence. The court in Aldershof emphasized the taking was complete when the thief left the premises of the tavern with the purse under his control. Based upon these cases and authorities cited we conclude a thief does not obtain the complete, independent and absolute possession and control of money or property adverse to the rights of the owner where the taking is immediately resisted by the owner before the thief can remove it from the premises or from the owner’s presence. Accordingly, in the instant case the appellant did not obtain actual possession of the money and the taking was not completed until the appellant by force overcame Mrs. Wolfs efforts to stop him from making his exit from the sales room. The result reached in State v. Buggs, 219 Kan. at 206, is readily distinguishable. There the defendant forcibly removed the victim’s purse from her immediate presence and exerted complete and absolute dominion and control over the purse. The taking was therefore complete, as the victim’s possession of the purse and its contents was severed by the defendant’s actual possession and control, although such control lasted only a short period of time before the defendant and his accomplice were apprehended by police. The issue there was whether the trial court should have instructed on attempted robbery.
The appellant contended the trial court erred in failing to instruct on the “lesser included” offense of theft. It is well established that K.S.A. 21-3107(3) requires the trial court to instruct on a lesser included offense when there is evidence introduced to support a conviction of the lesser offense. This duty arises, however, only when there is evidence upon which the accused might reasonably be convicted of the lesser offense. See, e.g., State v. Hutton, 232 Kan. 545, 552, 657 P.2d 567 (1983), and cases cited therein; State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1978). The Court of Appeals did not address the instruction issue, but held the appellant could not be tried on a charge of theft upon remand of this case because theft is not a lesser included offense of robbery.
The doctrine of lesser included offenses in this state has been codified in K.S.A. 21-3107, which provides in part:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
This court has repeatedly stated an offense is considered a lesser included offense under 21-3107(2)(d) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. See, e.g., State v. Mourning, 233 Kan. 678, 680, 664 P.2d 857 (1983); State v. Coberly, 233 Kan. 100, Syl. ¶ 3, 661 P.2d 383 (1983); State v. Warwick, 232 Kan. 232, 235, 654 P.2d 403 (1982); State v. Arnold, 223 Kan. 715, 716, 576 P.2d 651 (1978). If the lesser offense requires proof of an element not necessary in the greater, it is not a lesser included offense and the court should not give an instruction on the lesser offense. State v. Warwick, 232 Kan. at 235; State v. Daniels, 223 Kan. 266, 270, 573 P.2d 607 (1977).
This test has been strictly applied by this court. See, e.g., State v. Mourning, 233 Kan. 678 (reckless driving not a lesser included offense of driving under the influence of alcohol or drugs); State v. Warwick, 232 Kan. at 235 (aggravated battery and battery not lesser included offenses of aggravated robbery or robbery); State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979) (lewd and lascivious behavior not a lesser included offense of aggravated sodomy or indecent liberties with a child); State v. Newell, 226 Kan. 295, 597 P.2d 1104 (1979) (possession of heroin not a lesser included offense of possession of heroin with intent to sell); State v. Arnold, 223 Kan. 715 (battery not a lesser included offense of attempted rape); State v. Daniels, 223 Kan. 266 (aggravated battery not a lesser included offense of attempted murder); State v. Bailey, 223 Kan. 178, 573 P.2d 590 (1977) (aggravated assault not a lesser included offense of aggravated battery); State v. Hoskins, 222 Kan. 436, 565 P.2d 608 (1977) (carrying a concealed weapon and an aggravated weapons violation are not lesser included offenses of unlawful possession of a firearm); and State v. Schriner, 215 Kan. 86, 523 P.2d 703 (1974) (assault not a lesser included offense of kidnapping). In State v. Burnett, 4 Kan. App. 2d 412, 418, 607 P.2d 88 (1980), the Court of Appeals held unlawful deprivation of property (K.S.A. 21-3705) is not a lesser included offense of theft because the intent to temporarily deprive the owner of property required to prove the former offense is a distinct element from an intent to permanently deprive as required to prove theft.
The crime of theft is covered in K.S.A. 21-3701. Section (a) of this statute states in substance that theft is the obtaining or exerting of unauthorized control over property with intent to deprive the owner permanently of the possession, use or benefit of his property. Intent to permanently deprive is an element of theft under this statute. However, under our present robbery statute intent to permanently deprive is not an element of robbery. All that is required is an intentional taking of property from the person or presence of another by force or threat of bodily harm. See State v. Thompson, 221 Kan. 165, 174, 558 P.2d 1079 (1976); State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982); State v. Antwine, 4 Kan. App. 2d 389, 398, 607 P.2d 519 (1980).
It is clear that robbery and theft contain separate and distinct elements and therefore theft cannot accurately be termed a “lesser included” offense of robbery under the test stated by this court. Theft is a specific intent crime; robbery is not. However, theft, or larceny as it was formerly termed, did constitute a lesser included offense of robbery as defined under our former robbery statutes. The intent to permanently deprive was required to prove both offenses. In Guffey v. Casualty Co., 109 Kan. 61, Syl. ¶ 2, 197 Pac. 1098 (1921), it was held robbery as it was formerly defined, embraces the elements of larceny.
“Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive the owner of the property taken, not temporarily, but permanently.”
In State v. Thompson, 221 Kan. at 174-75, it was recognized that our present criminal code broadened the statutory crime of robbery by eliminating the requirement of a specific intent to permanently deprive the owner of the property.
This court has continued to hold theft to be a lesser included offense of robbery under the current criminal code, relying on cases decided prior to the change in the criminal code. See State v. Russell, 217 Kan. 481, 484, 536 P.2d 1392 (1975); State v. Aldershof 220 Kan. at 800. Other cases have recognized theft as a lesser included offense of robbery by implication. See State v. Colbert, 221 Kan. 203, 204, 557 P.2d 1235 (1976); State v. Huff, 220 Kan. 162, 167, 551 P.2d 880 (1976); Morrow v. State, 219 Kan. 442, 443, 444-45, 548 P.2d 727 (1976); State v. Harris, 215 Kan. 961, 529 P.2d 101 (1974). The inconsistency created by these holdings was recognized by the Court of Appeals in State v. Antwine, 4 Kan. App. 2d at 398-99:
“Although [State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976)], suggests that robbery and theft contain distinct elements, we believe our Supreme Court has determined that theft is a lesser included offense of robbery and we are duty bound to follow that determination. . . .
“. . . Of particular significance to us is that [State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976)] was filed by the Supreme Court on the same day as State v. Thompson, 221 Kan. 165, indicating that the Supreme Court apparently did not intend to depart from its previous line of cases holding theft to be a lesser included offense of robbery by reason of eliminating the requirement in robbery of a specific intent to deprive the owner permanently of his or her property.”
In the instant case the Court of Appeals declined to follow the decisions of this court holding theft is an included offense of robbery because it found those decisions were based upon prior cases predating the 1969 enactment of 21-3426 which eliminated the intent to permanently deprive as an element of robbery. 8 Kan. App. 2d at 736. The appellant’s conviction was reversed and the case remanded with directions to discharge the appellant. Under the test stated by this court to determine what constitutes lesser included offenses for the purpose of 21-3107(2)(d), the Court of Appeals was correct in its assessment that under our criminal code theft is not a “lesser included” offense of robbery because the specific intent element required to prove theft is not required to establish the elements of robbery.
Our inquiry does not end with this determination, however. In State v. Gregory, 218 Kan. 180, 182, 542 P.2d 1051 (1975), this court held that although involuntary manslaughter was not a “lesser included” crime of murder under clause (d) of K.S.A. 21-3107(2), it was a “lesser degree of the same crime” under clause (a) of the statute and thus was properly submitted to the jury as a lesser crime under 21-3107(3). In reaching this conclusion the court determined the phrase “the same crime” contained in clause (a) of 21-3107(2) referred to the generic crime of homicide. Following this reasoning the court in State v. Williams, 6 Kan. App. 2d 833, 835, 635 P.2d 1274 (1981), held involuntary manslaughter, although not a “lesser included” offense of voluntary manslaughter, is nonetheless an “included crime” under 21-3107(2)(a) as a lesser degree of the same crime. A similar result was reached in State v. Smith, 8 Kan. App. 2d 494, 660 P.2d 978 (1983), although different reasoning was applied. There the Court of Appeals held the defendant could not be convicted of both attempted first-degree murder and aggravated battery arising out of a single act of violence against the victim, although aggravated battery is not a lesser included offense of attempted murder. The court reasoned the only difference between the two offenses is the intent with which the act of shooting is committed. The intent to injure required for aggravated battery is merely a “lesser” intent than the intent to kill required for attempted murder, and therefore the defendant could not be convicted of both offenses.
The nature of the crime of robbery and its relationship to the crime of larceny or theft is discussed in 4 Wharton’s Criminal Law § 469 (14th ed. 1981):
“At common law, robbery consists of larceny plus two aggravating circumstances. A larceny is aggravated and becomes robbery when (1) the property is taken from the person or presence of another, and (2) the taking is accomplished by the use of force or threatened force (or, as sometimes stated, by putting the victim in fear of injury). Therefore, a defendant commits robbery when, with the intent permanently to deprive, he trespassorily takes and carries away the personal property of another from the latter’s person or presence by the use of force or threatened force. On this analysis, a robbery often, but not always, consists of a battery plus larceny or an assault plus larceny. By definition, then, robbery may be classified not only as an offense against property but also as an offense against the person.”
In 52A C.J.S., Larceny § 1(2), it is stated:
“Robbery and larceny are distinct crimes, although in a generic sense they are but different degrees of the same crime. The word ‘robbery’ describes a form of larceny, since robbery is merely an aggravated form of larceny or theft, the aggravation consisting in the use of actual or constructive violence against the person of the victim or the use of force or fear to accomplish the taking of property from the possessor. Thus, robbery may be briefly defined as a forcible larceny from the person. Larceny is an offense against the possession; robbery against the person. There may be larceny without robbery, but there can be no robbery without larceny, since robbery includes larceny; if the crime of robbery has been made out, no additional proof is required to establish the crime of larceny.” (Emphasis added.)
See also 67 Am. Jur. 2d, Robbery § 7; 50 Am. Jur. 2d, Larceny § 8. The relationship between the crimes of robbery and larceny has been discussed by this court in prior cases. See State v. Russell, 217 Kan. at 484; Guffey v. Casualty Co., 109 Kan. 61, Syl. ¶ 2.
It is doubtful that in broadening the statutory crime of robbery to include any taking of property from the person or presence of another the legislature intended to separate the crimes of theft and robbery into two distinct unrelated offenses. The Judicial Council comments following K.S.A. 21-3427, the aggravated robbery statute, indicate K.S.A. 21-3426 was intended to include the substance of the formerly defined crimes of first- and second-degree robbery under K.S.A. 21-527 and 21-528 (Corrick). The revision of the robbery statute, standing alone, does not indicate a legislative intent to remove robbery from its traditional role as an aggravated form of larceny or theft. One commentator advocates the use of a legislative intent test in determining whether offenses charged are multiplicitous or whether one is included in another. See 1 Wright, Federal Practice and Procedure: Criminal 2d § 142, pp. 476-78 (1982).
Based upon the foregoing analysis, we hold for the purposes of K.S.A. 21-3107(2)(c) theft is a “lesser degree of the same crime” which embraces robbery. The unlawful taking of the property of another is the gravamen of both offenses. Robbery is the greater of the two offenses as it is characterized as a “crime against persons” in our criminal code and carries a higher penalty. Robbery requires the additional elements that the taking be accomplished by force or threat of bodily harm from the person or presence of another. A criminal intent is inferred when these elements are present. Where, however, unauthorized control is exerted over the property of another without the use of force or threat of bodily harm against the victim, the intent with which the property was taken characterizes the crime and determines its degree of criminality. For example, if a defendant had the intent to only temporarily deprive the owner of the property he would be guilty of unlawful deprivation of property under K.S.A. 21-3705; whereas, if he intended to permanently deprive the owner of the property he would be guilty of theft.
Both the crimes of robbery and theft require criminal intent, the only differences being the degree of intent and the manner in which they are established. In a prosecution for theft the jury must find the defendant had the intent to permanently deprive the owner of the property as an element of the offense. The defendant’s intent can be and usually is inferred from the circumstantial evidence surrounding the taking. In a prosecution for robbery the necessary criminal intent is inferred where the other elements necessary to establish the crime are present. The specific intent to permanently deprive the owner of property required for theft is similar to the criminal intent inferred when the elements of robbery are present. Where the crime of theft is charged, however, the defendant’s specific intent in committing the crime must be affirmatively shown by the prosecution to distinguish the offense from other crimes involving the taking of property and to determine the degree of criminality in the defendant’s acts. For the purposes of K.S.A. 21-3107(2)(a) the crime of theft is an included crime of robbery as a “lesser degree of the same crime.”
Whether the appellant was entitled to an instruction on theft is a different question. The duty to instruct on lesser crimes of which the accused might be found guilty under the information or indictment arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. K.S.A. 21-3107(3); State v. Hutton, 232 Kan. at 552. In this case the appellant denied taking the money at all, although he admitted he “brushed by” Mrs. Wolf when he panicked and ran from the sale building. Based upon the evidence presented, the jury could either find the appellant did not take the money, in which event he would not be guilty of anything, or that he did take the money from the money box and used force to accomplish the taking, in which event he would be guilty as charged. This is not a situation where the defendant denies using force or threat of bodily harm to accomplish the taking. He denies that the money was actually taken by him. The appellant’s defense in this case was to challenge the identity of the perpetrator. The court has recognized in cases involving alibi defenses such a defense is insufficient, standing alone, to support an instruction on a lesser charge, where it does not refute the evidence establishing the elements of the crime. See State v. Hutton, 232 Kan. at 554-55; State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P.2d 1255 (1975). No evidence was presented by the appellant upon his theory of defense which would reasonably have supported his conviction of the lesser crime of theft, and therefore the trial court did not err in failing to instruct the jury on the crime of theft.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a trial court order holding a mortgage lien survives bankruptcy independent of the proceeding.
On November 17, 1978, Norman W. Weathers and Mordine Weathers, in consideration of a loan of $49,000, executed their note secured by a mortgage on their Olathe home to the Missouri Valley Investment Company. The mortgage, which was properly filed and recorded, was later assigned to the appellee, Polk County Federal Savings and Loan Association of Des Moines.
On March 10, 1980, the Weathers filed a petition for bankruptcy pursuant to 11 U.S.C. Ch. 7 in the United States Bankruptcy Court for the District of Kansas. In May of 1980, Norman Weathers signed a forebearance and reaffirmation agreement with appellee to avoid foreclosure. A discharge in bankruptcy was entered on September 8, 1980, pursuant to 11 U.S.C. § 727.
In May of 1981, Weathers was eight months in default under the forebearance and reaffirmation agreement. Polk County filed a petition for relief from the stay order under 11 U.S.C. § 362(d) to proceed with mortgage foreclosure against appellants’ prop erty. The bankruptcy court was asked to determine whether the in rem rights of the secured creditor survived discharge. In December 1981, the United States Bankruptcy Court ruled in favor of the appellee holding the secured interest survived. That ruling was appealed by the Weathers to the United States District Court.
Subsequent to the appeal, the bankruptcy court ordered the appellants to file a $5,000 supersedeas bond. Appellants did not file the bond. Appellee moved the Federal District Court for an involuntary dismissal of appeal for failure to file the bond. The motion was denied, but the court ruled there was no stay to prevent foreclosure.
Foreclosure was then commenced in the District Court of Johnson County. On December 23, 1982, the Johnson County District Court entered its order foreclosing the mortgage of the appellants and entered judgment in rem against the appellants.
On the 28th day of February, 1983, the property of appellants was sold at foreclosure sale.
The appellants initially argue the security interest of Polk County Federal Savings & Loan should be extinguished under the United States Bankruptcy Laws because of the Order of Discharge.
It has long been the law in Kansas that:
“While a discharge in bankruptcy under the Bankruptcy Act of 1898 will prevent the bankrupt from being personally liable on a dischargeable debt, the debt itself is not extinguished and a creditor holding a security interest in exempt property may look to that property for satisfaction of the debt.” Garnett State Savings Bank v. Tush, 232 Kan. 447, Syl. ¶ 6, 657 P.2d 508 (1983).
See also Commodore v. Armour & Co., 201 Kan. 412, 441 P.2d 815 (1968); Butler Bros. v. Twineham, 134 Kan. 547, 7 P.2d 531 (1932); Gillett & Co. v. McCarthy, 23 Kan. 668 (1880). The United States Supreme Court has also held a discharge in bankruptcy does not release the lien of a pre-bankruptcy mortgage on the debtor’s homestead. See Long v. Bullard, 117 U.S. 617, 29 L.Ed. 1004, 6 S.Ct. 917 (1886).
The appellee in this case sought solely to proceed in rem against the appellants. The sale of the property in question on February 28, 1983, was the only action by appellee to obtain satisfaction on its judgment. The appellee’s actions conform to Kansas and United States law. The appellants contend, however, the law was changed by the 1978 revisions to the bankruptcy act.
Under section 14(f) of the old bankruptcy code, the law concerning the survivability in rem as opposed to one in personam provided:
“An order of discharge shall —
“(1) Declare that any judgment theretofore or thereafter obtained in any other court is null and void as a determination of the personal liability of the bankrupt . . . .”
Section 524(a)(2) of the new bankruptcy code, revised in 1978, replaces section 14(f) and provides:
“A discharge in a case under this title . . .
“(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or off set any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived.” (Emphasis added.)
Appellants argue the addition of the term “property of the debtor” now precludes in rem actions on liens created prior to the debtor’s bankruptcy. Current case law and the legislative history behind section 524(a)(2) provide otherwise.
Several bankruptcy court decisions since the 1978 revisions indicate that valid liens on property continue after a discharge. See In re Honaker, 4 Bankr. 415 (Bankr. E.D. Mich. 1980) (liens passed through bankruptcy unaffected); In re Grimes, 6 Bankr. 943 (Bankr. D. Kan. 1980) (in rem lien on homestead continues after bankruptcy discharge); In the Matter of Coots, 4 Bankr. 281 (Bankr. S.D. Ohio 1980) (discharge is of debtor’s personal liability, the real estate itself remains subject to the mortgage). See also 3 Collier on Bankruptcy § 524.01, pp. 524-29 (15th ed. 1979).
The most persuasive authority on this point is our decision in Garnett which was decided after the 1978 revisions to the bankruptcy code but prior to its effective date. We stated:
“Thus it is clear that in Kansas, as in most if not all other states, while a discharge in bankruptcy will prevent the bankrupt from being personally liable on a dischargeable debt, the debt itself is not extinguished and a creditor holding a security interest in exempt property may look to that property for satisfaction of the debt.” Garnett State Savings Bank v. Tush, 232 Kan. at 456.
We conclude the trial court did not err in allowing the appellees to proceed in rem to foreclose the appellants’ mortgage.
The appellants next argue the state courts do not have juris diction to rule on the foreclosure until the appeal before the United States District Court is decided.
In December, 1981, after the appellants’ discharge, they asked the bankruptcy court to determine the in rem rights of the appellee. The appellants contended the lien was extinguished by the discharge. The appellee argued it survived the discharge. The United States Bankruptcy Court ruled in favor of the appellee. The appellants then appealed that decision to the United States District Court.
The bankruptcy court ordered the appellants to file a $5,000 supersedeas bond to stay proceedings pending the appeal. The bond was not filed, hence no stay. Appellee moved the district court to dismiss the appeal. Judge Rogers denied appellee’s motion, and ruled:
“Appellee argues that this holding means appellant will receive the benefit of a stay without filing a bond because no foreclosure sale may take place without a decision upon the appeal by this Court. We disagree. The general rule of appellate procedure made applicable to bankruptcy through Rule 805 is that the prevailing party may treat the judgment of the lower court as final if the losing party does not seek a stay of the judgment to protect its right to appeal. [Citation omitted.] Rule 805 protects the rights of good faith purchasers to rely on the ‘unstayed’ judgments of bankruptcy courts.”
See Universal Athletic Sales Co. v. American Gym, 480 F. Supp. 408, 422 (W.D. Pa. 1979).
The court below did not err in holding it had jurisdiction and granting judgment in the foreclosure action.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
Rheadis Osby Maxwell, Jr. appeals from his conviction by a jury of one count of aggravated burglary (K.S.A. 21-3716), two counts of aggravated robbery (K.S.A. 21-3427), and two counts of kidnapping (K.S.A. 21-3420). We affirm as to all counts.
Mr. Paul Clark, one of the victims, is an antique dealer in Kansas City. On the afternoon of December 27, 1981, Mrs. Clark answered the doorbell at their residence and found two men who wanted to talk with her husband ostensibly about a watch one of the men, later identified as defendant Maxwell, held in his hand. Mr. Clark indicated he would look at the watch and the two were admitted to the Clark home. The other man asked Mrs. Clark if he could use the bathroom and also asked for a drink of water. After he emerged from the bathroom Mrs. Clark showed him to the kitchen and then she retired to her bedroom. He followed her to the bedroom with a knife obtained from the kitchen. When Mrs. Clark screamed he told her to shut up or he would kill her. Mr. Clark, having heard his wife scream, demanded to know what was going on and Maxwell pulled out a knife, held it to Mr. Clark’s throat and replied, “This is a hold-up. If you scream or anything, I will kill you.” He then forced Mr. Clark to the bedroom where he and his cohort tied Mr. and Mrs. Clark to the bed. They then ransacked the house stealing money, jewelry, Mrs. Clark’s purse and numerous other items of personal property and then departed with a third person who had appeared during the robbery.
Early the next morning one Katherine Speed was arrested on an outstanding bench warrant and as a result of an altercation or skirmish she had with another woman earlier in the evening. When arrested Ms. Speed had in her possession Mrs. Clark’s stolen identification. She then advised police she had information about the Clark robbery and named the defendant as one of the participants. She also turned over to police a clock, camera and several other items later identified as having been stolen from the Clarks. She also advised the police that Maxwell would be in municipal court later that morning and that he was wearing a ring stolen from Mr. Clark. Maxwell was arrested and at the time was wearing the Clark ring which he claimed he had purchased on the street for ten dollars. At trial the defendant testified in his own behalf and asserted an alibi defense.
Appellant’s first point on appeal is that the trial court erroneously refused to grant a continuance necessary to secure the presence of a witness who would impeach Ms. Speed. Defendant testified that on the night of Ms. Speed’s arrest she had stated that she tried to kill someone but at trial Ms. Speed denied any such statement. One of the police reports pertaining to her arrest indicated she told Officer Griffin of the Kansas City police department that she had tried to kill the person with whom she had the altercation earlier in the evening. Officer Griffin was not called by the State and on the second morning of trial, defense counsel attempted to have a subpoena served on Officer Griffin but was unsuccessful. Later, after the completion of the defendant’s case, counsel asked for a continuance to try to locate Officer Griffin. The State opposed the motion pointing out that their files had been open to defense counsel, that defense counsel knew from the jury voir dire that Griffin would not be a witness and further that the area of questioning was a collateral issue and was not relevant or material to the case being tried. The court, having been advised that a subpoena had been issued early the morning of the second day of trial granted a continuance of fifteen to twenty minutes prior to conferring with counsel about the instructions. The defendant made no objection to the court’s ruling although it was raised in defendant’s motion for a new trial which was overruled.
Under K.S.A. 22-3401 a continuance may be granted either party for good cause shown. In State v. Thompson, 232 Kan. 364, 654 P.2d 453 (1982), we said:
“The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court’s discretion, the ruling of the trial court will not be disturbed on appeal.” 232 Kan. at 368.
In addition to the failure of the defendant to object to the trial court’s ruling, we find no abuse of discretion by the court.
Appellant next claims there was insufficient evidence to support the aggravated burglary conviction under K.SA. 21-3716 because the Clarks voluntarily allowed him into their home, thus consenting to the defendant’s entry. K.S.A. 21-3716 provides:
“Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.”
It appears to be a question of first impression in this State whether entry obtained by fraud, deceit, or pretense is an unauthorized entry sufficient to support a burglary or aggravated burglary conviction. Defendant points to decisions in other states holding that if a criminal defendant is in any manner voluntarily allowed to enter a private dwelling before committing crimes therein, even if the entry is gained under false pretenses, it is nonetheless “authorized” and will not support a burglary conviction. See People v. Peace, 88 Ill. App. 3d 1090, 411 N.E. 2d 334 (1980). On the other hand, in State v. Ortiz, 92 N.M. 166, 584 P.2d 1306 (App. 1978), cert. denied 92 N.M. 79 (1978), the New Mexico Court of Appeals held that where consent to enter is obtained by fraud, deceit or pretense, the entry is trespassory because it is based on an erroneous consent and therefore is similar to constructive breaking at common law and constitutes an unauthorized entry sufficient to sustain a burglary conviction.
Blackstone, in his early commentaries, stated:
“[T]o knock at the door, and upon opening it to rush in, with a felonious intent: or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking; for the law will not suffer itself to be trifled with by such evasions . . . .”4 Blackstone’s Commentaries on the Laws of England, p. 226 (Christian’s 15th Ed. 1809).
In 13 Am. Jur. 2d, Burglary § 13, we find:
“Constructive breaking within the law of burglary occurs where the entry is accomplished by means of fraud or threats, or by confederacy with servants residing in the house. This is so because the law regards force and fraud with equal abhorrence, and an invasion, for the purpose of stealing, of the tenant’s possession by one means or the other, is all one in the eyes of the law. It is also to be observed that the fraud included in a theft does not necessarily involve fraud in the entry, for where the owner gives an open license to all comers to enter, as in the case of a merchant, the fraudulent intent may be formed after a rightful entry.
“Where entry has been effected under pretense of having business with the owner or of paying a social visit, it has been well said that the law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act. But where the opening of the door is procured by a trick, the entry must be made so soon thereafter that there is no reasonable opportunity to refasten the door; otherwise there is not a sufficient breaking.” pp. 328-29.
In the present case the defendant and his cohort were allowed to enter the Clark residence for the sole purpose of speaking with Mr. Clark about the value of defendant’s watch. It is clear, however, that Maxwell and his friend intended to rob the Clarks at the time they entered the house and gained entry by subterfuge.
We hold that where the consent to enter any of the structures or vehicles listed in K.S.A. 21-3715 and 21-3716 is obtained by fraud, deceit or pretense the entry is not an authorized entry under the statute in that it is based on an erroneous or mistaken consent. Any such entry is unauthorized, and when accompanied by the requisite intent is sufficient to support a burglary or aggravated burglary conviction. Appellant’s argument lacks merit.
Appellant next contends the fourth amended information filed in this case is fatally defective for failing to specify what type of felony defendant was intending to commit at the time of his entry into the Clark residence. The aggravated burglary count of the amended information reads:
“COUNT III
“At the County of Wyandotte, State of Kansas, for a further, different and third count herein, on or about the 27th day of December, 1981, one Rheadis Osby Maxwell, Jr., and one Leon Herbert Caldwell did unlawfully, willfully, feloniously, knowingly and without authority enter into a building, to-wit: a residence located at 648 Seminary, Kansas City, Kansas, in which there was some human being, to-wit: Paul and Belva Clark with the intent to commit a felony therein, in violation of K.S.A. 21-3716.”
An identical question was before the court in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973). In Lora the burglary counts alleged simply that “the defendant did on a certain day ‘unlawfully, wilfully, knowingly, and without authority enter into and remain within a building . . . with the intent to commit a felony.’” 213 Kan. at 187. Lora claimed the information was fatally defective for failing to specify a particular felony, because without knowing what evidence the State would present it was impossible for him to disprove the element of intent to commit a felony. We held:
“An information charging burglary is defective in form unless it specifies the ulterior felony intended by an accused in making the unauthorized entry ....
“Such a defect does not, however, automatically result in prejudicial error. . . .
“If the ulterior felony intended in a burglary is made clear at the preliminary hearing or by the context of the other charge or charges in the information the failure to allege the specific intended felony does not constitute reversible error. Such failure cannot result in surprise or be considered prejudicial to the defendant’s substantial rights at trial when the intended felony was made clear in advance of trial.” 213 Kan. at 187-189.
In the present case the underlying felony was made clear to defendant before trial by both the context of the other charges in the information and the preliminary hearing. The aggravated burglary count in the fourth amended information, Count III, follows two counts of aggravated robbery under K.S.A. 21-3427 which arose out of the same set of operative facts, defendant’s entrance and actions in the Clark residence. In addition, a preliminary hearing at which the two victims testified was held on February 23, 1982, and defense counsel on appeal concedes “the preliminary hearing may have clarified what felonies the State was referring to. . . .” However, appellant argues that the court’s instructions compounded the error when the court in its instruction IV stated:
“The defendant is charged with the crime of Aggravated Burglary. The defendant pleads not guilty. To establish the charge of Aggravated Burglary, each of the following claims must be proved:
1. That the defendant knowingly entered into a residence at 648 Seminary, Kansas City, Kansas;
2. That the defendant did so without authority;
3. That the defendant had the intent to commit theft therein;
4. At the time, there were human beings, Paul Clark and Belva Clark, in said residence; and
5. That this act occurred on or about the 27th day of December, 1981, in Wyandotte County, Kansas.” (Emphasis added.)
It would appear obvious from the information and the evidence at the preliminary hearing that the specific felony should have been aggravated robbery. The instruction was not objected to by the defendant. In State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977), we held:
“When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is ‘clearly erroneous.’ An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.”
In view of the overwhelming evidence in this case we cannot say that there was any real possibility that the outcome of the trial would have been any different if the instruction had properly identified the intended felony.
Next appellant contends it was error to convict him of two kidnappings when he was only involved in the restraining and tying up of Mr. Clark. He apparently contends that as it was his partner in crime who tied up Mrs. Clark he should not be held responsible for that particular kidnapping. It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in the commission of an offense may be charged, tiled and convicted in the same manner as though he were a principal. State v. Payton, 229 Kan. 106, 622 P.2d 651 (1981). The argument lacks merit.
Appellant also contends that the movement and confinement of the Clarks was merely ancillary to the aggravated robberies rather than independent crimes of kidnapping. K.S.A. 21-3420 provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(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.
Kidnapping is a class B felony.” (Emphasis added.)
We have previously construed this statute as requiring no particular distance of removal, nor any particular time or. place of confinement. State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). In Buggs, we held:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be-slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection
It appears obvious that the Clarks were tied to their bed for the specific purposes of making commission of the robberies easier and facilitating the flight of the defendant. The point lacks merit.
Lastly, appellant claims that his physical lineup before the Clarks the day after the robberies was impermissibly suggestive in that the lineup only contained four individuals and should have contained at least six. The same argument was found to be without merit in State v. Estes, 216 Kan. 382, 532 P.2d 1283 (1975). Appellant contends that having less than six individuals in a lineup is a violation of the fundamental fairness doctrine under the Fourteenth Amendment and asks that we overrule Estes. We find no such violation and decline to overrule our holding in Estes.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal of a medical malpractice action instituted by Carol M. McGuire against Earl C. Sifers, M.D. and Sifers, Taylor and Hitchcock, M.D.’s, Chartered, a professional corporation. Count I claims damages suffered by McGuire (plaintiff). Count II claims damages for loss of consortium pursuant to K.S.A. 23-205. The case was tried before a jury in November, 1982. The jury returned a verdict for $600,000.00 in Count I and $82,000.00 in Count II. The trial judge reduced both Count I and Count II by the 35% fault attributed to the plaintiff by the jury. The final judgment totaled $443,300.00. The defendants appeal. Plaintiff cross-appeals. Insurance Commissioner Fletcher Bell, as Administrator of the Kansas Health Care Stabilization Fund (Fund), was permitted to intervene.
In January, 1976, McGuire was referred by her family physician to Dr. Sifers, a surgeon, for monitoring and observation of several lumps in her breast. McGuire’s condition was diagnosed as fibrocystic disease, a forming of cysts in the breast tissue. Biopsies were taken to aid in determining whether the cysts were harmless, premalignant or cancerous. To treat the fibrocystic disease, Dr. Sifers performed subcutaneous mastectomy surgery upon the plaintiff in May, 1979. Dr. Sifers’ primary objective in performing the surgery was to prevent the possibility of the plaintiff developing breast cancer later. During the plaintiff s operation, Dr. Sifers removed breast tissue from between the muscle and skin, and silicone gel implants were inserted to reconstruct the breast. Approximately 20% of the breast tissue was not removed by Dr. Sifers to permit possible further breast reconstruction at a future time.
Complications arose after the plaintiff s surgery. The nipple areas grew dark and hardened; the skin died and pulled away from the breast. Surgery was performed by Dr. Sifers in August, 1979, to remove those areas of dead skin and to close the wound. Dr. Sifers removed the stitches several weeks later. The day Dr. Sifers removed McGuire’s stitches, the incision opened and required restitching at an emergency room. From August to November, 1979, the plaintiffs stitches in the breast area reopened requiring restitching three or four times. When the incisions broke open, implants were visible. Where the stitches failed, openings were sometimes two or three inches wide.
In an effort to solve the problem Dr. Sifers removed the breast implants in November, 1979, and placed smaller implants in the breasts. For a three to four month period the plaintiff began to feel better and all incisions remained closed. Since her first operation the plaintiff had been confined to bed; she was now allowed to get up and take over household chores.
Troubles began anew in March, 1980, when the incision on the right breast opened. Dr. Sifers repeatedly performed corrective surgery. The incisions continually broke open between March and May, 1980. In May, 1980, Dr. Sifers again replaced one of the implants with a smaller implant. In the new implant area the incision opened frequently between May and August, 1980. Both breast implants were removed in August, 1980, by Dr. Sifers. The plaintiff, still in pain, consulted another doctor in August, 1980. In December, 1980, after office treatment and surgery performed by the second doctor, the plaintiff recovered. McGuire has not yet determined whether complete breast reconstruction surgery should be attempted.
At trial the plaintiff introduced expert witness testimony to prove Dr. Sifers treated the plaintiff in a medically negligent manner before, during and after surgery. The jury found for the plaintiff on November 24, 1982. The jury apportioned 65% of the fault to Dr. Sifers and 35% to the plaintiff. The trial judge reduced the judgment in both Count 1 and Count 2 by 35%. the judgment totaled $443,300.00. The defendants appeal. Plaintiff cross-appeals. The Insurance Commissioner, representing the Fund, was allowed to intervene in the appeal.
The first issue involves the admission into evidence of a portion of Dr. Sifers’ testimony. During the presentation of plaintiff s evidence, Dr. Sifers was called as a witness.
The defendants contend reports of the Hospital Quality Assurance Committee introduced through Dr. Sifers’ testimony was irrelevant and erroneously admitted since these events occurred after the plaintiff s surgery. From the transcript of Dr. Sifers’ testimony, it is not clear which events occurred before or after the plaintiffs surgery. Dr. Sifers, in his answers to questions propounded by plaintiffs counsel, interjected into evidence the matters which his counsel now claims as error. Just prior to that testimony, Dr. Sifers asked his attorney if he should answer the question. Defendants’ counsel urged him to answer. The defendants’ counsel did then object to the relevancy of a portion of the doctor’s testimony concerning matters subsequent to the plaintiff s surgery.
Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience, not a matter of law. State v. Norman, 232 Kan. 102, Syl. ¶ 4, 652 P.2d 683 (1982). Subject to certain exclusionary rules, the admission of evidence lies within the sound discretion of the trial court. State v. Norman, 232 Kan. at 108. Some of the matters contained within Dr. Sifers’ testimony were events that occurred prior to plaintiff s surgery. At the time of trial, defendants failed to object that specific events occurred after the surgery. Without specific objections, the admission of evidence is generally not reversible error. See State v. Garcia, 233 Kan. 589, Syl. ¶ 7, 664 P.2d 1343 (1983).
The defendants did object to the admission of Bethany Medical Center documents promulgated in June of 1981, subsequent to plaintiff s operation, which set restrictions on the performance of subcutaneous mastectomy surgery. It was Dr. Sifers who, while testifying at the trial, produced the documents from his briefcase; he then stated he had been using similar standards contained within the papers since 1971. Dr. Sifers’ own testimony established the relevancy of these documents after he had voluntarily produced the documents.
The plaintiff claims if error was committed by admission of the evidence, it was harmless in the face of expert testimony. In addition defendants fail to show how the testimony prejudiced them. K.S.A. 60-261 provides:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Here it was Dr. Sifers who actually inserted into evidence the statement defense counsel claims as error. His client endeavored at trial to justify his past actions by implying his course of conduct in 1979 has been adopted as the proper standard for procedures in 1982. Despite defendants’ attorney’s objections urging the judge to require his client to stop testifying, the doctor continued to defend his prior actions. Defendants now claim that evidence was not relevant and it was error to admit the evidence. It was the defendant himself who proceeded in a manner which required the trial judge to admit the evidence. Where a party procures a court to proceed in a particular way thereby inviting a particular ruling, that party is precluded from assailing such proceeding and ruling on appellate review. Grimm v. Pallesen, 215 Kan. 660, 527 P.2d 978 (1974). The trial court did not err in admitting the evidence.
Defendants contend the evidence did not support the amount of the verdict. They contend the $600,000.00 the jury awarded to the plaintiff, before reduction for plaintiff s comparative fault, should shock the conscience of this court. The defendants cite the case of Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, Syl. ¶ 1, 522 P.2d 176 (1974), where this court stated:
“Where the charge of excessive verdict is based on the passion or prejudice of the jury and depends for support solely on the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered, unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.”
Defendants claim a large portion of the plaintiff s damages was compensation for past and future pain, suffering, disabilities, disfigurement and mental anguish. The plaintiff agrees with this assessment.
The court in Kirk also said at 214 Kan. 736-37:
“An examination of the numerous cases challenging the sufficiency, or insufficiency , of a verdict reveals no simple, symmetrical pattern or design. Each case seems to stand on its own facts. We deem it fruitless to attempt a reconciliation of the various amounts which have or have not been held excessive, and we shall undertake no such effort. Perhaps no better explanation can be given for the lack of dollars and cents uniformity in our decisions than is expressed in Domann v. Pence, 183 Kan. 135, 325 P.2d 321:
“ ‘. - . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .’ (p. 141.)
“The times in which we live are highly inflationary, with constantly climbing prices and a continually shrinking dollar. It is against this sort of a background that we must consider the dictates of conscience.”
An appellate court should be cautious when requested to substitute its judgment for that of the trier of fact that heard the case. We cannot say, under these facts, the verdict is so excessive as to shock the conscience or indicate passion and prejudice on the part of the jury.
The defendant, Sifers, Taylor and Hitchcock, M.D.’s, Chartered, a professional corporation (Corporation), appeals from the denial of its motion for a directed verdict at the close of all the evidence. The Corporation contends it was not liable for Dr. Sifers’ negligence under the doctrine of respondeat superior. The Corporation bases its argument upon the Kansas Health Care Provider Insurance Availability Act (Act). K.S.A. 40-3401 et seq. The Insurance Commissioner opposes the Corporation on this issue. The Act was examined by the court in State ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 576 P.2d 221 (1978):
“The Kansas Health Care Provider Insurance Availability Act was passed by the 1976 legislature as a partial response to increasing pressure brought upon Kansas health care providers because of the national medical malpractice crisis. The primary feature of the act is the requirement that all health care providers operating within the state must obtain professional malpractice liability insurance (40-3402) and pay a surcharge to the health care stablilization fund (40-3404). The law requires the provider to carry a basic policy of $100,000 per occurrence and an annual aggregate of $300,000 for all claims made during the period. The stabilization fund provides for the payment of claims in excess of policy limits. Included in the act is a provision requiring every health care insurer to participate in an apportionment plan whereby any health care provider may obtain liability insurance from the plan if insurance from a conventional source (40-3413) is not available.
“The problem of obtaining and maintaining affordable malpractice insurance came before the legislature in 1971, 1973 and 1975. As a result, the legislature •enacted a law in 1975 requiring all health care insurers to report their claims experience to the commissioner of insurance (K.S.A. 1975 Supp. 40-1126, et seq.). In 1976, however, the problem had grown to such proportions it received full legislative attention. A legislative interim committee was told in detail how insurance costs had skyrocketed on present policies, policies were unavailable for new doctors, insurers were beginning to withdraw from the medical malpractice field, and the availability of medical service in some Kansas communities was threatened. In response, the committee proposed twelve bills, including the act in the present controversy.
“The original bill did not require mandatory insurance coverage, nor did it require payment of the surcharge. These provisions were added by the legislature at the behest of Insurance Commissioner Fletcher Bell. The mandatory coverage provision, it was alleged, would provide for the financial stability of the insurance availability program and would assure all Kansans they would have a source of recovery for damages resulting from malpractice.”
For an in-depth analysis see Reports of Special Committees to the 1976 Kansas Legislature re: Proposal No. 42 — Medical Malpractice.
As noted in State ex rel. Schneider v. Liggett, the Fund is required to pay “[a]ny amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable resident health care providers or resident self-insurers for any such injury or death arising out of the rendering of or the failure to render professional services within or without this state.” K.S.A. 1983 Supp. 40-3403(b). (No change since statute passed in 1976.) Health care providers covered by the Act include “a person licensed to practice any branch of the healing arts by the state board of healing arts,” and “a professional corporation organized pursuant to the professional corporation law of Kansas by persons who are authorized by such law to form such a corporation and who are health care providers as defined by this subsection.” K.S.A. 1983 Supp. 40-3401(/). (No change in these portions of the statute since statute passed in 1976.)
The Act classifies both the doctor and the professional corporation as health care providers. The Corporation argues the legislature did not intend for both a doctor and his or her professional corporation be liable to a patient for the same occurrence. The Corporation claims if both the doctor and the professional corporation are liable for the same occurrence, premium costs of medical malpractice insurance will be increased, thereby defeating the purpose of the Act.
Physicians who are shareholders or employed by a professional corporation are required by the Act to obtain basic liability coverage the same as other physicians who are not shareholders or employees of a professional corporation. The Corporation claims professional corporations classified as health care providers are required to have malpractice insurance to protect patients where nurses or medical technicians employed by that professional corporation are negligent.
The laws of this state contain broad general provisions authorizing the organization of corporations for any lawful business purpose. K.S.A. 17-6001(b). Other statutes permit persons engaged in certain professions, when licensed to practice that profession, to form corporations for the practice of their profession. K.S.A. 17-2707.
A professional corporation is subject to the general laws of Kansas relating to corporations except that any provision of the professional corporation law shall take precedence over any provision of the general corporation law where they conflict. K.S.A. 17-2708. There is no conflict between general laws governing corporations and professional corporation laws in this case; therefore, the general corporation law controls.
Professional liability insurance is required to be maintained by all health care providers as a condition to rendering services in the state. K.S.A. 40-3402 provides in part:
“(a) A policy of professional liability insurance approved by the commissioner and issued by an insurer duly authorized to transact business in this státe in which the limit of the insurer’s liability is not less than one hundred thousand dollars ($100,000) per occurrence, subject to not less than a three hundred thousand dollar ($300,000) annual aggregate for all claims made during the policy period, shall be maintained in effect by each resident health care provider as a condition to rendering professional service as a health care provider in this state, unless such health care provider is a self-insurer.”
K.S.A. 1983 Supp. 40-3401(/) defines both Dr. Sifers, a person licensed to practice a branch of the healing arts, and the Corporation as a “health care provider.” Each health care provider is required by statute to maintain professional liability insurance.
K.S.A. 1983 Supp. 40-3403 provides for the establishment of a fund to pay any amount due from a judgment or settlement in excess of the basic coverage of all liable health care providers. It states in part:
“(a) For the purpose of paying damages for personal injury or death arising out of the rendering of or the failure to render professional services by a health care provider, self-insurer or inactive health care provider subsequent to the time that such health care provider or self-insurer has qualified for coverage under the provisions of this act, there is hereby established the health care stabilization fund. The fund shall be held in trust in a segregated fund in the state treasury. The commissioner shall administer the fund or contract for the administration of the fund with an insurance company authorized to do business in this state.
“(b) Subject to subsection (e), the fund shall be liable to pay: (1) Any amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable resident health care providers or resident self-insurers for any such injury or death arising out of the rendering of or the failure to render professional services within or without this state . . . .” Emphasis supplied.
The Fund must pay any amount of a judgment or settlement in excess of the basic coverage liability of all liable resident health care providers or resident self-insurers.
The basic coverage required for a health care provider is set forth in K.S.A. 40-3408 which states in part:
“The insurer of a health care provider covered by the fund or self-insurer shall be liable only for the first one hundred thousand dollars ($100,000) of a claim for personal injury or death arising out of the rendering of or the failure to render professional services by such health care provider, subject to an annual aggregate of three hundred thousand dollars ($300,000) for all such claims against the health care provider. However, if any liability insurance in excess of such amounts is applicable to any claim or would be applicable in the absence of this act, any payments from the fund shall be excess over such amounts paid, payable or that would have been payable in the absence of this act.”
The Corporation claims even though there are two health care providers, Dr. Sifers and the Corporation, each required to maintain professional liability insurance, only Dr. Sifers’ insurer is liable for the first $100,000.00 of the plaintiffs claim.
The Corporation makes two arguments why corporations are not liable for negligent acts of doctors who are shareholders or employees. Both arguments are based on legislative intent, and cite no authority or legislative history to support them.
Defendants first argue because professional corporations were not included in the original definition of health care provider, the legislature must have intended that doctors and their professional corporations were to be treated independently, thus vitiating the vicarious liability between them. This line of reasoning is without merit and cannot be supported by examining the legislative history of Senate Bill No. 646 (L. 1976, ch. 231). Senate Bill No. 646 was changed four times during its legislative course. When examining those changes one finds that the groups included in the definition of health care provider changed with each draft. Some groups were added to the definition while others were deleted. The reason for changes was not that the legislature was considering the doctrine of respondeat superior or issues of liability between parties. It was for the reason the respective groups asked to be included or excluded from the Act. This is recognized by this court in Liggett, 223 Kan. at 612, where we noted that nurses and dentists were exempted from the Act because they asked to be exempted, while pharmacists were included in the Act because they asked to be included.
The legislature included professional corporations in the bill for the same reason it included pharmacists, that is because it was asked to include professional corporations in the Act. Professional corporations were added to Senate Bill No. 646 in conference committees after the bill had already been through two Senate committees and one House committee. Since the relevant language was added to the bill in conference committee, it is difficult to establish with any degree of certainty why it was added. The reason the legislature was concerned was that it knew professional corporations could be liable for their doctor stockholders’ and doctor employees’ negligent acts through respondeat superior and it wanted corporations to have the limited protection provided by the Act. This is the only logical explanation of why corporations were included. There is no question that the doctrine of respondeat superior was applicable to doctors and their corporations in Kansas at the time of enactment. See Jacobson v. Parrill, 186 Kan. 467, 472, 351 P.2d 194 (1960).
So, instead of abrogating the doctrine of respondeat superior as appellant contends, the professional corporations were added as health care providers to protect the professional corporations from unlimited exposure. If this was not the underlying intent of the legislature, it most certainly has had that effect because all professional corporations of doctors in Kansas now have professional liability policies and these policies cover their employee doctors.
In their second argument, appellants contend because doctors and corporations are both defined as health care providers and are required to carry the basic coverage limits, the doctrine of respondeat superior is inapplicable. There must be a showing of independent fault on the parts of the doctor and the professional corporation before the professional corporation is liable. Or, in other words, appellants contend that the legislature changed the tort law of vicarious liability in Kansas by requiring both the doctors and professional corporations to have the coverage.
This court reviewed the doctrine of respondeat superior or vicarjous liability as applied to corporations in Kline v. MultiMedia Cablevision, Inc., 233 Kan. 988, 989, 666 P.2d 711 (1983):
“[A] corporation is liable for the torts of its agent when committed within the scope of the agent’s authority and course of employment even though it did not authorize or ratify the tortious acts. [Citation omitted.] A related rule of law states a principal is responsible for the torts of its agent where the toitious acts are incidental to and in furtherance of the principal’s business, even though outside the scope of the agent’s authority.”
The rationale for the doctrine of respondeat superior was stated in 53 Am. Jur. 2d, Master and Servant § 417 at p. 432:
“The doctrine of respondeat superior, under which liability is imposed upon the master for the acts of his servants committed in the course or within the scope of their employment, has its foundation or origin in consideration of public policy, convenience, and justice. It is elemental that every person in the management of his affairs shall so conduct them as not to cause an injury to another, and if he undertakes to manage his affairs through others, he remains bound so to manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority. ‘The maxim of respondeat superior,’ said Lord Chief Justice Best in Hall v. Smith, ‘is bottomed on this principle: that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.’ ”
A professional corporation is subject to certain responsibilities when it is formed. Health care providers who incorporate may do so to gain certain advantages. They must also accept certain liabilities, such as the application of the doctrine of respondeat superior. Such liability may result in greater care being taken by professional corporations when employing physicians.
There is no indication in the Act or in legislative committee reports or minutes indicating the legislature intended to abrogate the application of respondeat superior to professional corporations who are health care providers. K.S.A. 40-3402 requires each health care provider to maintain minimum malpractice insurance of $100,000.00 per occurrence and an annual aggregate of $300,000.00 for all claims made during the period. The Fund will pay the amount in excess of the basic coverage liability. K.S.A. 1983 Supp. 40-3403(b). The Act does not limit liability to $100,000.00 for all health care providers in any occurrence. It only limits each health care provider’s liability to $100,000.00 for each occurrence. Several health care providers can be held liable in the same malpractice action. The Act’s goal of limiting the cost of malpractice insurance may be still reached, although a professional corporate health care provider is subject to malpractice liability, for the reason its potential liability is restricted by the Act.
The legislature made these decisions based upon other considerations, not because it wanted to address vicarious liability of doctors and their corporations. If the legislature had intended to abrogate the doctrine of respondeat superior as to professional corporations, it could have and would have done so through the enactment of specific and definitive legislation. But, it did not do this. The reason why is that it did not consider abrogating this long-standing rule of law as to doctors and their professional corporations; Since the rule of respondeat superior was not changed as to doctors and professional corporations by the legislature in the Act, the rule is still applicable to Dr. Sifers and the Corporation. Therefore, the Corporation is responsible for the negligent act of its employee. As such, the trial court’s ruling is correct and must be upheld.
Subsequent to the jury verdict of November 24, 1982, the trial court scheduled a hearing for December 8, 1982, to determine whether the separate award to the plaintiff on behalf of her husband should be reduced by the percentage of fault attributed to the plaintiff. After the hearing the issue was taken under advisement by the court. By Memorandum Decision dated and filed January 4, 1983, the trial court ruled that any recovery for Terry McGuire pursuant to K.S.A. 23-205 should be reduced by the percentage of fault attributed to the plaintiff. The plaintiff cross-appealed from this decision. A Journal Entry of Judgment in the amount of $443,300.00 was signed by all parties and filed • with the Clerk of the District Court of Johnson County, Kansas on January 5, 1983.
A Motion for New Trial or, in the Alternative, the Request for Remittitur was filed by defendants on January 17, 1983. On February 3, 1983, the trial court overruled both motions.
On February 4, 1983, the Fund mailed $243,300.00 to the Clerk of the District Court as full payment of its share of the judgment.
March 2, 1983, defendants filed a Notice of Appeal. Dr. Sifers filed a separate motion requesting the trial court issue an order to allow payment of $100,000.00 into court, to toll the interest on that portion of the judgment against Dr. Sifers. That motion was granted the same day. As a result, the Medical Protective Company, on behalf of Dr. Sifers, paid the amount of $100,000.00 into the Clerk of the District Court.
The Insurance Commissioner’s motion to intervene, on behalf of the Fund, was granted April 6, 1983.
A motion was filed by plaintiff asking the court to fix a date from which interest should run on the judgment amount, and a hearing was duly held on March 11, 1983. The trial court ruled that since less than the total amount had been tendered to the Clerk of the District Court, the statutory interest rate of 15% should run on the total amount of the judgment of $443,330.00, even though $343,300.00 had previously been paid into court. The trial court further ruled that the statutory interest rate of 15% should attach to the judgment as of the date of the jury verdict of November 24, 1982, as opposed to the date the journal entry of judgment was filed, January 5, 1983.
The defendants and the Insurance Commissioner raise two questions concerning postjudgment interest.
First, the defendants and the Insurance Commissioner contend postjudgment interest should run from January 5, 1983, the day the journal entry was filed, not from the November 4, 1982, date the verdict was returned by the jury. The parties complain the trial court erred when it ordered posljudgment interest to run from the date of the verdict.
Plaintiff cites Reel v. Kress & Co., 192 Kan. 525, 389 P.2d 831 (1964); Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 103 P.2d 918 (1940); Koontz v. Weide, 111 Kan. 709, 208 Pac. 651 (1922). All cases cited by the plaintiff predate the 1976 amendment of K.S.A. 60-258.
K.S.A. 1983 Supp. 16-204(c) provides:
“Any judgment rendered by a court of this state on or after July 1, 1982, shall bear interest on and after the day on which the judgment is rendered, at the rate of 15% per annum.”
In State v. Dubish, 234 Kan. 708, 714, 675 P.2d 877 (1984), the court stated:
“K.S.A. 60-258 was amended in 1976, and now provides:
“ ‘Entry of judgments [shall] be subject to the provisions of section 60-254(b). 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. . . .
“ ‘When judgment is entered by judgment form the clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure of service of a copy of the judgment form shall not affect the validity of the judgment.’
“The new statute’s language is clear. No judgment is effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. In re Estate of Burns, 227 Kan. 573, 575,608 P.2d 942 (1980).”
Under the present statute, there is no judgment rendered for interest to commence until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-258 (1979).
Where there is more than one claim for relief or multiple parties K.S.A. 60-258 states entry of judgment shall be subject to the provisions of K.S.A. 60-254(h), which provides:
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Plaintiff argues all issues were resolved on Count I, the claim for her own injuries, when the verdict was returned by the jury; unresolved issues remained only on Count II, the claim for loss of consortium, and therefore, postjudgment interest should run on Count I from the date the verdict was returned. This is incorrect. A final judgment of one or more of the claims in a lawsuit pursuant to K.S:A. 60-254(b), to be effective, must follow the filing requirements of K.S.A. 60-258. Without a journal entry or judgment form as prescribed by K.S.A. 60-258, there was no judgment on any issue. It is error to allow interest on a verdict for unliquidated damages for the time between its finding and rendition of the judgment thereon. Milling Co. v. Buoy, 71 Kan. 293, Syl. ¶ 3, 80 Pac. 591 (1905).
The plaintiff claims losing parties by delaying the entry of judgment are capable of denying the prevailing party interest it is entitled to receive. In most cases a journal entry can be filed, finalizing judgment, shortly after trial. Trial courts should prevent intentional delay of the entry of judgment by filing a judgment form or requiring that a journal entry be signed and filed with the clerk of the court as soon as possible.
Second, the defendants’ and the Insurance Commissioner’s claim is that the trial court erred in ruling posljudgment interest should run on the $443,300.00 judgment although $343,300.00 was paid to the clerk of the district court. The Insurance Commissioner on behalf of the Health Care Stabilization Fund paid $243,300.00 into court and Dr. Sifers’ insurer paid $100,000.00 into court.
In Schaefer & Associates v. Schirmer, 3 Kan. App. 2d 114, 119-20, 590 P.2d 1087 (1979), Judge Spencer wrote:
“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. [Citations omitted.]
“The trial court offered plaintiff the opportunity to avoid the accrual of interest on appeal by making payment into court, with appropriate orders directing that such would not constitute an acquiescence. Plaintiff did not avail itself of that opportunity. Under our statute, interest on the judgment must therefore continue to accrue until it is paid.” Emphasis supplied.
In Bartlett v. Heersche, 209 Kan. 369, Syl. ¶ 2, 496 P.2d 1314 (1972), this court stated:
“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.”
Neither Bartlett nor Schaefer addresses the question of whether partial payment of a judgment tolls postjudgment interest on the portion paid into court, but the language used in the opinions suggests a judgment debtor must pay the full amount of the judgment into court to toll postjudgment interest. In Schaefer the word “tender” is utilized. This court stated in Carpenter v. Riley, 234 Kan. 758, Syl. ¶ 1, 675 P.2d 900 (1984):
“Tender is an unconditional offer to perform a condition or obligation. The party making tender must have the ability for immediate performance. The tender must be absolute and unconditional to be effectual.”
47 C.J.S., Interest & Usury § 62, pp.148-50 states:
“To suspend the accrual of interest on a debt, a tender must be in the full amount owed by the debtor, as adjudicated by the trial court, or on appeal, regardless of whether the tender is made before or after the bringing of a suit. Accordingly, this rule is applicable to tenders made before bringing suit, or during litigation, or after judgment, and pending appeal.
“The accrual of interest on a debt is not generally suspended by the tender in an amount less than the amount due, and the fact that there is a bona fide dispute as to the amount of the indebtedness is no bar to granting of interest if the amount offered falls short of the amount found to be due. Thus, a tender of the principal amount of an indebtedness may not stop the accrual of interest thereon where it does not include accrued interest, costs, or attorney fees. . . .
“A partial payment of a judgment into court, however, may stop the accrual of interest on that part of the judgment that has been satisfied, if it is a legally sufficient tender and can be treated as a partial payment, and if the clerk of the court is directed to apply the partial payment to the reduction of the amount of the judgment.”
Dr. Sifers’ insurer and the intervenor Insurance Commissioner did not intend their payment into court to be a partial payment of their portion of the judgment. Their intent was to fully pay the portion of the judgment for which they were responsible to the plaintiff, thereby tolling the statutory rate of interest pending appeal.
The defendants and the intervenor argue the plaintiff is receiving an unfair windfall because she is receiving statutory postjudgment interest at a 15% interest rate and close to 9% interest on the funds already paid into court. To hold that the accrual of interest was not tolled will unjustly enrich the plaintiff who is receiving interest on the money already paid plus, under the trial court’s order, statutory interest of 15% on the entire judgment until paid.
47 C.J.S., Interest & Usury § 23, p. 69, contains this statement:
“The allowance of interest on a judgment, under the statutes, is not a measure of damages, but a compensation fixed by law for the purpose of indemnifying the judgment creditor for the nonpayment of the liquidated claim and the loss of the use of his money, although the interest has been held to be a legal incident of the judgment, and a distinct substantive part of the debt.”
We have determined the professional corporation’s insurer was responsible for its employee’s, Dr. Sifers, negligent acts while treating the plaintiff. The Corporation’s insurer, as a health care provider, was subject to liability not to exceed $100,000.00 for its employee’s negligent act notwithstanding that the employee, Dr. Sifers, also a health care provider, was required to pay $100,000.00. Therefore, Dr. Sifers’ insurer and the Fund have paid into court the full amount of the judgments against them. The remaining unpaid portion of the judgment ($100,000.00) was the responsibility of the professional corporation’s insurer. Payment by Dr. Sifers’ insurer and the Insurance Commissioner for the Fund was an unconditional tender of the full amount they owed. There was no partial payment of the judgment against Dr. Sifers’ insurer and the Fund. The professional corporation, having failed to pay its proper portion of the judgment, owes the remaining $100,000.00, at the legal rate of interest allowed by law from the date the journal entry was filed with the clerk of the court.
The plaintiff cross-appeals from the trial court’s ruling that the award for the plaintiff s loss of consortium claim be reduced by the comparative fault attributed to the plaintiff. The question is one of first impression.
Loss of consortium actions are brought pursuant to K.S.A. 23-205, which provides:
“Where, through the wrong of another, a married person shall sustain personal injuries causing the loss or impairment of his or her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in such person, and any recovery therefor, so far as it is based upon the loss or impairment of his or her ability to perform services in the household and in the discharge of his or her domestic duties, shall be for the benefit of such person’s spouse so far as he or she shall be entitled thereto. Nothing herein shall in any way affect the right of the spouse to recover damages for the wrongful death of his or her spouse.” Emphasis supplied.
K.S.A. 60-258a(a), a portion of the comparative negligence statute, states:
“(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.” Emphasis supplied.
The right to recover for loss of consortium vests in the spouse who files an action for personal injuries, not in the spouse who actually suffers the loss of consortium. K.S.A. 23-205. See Cornett v. City of Neodesha, 187 Kan. 60, 62, 353 P.2d 975 (1960). The award of damages for loss of consortium is to the plaintiff for the benefit of the spouse. K.S.A. 60-258a(a) requires the award for damages to any party shall be reduced by the amount of negligence attributed to such party. The language of our statutes requires the award for loss of consortium be reduced by the percentage of the injured spouse’s fault. See also Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978). The trial court was correct.
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The opinion of the court was delivered by
Lockett, J.:
This is a habeas corpus proceeding in which petitioner claims that by operation of the interstate Agreement on Detainers (Agreement) (K.S.A. 22-4401 et seq.) the Sedgwick County District Court was required to dismiss the criminal charges for which he was being held for trial in that court. The material facts are essentially undisputed. They are almost wholly established by documentary evidence.
On November 9, 1982, while in custody at the Sedgwick County Jail in Wichita, petitioner applied for a writ of habeas corpus. It was immediately issued. At the conclusion of an evidentiary hearing on November 16, 1982, the trial judge ordered the writ dissolved and that petitioner remain in the sheriff s custody for trial on the Sedgwick County charges. Petitioner was tried and convicted. Petitioner appealed. The Court of Appeals reversed the district court determining the State had failed to afford Sweat a speedy trial as required by K.S.A. 22-4401 et seq. The State filed its Petition for Review which this court granted.
In early 1982, petitioner was a prisoner in the custody of the California Department of Corrections at the California Rehabilitation Center, Norco, California (CRC). He was serving a two-year sentence for a 1981 California robbery conviction. The superintendent of CRC informed petitioner in writing that a detainer had been lodged against him with respect to untried 1981 Sedgwick County drug charges. There is confusion in the documentation of the date petitioner was informed. He was informed between March 22, 1982, and March 26, 1982. Petitioner was provided with a set of unprepared Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indict ments, Informations or Complaints forms. Sweat determined to invoke the provisions of the interstate Agreement on Detainers. He partially filled in the blank portions of the forms and then returned the uncompleted set of forms to the California prison officials. Sweat had failed to correctly address copies of the forms to the court where the charges were pending and to the prosecuting official as required by the Agreement. The incomplete forms were incorrectly completed by the California authorities and signed by the superintendent of CRC. Sweat reviewed the completed documents. The completed documents and the California offer to deliver temporary custody, together with a form letter bearing the date of March 26, 1982, were sent by CRC by .certified mail to the Sedgwick County sheriff on March 31, 1982.
The documents were received by the sheriff, but the particular date of their receipt by him is unknown. No copies of the documents were forwarded by the sheriff to the Sedgwick County District Court, or the Sedgwick County District Attorney. The documents were simply filed in the sheriff s office when received. No copies of any of the documents were mailed by CRC to the Sedgwick County District Court or to the Sedgwick County District Attorney. No documents were received by either the court or the district attorney’s office from petitioner, his attorney, or any other office or person.
Sweat was later transferred to Soledad, California Correctional Training Facility where he was again notified of the Kansas detainer. A second set of forms to request disposition of the pending Kansas charges was supplied the petitioner. These forms were completed and then forwarded by the California authorities to the proper Kansas authorities. Petitioner remained in custody in California on his robbery conviction from March, 1982, to October 27, 1982, when he was returned to Wichita by the Sedgwick County sheriff upon acceptance of a California offer to deliver temporary custody. Sweat’s return resulted from his second request for final disposition of untried Kansas charges. On January 24,1983, more than 220 days after his initial request to be returned to Kansas, Sweat went to trial on the drug charges. A jury verdict finding him guilty of possession of marijuana was returned on January 27, 1983.
Forty-eight states, including Kansas and California, and the United States, are signatories to the interstate Agreement on Detainers. K.S.A. 22-4401 et seq.}, Cal. Penal Code § 1389 et seq. (West 1982). The purpose of the Agreement, as set forth in Article I, is to encourage the orderly and expeditious disposition of detainers based on untried indictments, informations or complaints, in an effort to reduce uncertainty and facilitate prisoner treatment and rehabilitation in the state where the prisoner is incarcerated. Article III contains the operative provisions of the Agreement, and in pertinent part states:
“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution pf a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to he delivered to the prosecuting officer and the appropriate court of the prosecuting officer«jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. . . .
“(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
“(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner.” Emphasis supplied.
Article V provides for the transfer and temporary custody of the requesting prisoner to the state in which the charges are outstanding. It also provides:
“(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”
Furthermore, Article IX instructs that the Agreement shall be liberally construed so as to effectuate its purposes.
The Uniform Mandatory Disposition of Detainers Act (Act), K.S.A. 22-4301 et seq., is a Kansas intrastate procedure whereby persons imprisoned in this state may request final disposition of other Kansas charges pending against them. The procedures to obtain final disposition of the charges pending under the Act are similar to the procedures of the Agreement.
Both the Act and the Agreement require the person imprisoned to request final disposition of the untried charges. The request must be in writing addressed to the court where the charges are pending and to the county attorney charged with the duty of prosecuting the charges. The request under both the Agreement and the Act is to be delivered by the prisoner to the official having custody. The person having custody of the requesting prisoner certifies the reason and terms of commitment, then by registered or certified mail sends a copy of the prisoner’s request and the official certificate to the court and one copy to the county attorney whom the prisoner has addressed.
This court has determined that the Agreement and the Act are parallel acts designed to secure a speedy trial to the person incarcerated in a penal institution either in this or another state. New cases determining questions arising from the Agreement have been dealt with by this court, but we have had numerous cases arising under the Act. Questions answered as to the Act are therefore precedent for questions arising under the Agreement.
The singular issue under the Agreement of who bears the burden of noncompliance resolves itself into the question of whether petitioner or the California corrections officials bore the duty to ensure that the request for disposition of the pending Kansas charges was properly addressed. An answer requires, in addition to the procedural requirements contained within the Agreement, a review of our earlier decisions concerning the Agreement and the Act.
In Brimer v. State, 195 Kan. 107, 112, 402 P.2d 789 (1965), we held that there was no substantial or sufficient compliance with the Act where a Kansas inmate’s request for disposition of detainer was sent to the district court of Saline County, rather than the city court of Salina in which the underlying complaint was pending. We said:
“[T]he right to invoke [the speedy trial protections of the Act] requires compliance by the prisoner with all its provisions including the preparation by him and the mailing by the warden of his notice for request of disposition of detainer to the court in which the untried indictment, information or complaint is then pending against him. While the Act is to be construed so as to effectuate its general purpose to make uniform the law of those states which have enacted it, we cannot say that when a request for disposition of detainer is mailed to a court other than the one in which the criminal charge against the prisoner is then pending, is a compliance with the Act so as to require the state to bring the defendant to trial within the time and under the terms and conditions of section 62-2903 [Corrick].”
The Brimer rule was affirmatively stated in Townsend v. State, 215 Kan. 485, Syl. ¶ 3, 524 P.2d 758 (1974):
“To obtain the speedy trial guaranteed by section 10 of our Bill of Rights, and as legislatively defined by the uniform mandatory disposition of detainers act, it is incumbent upon an accused incarcerated in a penal institution of this state to comply with all provisions of the act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it.”
See State v. Brooks, 206 Kan. 418, 479 P.2d 893 (1971).
We next addressed the relationship between the Act and the Agreement in State v. Dolack, 216 Kan. 622, 533 P.2d 1282 (1975). While the Uniform Mandatory Disposition of Detainers Act governs the speedy trial rights of inmates confined in Kansas correctional institutions, the Agreement on Detainers governs the speedy trial rights of those incarcerated in penal or correctional institutions outside Kansas, including the federal penitentiary at Leavenworth. Dolack, 216 Kan. 622, Syl. ¶ 4. The purposes of the two enactments to this extent being the same, we applied the Brimer rule of compliance to requests for disposition under the interstate Agreement on Detainers, holding that a request must be addressed to the court in which the indictment, information or complaint is then pending and to the county attorney charged with prosecuting it. Dolack, 216 Kan. 622, Syl. ¶ 5 and at p. 634. In that case our ultimate finding of noncompliance with the Agreement also took into account the inmate’s blatant refusal to invoke its provisions after receiving specific instructions from the Johnson County District Attorney. 216 Kan. at 625-26, 635.
In Ekis, Petitioner v. Darr, 217 Kan. 817, 539 P.2d 16 (1975), we announced the rule that “substantial compliance” with the provisions of the Agreement and the Act was sufficient to invoke the protections afforded thereby. The request at issue in Ekis, however, was found not to be in substantial compliance with the Agreement because of five “readily apparent deficiencies”: (1) petitioner filed his “motion” in a court other than the one in which the complaint was pending, and knew of this error; (2) the motion was not accompanied by the required statement from his custodial officials concerning the status of petitioner’s sentence and parole eligibility; (3) the motion was sent by ordinary first class mail rather than by certified or registered mail with return receipt requested, as required by the Agreement; (4) the motion did not indicate it was intended to be a “notice” and “request for disposition” under the Agreement, but sought only a bare dismissal of the charges; and (5) the petitioner did not waive extradition, as required under Article III (e). Ekis, 217 Kan. at 822. In the course of our opinion, we also discussed the obligations of custodial officials with reference to an inmate’s request under the Agreement:
“Although now urging that he substantially complied, Ekis testified before the district court that at the time he prepared and filed his motion he had never heard of the Agreement on Detainers. This factor distinguishes the present case from those cited by the petitioner in which it was held that a good faith effort by a prisoner to proceed under the Agreement is all that is required of him. See, People v. Esposito, 37 Misc. 2d 386, 238 N.Y.S.2d 460; People v. Masselli, 17 A.D.2d 367, 234 N.Y.S.2d 929; Pittman v. State, 301 A.2d 509 (Del.); State v. Lippolis., 101 N.J. Super. 435, 244 A.2d 531. In each of those cases it was held that where á prisoner made known to the officials his intent to proceed under the Agreement, their subsequent failure to comply with the act could not frustrate his rights. The burden of their failure was visited, and rightly so, on the prosecution.
. . . The Agreement (Art. Ill [c]) requires the prison officials to advise an inmate of the existence of a detainer and of his right to make a request for final disposition. (The record does not disclose whether or not that was done.) If an inmate expresses a desire to take advantage of the Agreement the officials have a duty to assist him. They have no general duty to render unsolicited legal advice on an inmate’s litigation not connected with a proceeding under the Agreement.” 217 Kan. at 824.
Most recently we rejected the contention that the 180-day time limit contained in Article III of the Agreement begins to run on the date the prisoner’s notice and request for disposition is mailed, rather than the date it is received by prosecuting authorities in the state filing the detainer. State v. White, 234 Kan. 340, 673 P.2d 1106 (1983). A majority of other jurisdictions which had reached the issue ruled against such a claim, and we quoted with approval the following language from State v. Ternaku, 156 N.J. Super. 30, 34, 383 A.2d 437 (1978):
“ ‘The language of the statute is explicit. It provides for the commencement of the 180-day period when defendant has “caused to be delivered to the prosecuting officer and the appropriate court,” the written notice and request for final disposition of the pending indictment. The Legislature clearly intended that the documents be delivered to the prosecutor and the appropriate court before the 180-day period starts to run. The period does not start to run upon mere execution and delivery of the notice and request to the warden, commissioner of corrections or other official having custody of defendant. In our view it would be contrary to the public interest to start the running of the 180-day period prior to actual receipt of the notice and request by the prosecutor and the court. If we were to interpret the statute as defendant requests, an indictment would be subject to dismissal each time delivery of the documents to the prosecutor and court is delayed, regardless of cause. We cannot conceive our Legislature as intending such a result by enacting the Interstate Agreement on Detainers. As a matter of fact, had the Legislature intended the 180-day period to begin from the time a defendant delivers the notice and request to the warden, commissioner of corrections or other official having custody over him, it could have so signified by appropriate language.’ ” 234 Kan. at 344-4S.
In its majority decision, the Court of Appeals held that petitioner Sweat had substantially complied with the provisions of the Agreement by merely submitting his incomplete request for disposition of the Kansas detainer to the California correctional authorities. Thereafter-, the burden of compliance with the provisions of the Agreement rested with those officials, and the court concluded that their failure to forward the request to the prosecuting attorney and the appropriate court, instead of the sheriff, would not prohibit Sweat from invoking the 180-day speedy trial limitation of the Agreement. In re Habeas Corpus Application of Sweat, 9 Kan. App. 2d 268, 275-80, 677 P.2d 554 (1984). To the extent any prior Supreme Court decisions are inconsistent, the majority invited us to overrule those decisions. We decline.
In rendering judgment for petitioner Sweat, the Court of Appeals addressed its opinion to two issues: What must be done to trigger commencement of the Article III (a) 180-day period; and how should Article III (b) be applied in answering the first question? Sweat, 9 Kan. App. 2d at 273. Our rule in White, that the 180-day period commences only upon receipt of the prisoner’s notice and request by proper authorities in the state which filed the detainer, was criticized by the court as eviscerating Article III (b) “of all impact or force.” 9 Kan. App. 2d at 274. In support the court postulated a case in which custodial officials repeatedly refused to forward a prisoner’s request for speedy trial of the outstanding charges, which under a strict interpretation of the White rule would nevertheless foreclose the prisoner’s reliance on the protections of the Agreement solely because the proper authorities would never receive notice commencing the 180-day period. Sweat, 9 Kan. App. 2d at 274-75. We agree that cases involving misfeasance or malfeasance on the part of custodial officials deserve careful consideration under the Agreement and were considered in Ekis, but such wrongdoing is neither apparent nor claimed on the facts of this particular case.
Responding to the second question, the applicability of Article III (b) in- determining what actions trigger the 180-day period, the court relied on cases from other jurisdictions for its conclusion that the prisoner’s sole obligation is to inform his custodial authorities of his request for disposition of a detainer, after which the burden is on those officials to comply with the procedural requirements of the agreement. Sweat, 9 Kan. App. 2d at 275-78. However, we have never held this to be the law in Kansas, which was acknowledged by the Court of Appeals. Sweat, 9 Kan. App. 2d at 277.
Judge Meyer, in his dissent, reviewed the prior decisions of this court and concluded that the majority opinion was directly contrary to the views of the Kansas Supreme Court. There was no claim by Sweat of delay on the part of the California officials. The array of cases relied on by the majority involved charges that the custodial officials were dilatory in meeting their obligation or involved bad faith on the part of those officials. Thus, the operative language of Article III (b) upon which the various courts based their holdings was limited to the duty to “promptly forward” the prisoner’s request.
The Agreement and the Act are clear as to the requirements placed upon the prisoner. To insure that he will be promptly brought to trial on charges pending in this state, he must cause to be delivered to the prosecuting officer and the appropriate court written notice of his request for final disposition of the pending Kansas charges. He shall send the notice to the warden who will forward it together with the proper certificate. State v. Dolack, 216 Kan. 622, and Ekis, Petitioner v. Darr, 217 Kan. 817, clearly place the burden of compliance with this requirement of the Agreement and the Act upon the prisoner. The 180-day speedy trial limitation contained in Article III (a) of the Agreement, K.S.A. 22-4401 et seq., commences only upon receipt of the prisoner’s notice and request by proper Kansas authorities which caused the detainers to be filed against the prisoner. Here the proper authorities never received the required copies of the prisoner’s first request. Therefore, the time limitation did not commence until the proper authorities received Sweat’s second request for disposition of the charges pending against him pursuant to K.S.A. 22-4401 et seq.
There is no claim of affirmative wrongdoing by the California or Kansas authorities. None appears in the evidence or is claimed by Sweat. At most, the California authorities, when performing Sweat’s obligation, mistakenly addressed the forms to the Sedgwick County sheriff. We' do not feel that is misfeasance or malfeasance. Without clear proof of wrongdoing by the California correction officials, the petitioner has not effectively shifted the Dolack/Ekis burden of substantial compliance away from himself A petitioner who fails in his obligation under the Agreement to properly address his request for speedy disposition of charges pending against him must bear the burden and the consequences of the improperly delivered request. Here the petitioner has not “substantially complied” with his requirement under the Agreement.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a custom cutter to recover damages resulting from alleged defects in a new combine/gleaner sold to the plaintiff by a Pratt County implement dealer. The district court granted summary judgment in favor of defendant and plaintiff has appealed.
For purposes of this appeal the facts are undisputed and essentially are as follows: The plaintiff, Melvin A. Oiler, a custom combine cutter, bought a new combine from defendant, Kincheloe’s, Inc. The combine was delivered to the plaintiff in late May or early June of 1975. At the time of the purchase, plaintiff was given a written warranty from the manufacturer, Allis-Chalmers Corporation, which warranted new products sold by it to be merchantable and free of defects in workmanship and material from the time of shipment from the company’s factory. The warranty further provided that the company would repair and replace any part of any of its new products which failed under normal use and service. The written express warranty limited the company’s liability exclusively to repairing and replacing parts under the conditions stated therein.
Plaintiff immediately began to have problems with the combine. Plaintiff complained that the combine never did start properly and did not glean the grain properly. The machine apparently did not have sufficient power to perform effectively. The combine was nonoperational for a total of 52 days between September 13,1975, and October 15, 1976. Kincheloe attempted to correct the problems in October and November of 1975. In October 1976, Kincheloe again worked on the combine. It replaced numerous parts and took corrective measures in an attempt to improve its operation. According to the plaintiff, he took the machine only to Kincheloe for repairs. He was repeatedly told by Kincheloe that the machine would be repaired but it was not done satisfactorily. In October 1977, plaintiff apparently gave up and finally sold the combine to an equipment company in return for its assumption of his remaining debt on the combine. It was plaintiff s position that, as a result of defects in the combine and the defendant’s failure to repair it properly, he had suffered damages in the form of repair bills, telephone bills, lost use, and lost employment and cutting contracts.
Because of the nature of the trial court’s judgment in this case, it is necessary to review the procedural aspects of the case. Plaintiff filed his petition in the district court of Pratt County on October 17, 1977. The petition alleged in part as follows:
“4. That on or about January of 1975, defendant contracted to sell and plaintiff contracted to purchase an Allis-Chalmers cbmbine/gleaner for the purchase price of $34,000.00.
“5. That at the time of said purchase, defendant provided to plaintiff xerox copy of a page denoted as ‘WARRANTY’ regarding said purchase, a copy of which is attached hereto as ‘Exhibit A’.
“6. That said act on the part of defendant denoted material affirmation as to fact upon which the plaintiff relied and which formed the basis of the bargain.
“7. That said ‘WARRANTY warranted new products sold to be merchantable and free of defects, workmanship and material at the time of shipment from the company’s factory. Further, that the company would repair, or at its option replace, any of its new products which under normal use and service fails to conform to this ‘WARRANTY’ provided that said part shall be returned to the company’s factory or to the company’s dealer authorized to handle the new product, transportation charges prepaid, within twelve months . . . from the date of delivery of such new product by its first user.
“9. That with respect to the combine/gleaner aforementioned, delivery to the plaintiff was made in late May or early June of 1975.
“10. That said combine/gleaner was defective in that it was not merchantable and free of defects as stated in the aforementioned ‘WARRANTY.
■ “11. That defendant is a ‘dealer authorized to handle said product’ within the meaning of said ‘WARRANTY’.
“12. That defendant failed to properly repair and/or replace as provided in the ‘WARRANTY’ the defective combine/gleaner.
“13. That defendant was negligent in its repair of said combine/gleaner.
“14. That defendant’s actions in failing to properly repair and/or replace said combine/gleaner and/or negligently repairing said combine/gleaner, was a direct and material breach of the aforementioned ‘WARRANTY’.
“15. That as a result thereof, plaintiff has suffered damages in repair bills, telephone bills, lost use, lost employment, and has lost the benefit of the bargain which plaintiff made with defendant in the purchase of said combine/gleaner.
“16. That further, defendant has failed to abide by the terms of said ‘WARRANTY’ which has also directly and proximately resulted in damage to this plaintiff.” (Emphasis supplied.)
The express warranty attached to plaintiff s petition stated as follows:
“ALLIS-CHALMERS CORPORATION . . . warrants new products sold by it to be merchantable and free of defects in workmanship and material at the time of shipment from the Company’s factory. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY STATED HEREIN.”
The warranty then stated that the company will repair or replace any part of its new products which under normal use and service fails to conform to this warranty. The warranty period was twelve months except for engines sold as power units where the period was set at six months. The company’s liability, whether in contract or in tort arising out of warranties, representations, instructions, or defects from any cause, was limited exclusively to repairing and replacing parts under the conditions as stated.
Defendant Kincheloe filed an answer and counterclaim to plaintiff s petition on December 7, 1977. It generally denied the essential allegations of plaintiff s petition and set forth certain affirmative defenses. The answer alleged that all repairs made by defendant on plaintiff s combine were done in a competent, skillful and workmanlike manner; that plaintiff s combine was merchantable and free of defects, in workmanship and material, at the time of delivery to the plaintiff; and that the defendant has complied with and abided by the terms of any and all warranties which relate to plaintiffs combine. Kincheloe’s counterclaim sought to recover $2500 for the cost of repairing the combine. It is important to note that the answer specifically alleged that the combine was merchantable and free of defects and that defendant had complied with the terms of any and all warranties relating to the combine. Plaintiff filed a reply to the answer and counterclaim of defendant on December 12, 1977, in which plaintiff alleged that defendant failed to provide in a good and workmanlike manner the parts and services requested, and that the defendant failed to properly repair the combine. These various pleadings were never amended by the parties while the action was pending.
On March 21, 1978, defendant Kincheloe filed a third-party petition against Allis-Chalmers Corporation. In substance, the third-party petition alleged that, if there is adjudged to be any breach of warranty regarding plaintiff s Allis-Chalmers combine, any such breach is not a breach by defendant as retail seller of said combine, but is a breach by Allis-Chalmers, as the manufacturer of the product. In paragraph 5 of the third-party petition, defendant alleged that, should plaintiff recover on his claim against defendant, defendant is entitled to recover from the third-party defendant all of what plaintiff may recover from the defendant, because if there was any breach of warranty, as alleged by plaintiff, any such breach was a breach of the express and implied warranties of the third-party defendant, the manufacturer, Allis-Chalmers. It is important to note that the third-party petition of defendant not only refers to the express warranties but also to a breach of implied warranties. On June 7, 1978, Allis-Chalmers filed its answer to Kincheloe’s third-party petition. This pleading denied generally the allegations of the third-party petition and pleaded all affirmative defenses, including the statute of limitations, which upon completion of full discovery are applicable.
On July 11, 1979, defendant Kincheloe served interrogatories on the plaintiff. The pertinent interrogatories and answers submitted by the plaintiff are as follows:
“3. Upon what specific grounds do you base your alleged cause of action herein against the defendant, Kincheloe’s, Inc. ?
“ANSWER:
Loss of time — the combine never did start properly. The machine did not have sufficient power to perform effectively. Negligent repair, breach of warranty.
“5. What express warranty or warranties, if any, do you contend were made to you by the defendant, Kincheloe’s, Inc. with respect to the Allis-Chalmers combine/gleaner?
“ANSWER:
Warranted for one year
“7. What implied warranties, if any, do you contend wefe made to you by the defendant, Kincheloe’s, Inc. with respect to the Allis-Chalmers combine/gleaner in question?
“ANSWER:
Merchantability
Fitness for Particular Purpose
“12. What specifically do you contend were the breaches by the defendant, Kincheloe’s, Inc. of the implied warranties alleged by you to have been given by it?
“ANSWER:
Machine was not fit for ordinary purpose or for particular purpose, not merchantable.
“14. . If you rely upon negligence as a basis for your alleged cause of action herein and contend that the defendant, Kincheloe’s, Inc. was negligent, please state specifically and in detail the act or acts of negligence which you contend were committed by the defendant, Kincheloe’s, Inc.
“ANSWER:
No compression test were done until the fourth time they attempted to repair the machine. Expected Kincheloe’s to be able to put the machine in top condition. Told repeatedly it would be repaired, but it was not. Oil cooler leaked from time combine was purchased with Plaintiff charged for repairs.”
From the above interrogatories, it is obvious that plaintiff s claim against defendant Kincheloe was based not only on a theory of breach of an express warranty but also on a theory of breach of implied warranty and also negligence.
In November of 1980, Allis-Chalmers moved to dismiss Kin cheloe’s third-party petition on the grounds that, under Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), the principles of indemnity were no longer applicable to situations like that in this case and that instead comparative negligence applied. In December 1981, the court denied Allis-Chalmers’ motion to dismiss on the basis that plaintiff s claim against Kincheloe sounded only in express warranty and, therefore, comparative negligence was not applicable. On January 4, 1982, Allis-Chalmers filed a motion for summary judgment on Kincheloe’s third-party petition. On March 9, 1982, Kincheloe filed its own motion for summary judgment against the plaintiff s petition. Both motions were based upon similar grounds. Essentially, both Allis-Chalmers and Kincheloe argued that (1) the plaintiff s only claim rested on express warranty, and (2) the terms of the express warranty limited the plaintiff s remedies to repairing and replacing parts. Simply stated, it was the position of both Allis-Chalmers and Kincheloe that the plaintiff s petition asserted a claim based only on the theory of express warranty and that the language contained in the petition was not sufficient for plaintiff to assert a claim and rely on the theories of implied warranty and negligence. Plaintiff pointed out to the court that he had asserted his claim of negligence in his petition and that a claim of negligent repair is also sufficient under Kansas law to put defendant on notice that a breach of contract may exist. Plaintiff also argued to the court that his answers to interrogatories filed in July 1979, specifically stated that plaintiff relied on negligence and also breach of the implied warranties of merchantability and fitness for a particular purpose. These motions were taken under advisement by the court.
On April 8, 1983, approximately one year after the motions for summary judgment were argued, the trial court issued its memorandum decision granting both motions. In its conclusions, the court found that the case was originally filed as an express warranty case and that, under the allegations of the petition, plaintiff could not rely on the theories of implied warranty or negligence. The court stated that even if the court were to determine that the theory of implied warranty was applicable, the statute of limitations had long expired for the making of such a claim. Having been summarily thrown out of court, plaintiff filed a timely appeal to the appellate courts.
The primary point raised by plaintiff on the appeal is that the allegations of his petition were sufficient to raise claims based on the theory of breach of the implied warranty of merchantability and also on negligence. Hence, plaintiff maintains that the trial court erred in granting summary judgment in favor of defendant on the basis that breach of implied warranty and negligence were not properly raised in his petition. We have concluded that the plaintiff s position has merit, and that, under the basic concepts of pleading under the Kansas Code of Civil Procedure, the plaintiff was entitled to proceed in the action on the theory of both breach of implied warranty and negligence. In arriving at this conclusion, we have considered various sections of the Kansas Code of Civil Procedure and the Kansas decisions interpreting the same.
K.S.A. 60-208(a) provides:
“A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled.”
K.S.A. 60-208(e)(l) declares:
“Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”
Subsection (e)(2) states that a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses; and, further, that a party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both. K.S.A. 60-208(/) declares that “[a]ll pleadings shall be so construed as to do substantial justice.” Since the effective date of the Kansas Code of Civil Procedure on January 1, 1964, a host of Kansas decisions have interpreted the provisions of K.S.A. 60-208 to provide for a liberal construction of the pleadings with the emphasis on substance rather than form.
The following general principles have been established down through the years:
(1) The need for technical pleading has vanished. We now require only a bare-bones pleading which outlines the nature of the claim. Since discovery in, its broadest scope is available under the code of civil procedure, there is no need for technical pleadings. Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 222, 531 P.2d 41 (1975); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-208, p. 38 (1979).
(2) A petition which alleges a claim for relief upon any theory is sufficient to withstand a motion to dismiss lodged against it. In considering such a motion, dismissal should not be ordered merely because plaintiff s allegations do not support the legal theory upon which he intends to proceed, since the court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, Syl. ¶ 3, 520 P.2d 1197 (1974).
(3) It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle plaintiff to relief. Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 998, 667 P.2d 879 (1983); Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977); Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, Syl. ¶ 4, 620 P.2d 837 (1980).
(4) Under the Kansas Code of Civil Procedure, there is no requirement that pleadings state facts sufficient to constitute a cause of action. Rinsley v. Frydman, 221 Kan. 297, 301, 559 P.2d 334 (1977).
(5) 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. Griffith v. Stout Remodeling, Inc., 219 Kan. 408, Syl. ¶ 3, 548 P.2d 1238 (1976).
(6) Under K.S.A. 60-208, the pleader may allege or make contradictory or alternative statements until he finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop. Weaver v. Frazee, 219 Kan. 42, Syl. ¶ 5, 547 P.2d 1005 (1976). In an action for breach of implied warranty, a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts. One seeking to recover for breach of an implied warranty must eventually elect a definite theory before final submission to the trier of the the facts. Ware v. Christenberry, 7 Kan. App. 2d 1, 637 P.2d 452 (1981).
(7) Where negligence on the part of a contractor results in a breach of implied warranty, an action accrues in both tort and contract and the contractee may proceed on either or both theories, although his pleading need not state whether his action is based on tort or in contract. McFeeters v. Renollet, 210 Kan. 158, Syl. ¶ 3, 500 P.2d 47 (1972); Gilley v. Farmer, 207 Kan. 536, Syl. ¶ 4, 485 P.2d 1284 (1971); Crabb v. Swindler, Administratrix, 184 Kan. 501, 505, 337 P.2d 986 (1959).
(8) Where a statute provides a claim for relief, it is not necessary to plead the statute where the facts alleged are sufficient to bring the case within it. Monroe v. Darr, 214 Kan. 426; Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, 62, 612 P.2d 150 (1980).
(9) In considering a motion for summary judgment under K.S.A. 60-256, pleadings are to be liberally construed in favor of the party opposing the motion. Voth v. Chrysler Motor Corporation, 218 Kan. 644, Syl. ¶ 1, 545 P.2d 371 (1976).
(10) The Kansas Code of Civil Procedure contemplates utilization of the rules for discovery and a pretrial conference to formulate the ultimate issues of both fact and law to be determined in the case. See K.S.A. 60-216 and Supreme Court Rule No. 140 (232 Kan. cxlviii). Under the Kansas procedure, a pretrial order made pursuant to K.S.A. 60-216 supersedes the pleadings and controls the subsequent course of an action unless modified by the court to prevent manifest injustice. A pretrial order which specifies the issues to be tried supersedes and replaces the pleadings. Herrell v. Maddux, 217 Kan. 192, 535 P.2d 935 (1975).
(11) Interrogatories under K.S.A. 60-233 may be of better service than definiteness and certainty in pleadings, as, unlike pleadings, answers to interrogatories must be made under oath and the answers may be used at the trial by the interrogating party, subject to the rules of evidence. One purpose of this rule is to curtail the necessity of motions to make definite and certain. (See Advisory Committee Notes under K.S.A. 60-233, 1 Card’s Kansas C. Civ. Proc. 2d Annot. § 60-233, p. 202). Interrogatories that call for an opinion or contention that relates to the application of law to the facts (K.S.A. 60-233[b]) can be most helpful in narrowing and sharpening the issues, which is an important part of discovery. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-233, p. 203.
Since Kansas adopted its code of civil procedure in 1964, the requirement that a plaintiff must plead a cause of action and a definite theory is no longer recognized in this state. As noted by Judge Wisdom in Thompson v. Allstate Insurance Company, 476 F.2d 746, 749 (5th Cir. 1973), “Ancestor worship in the form of ritualistic pleadings has no more disciples. The time when the slip of a sergeant’s quill pen could spell death for a plaintiffs cause of action is past. Under the Federal Rules of Civil Procedure, a complaint is not an anagramatic exercise in which the pleader must find just exactly the prescribed combination of words and phrases.”
When we turn to the allegations of plaintiff s petition and his answers to the interrogatories submitted to him by defendant, it is clear that the trial court was overly technical and in error in sustaining defendant Kincheloe’s motion for summary judgment on the grounds that plaintiff s claim was based solely on express warranty, and, therefore, plaintiff could not proceed on the theories of breach of implied warranty and negligence. In his original petition plaintiff made it clear that his controversy with Kincheloe was over an allegedly defective combine which plaintiff purchased from Kincheloe. Although in his petition plaintiff referred to the written warranty attached to the contract of purchase, in paragraph 10 of his petition plaintiff alleged that the combine was defective in that it was not merchantable and free of defects and further, in paragraph 13, that defendant was negligent in its repair of the combine. In its answer, Kincheloe alleged as an affirmative defense that the repairs made by defendant were done in a competent, skillful and workmanlike manner and that the combine was merchantable and free of defects, and that defendant had complied with and abided by the terms of any and all warranties which relate to plaintiff s combine. It further must be noted that, in its third-party petition, Kincheloe alleged that if plaintiff should recover on his claim against Kincheloe it was entitled to recover from Allis-Chalmers any damages, because, if there was any breach of warranty, as alleged by plaintiff, any such breach was a breach of the express and implied warranties of Allis-Chalmers as the manufacturer.
If there was any question in defendant’s mind whether plaintiff was relying, at least in part, on a breach of both implied and express warranties, such question should have been put to rest by the answers of plaintiff to defendant’s interrogatories which are set forth above. It is clear from these answers to interrogatories that plaintiff was not relying exclusively upon express warranty but also upon breach of the implied warranties of merchantability and fitness for a specific purpose and also on a theory of negligence. We have no hesitancy whatsoever in holding that the allegations of the plaintiff s petition were sufficient to raise issues of breach of implied warranties and of negligence and that the trial court erred in granting defendant Kincheloe’s motion for summary judgment.
We also hold as erroneous the trial court’s conclusion that, assuming the theory of implied warranty was applicable, it was barred by the statute of limitations. The combine was delivered to plaintiff in May or early June of 1975. It first broke down in September of 1975. Plaintiff filed this action in October of 1977, well within the period of the statute of limitations. Hence, plaintiff s action based on breach of implied warranty was timely filed.
The plaintiff s second point on the appeal is that the trial court abused its discretion in ruling that plaintiff would not be allowed to amend his petition to add claims based on implied warranty and negligence. No amendment of the petition was required. In view of our disposition of the case on the first point, it is not necessary to consider other points raised by plaintiff on the appeal.
For the reasons set forth in the opinion, the judgment of the district court entering summary judgment in favor of defendant Kincheloe is reversed. The case is remanded to the district court with directions to proceed with the case in accordance with the Kansas Code of Civil Procedure and the pertinent Rules of the Kansas Supreme Court.
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The opinion of the court was delivered by
Herd, J.:
The appellant, Tamarac Development Co., appealed from an order granting summary judgment in favor of the appellee, Delamater, Freund & Associates. The trial court determined as a matter of law that Tamarac’s cause of action was one in tort rather than contract and thus barred by the two-year statute of limitations. The Court of Appeals in a per curiam decision affirmed the trial court. We granted review.
Appellant is a developer of residential subdivisions. Appellee is an engineering and architectural firm. In 1976 and 1977, the parties entered into various contracts whereby appellee was to provide engineering and architectural services for the development of a mobile home park. There is no allegation that any of the written contracts were breached. Appellant alleges appellee breached an oral contract to supervise the grading construction and to check the grades on completion to insure their accuracy. After payment to the grading contractor, it was discovered too much dirt had been removed, creating drainage problems. Appellant was forced to expend a considerable sum of money to bring the park to grade as a result.
Appellant originally alleged negligence, but later amended its petition alleging breach of contract. There is no dispute that if the action is one for negligence it is barred by the two-year statute of limitations of K.S.A. 60-513. Conversely, if the action is one for breach of contract, it is not barred by the three-year limitation of K.S.A. 60-512.
The only point on appeal is whether the district court erred in holding appellants did not have a cause of action in contract. The issue of whether a cause of action sounds in contract or tort, or both, has been before this court numerous times. These cases, however, when applied to the instant case are inconsistent. The inconsistencies in this area of law have been confirmed by Professor Prosser when he stated:
“Frequently, where either tort or contract will lie and inconsistent rules of law apply to the two actions, the question arises whether the plaintiff may elect freely which he will bring, or whether the court must itself decide that on the facts pleaded and proved the ‘gist’ or ‘gravamen’ of his cause of action is one or the other. As to this the decisions are in considerable confusion, and it is difficult to generalize.
“Where the particular point at issue is one of adjective law only, affecting the suit or its procedure, but not the merits of the cause of action, the courts have tended to be quite liberal in giving the plaintiff his freedom of choice, and have upheld his action of tort or contract as he has seen fit to bring it. Likewise where the point is one affecting substantive rights, but the claim is one for damages to property or to pecuniary interests only, the tendency has been, with some occasional dissent, to allow the election. But when the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading. This had the odd result that the negligence of an attorney will survive the death of his client, while that of a physician is oft interred with his patient’s bones. Actually the courts appear to have preserved a great deal of flexibility, and to have been influenced in their decisions by their attitude toward the rule of law in question.” Prosser, The Law of Torts § 92, pp. 621-22 (4th ed. 1971).
We have consistently held: “The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising or imposed by agreement; whereas, a tort is a violation of a duty imposed by law.” Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, Syl. ¶ 5, 666 P.2d 192 (1983). See also Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982).
The problem with this test, however, is in some cases, such as this, both standards apply. The appellant argues there was an oral agreement between the parties that appellees would insure the grading to be accurate. This promise could be construed to be either a contract for a specific result — accurate grading — or an implied warranty to inspect and supervise in a workmanlike manner. Both are contract actions. The appellee argues the inspection called for was merely performed negligently, which is a violation of a duty to use reasonable care imposed in common law upon professionals. Appellee’s argument, therefore, is that this is an architect malpractice action and malpractice actions lie only in tort.
Case law in Kansas supports both arguments. Appellee argues the cases which hold a breach of a legal duty by a professional is a tort action are controlling. See Brueck v. Krings, 230 Kan. 466, 638 P.2d 904 (1982); Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976); Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62, rev. denied 225 Kan. 843 (1977).
Appellee’s citations are distinguishable, however. In each of the cases, the court cited an actual legal duty owed by the professional to the client. In Malone, a case dealing with a doctor’s negligent treatment of a patient, the court held: “Certain duties and obligations are imposed upon physicians ánd hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment.” 220 Kan. at 274-75. See also PIK Civ. 2d 15.01. Brueck involved an accounting firm which had performed an audit. In holding the action was in tort this court stated:
“In the case now before us, plaintiffs do not claim that Peat, Marwick failed to perform its contract; the audits for the years 1971,1972 and 1973 were performed, completed and delivered. The wrongs alleged by the plaintiffs were that Peat, Marwick failed to perform those audits in accordance with the duties imposed on it, not by the specific terms of the contracts, but by the Kansas savings and loan code, the Kansas securities law, and the professional standards of the accounting profession.” 230 Kan. at 469-70.
In the instant case, while an architect’s license may be taken away for “gross negligence, incompetency, or misconduct” in the practice of the profession (K.S.A. 74-7026), there is not a specific statute, as in Brueck, establishing a duty owed by an architect. Since there is not a breach of a legal duty, as in Malone, the action in this case is open to construction.
Though professionals are liable for malpractice for breach of a legal duty, that does not preclude them from contracting to perform a duty higher than the one imposed by law. Such was the holding in Noel v. Proud, 189 Kan. 6, 367 P.2d 61 (1961). Noel was explained by this court in a later case:
“[T]he tort statute of limitations against a doctor of medicine had already expired when suit was brought by the patient. The petition alleged breach of express warranty by the doctor that surgery would not worsen the patient’s condition. This court held that the three year statute of limitations for an oral contract was applicable to the cause of action stated, rejecting the contention that irrespective of any express warranties, the only cause of action predicated upon a physician-patient relationship must sound in tort.” Juhnke v. Hess, 211 Kan. 438, 440, 506 P.2d 1142 (1973).
There is dicta in Malone which also supports the proposition a professional may contract for a specific result.
“Physicians, as well as hospitals, may enter into express contracts by which they bind themselves to warrant the success of treatment, or to otherwise obligate themselves above and beyond their ordinary duties. Such contracts may form the basis for breach of contract actions.” 220 Kan. at 374.
Thus, according to Malone and Proud, if the architectural firm in this case contracted to provide a specific result, rather than just contracting to plan and inspect the grading work in general, the action could be on the contract rather than in tort.
On the other hand, in an action against a general building contractor for improper construction of a home, we held the suit could be either in tort or contract or both. In Ware v. Christenberry, 7 Kan. App. 2d 1, 5, 637 P.2d 452 (1981), Justice Holmes wrote for the Court of Appeals, “it now appears settled that in Kansas a person suffering damage from breach of an implied warranty may proceed upon either a contract or tort theory, or both, in initially framing his cause of action.”
In the instant case the appellant argues that in addition to the oral contract there was an implied warranty of workmanlike performance. The existence of such warranty was recognized by this court in Gilley v. Farmer, 207 Kan. 536, 542, 485 P.2d 1284 (1971), where the court stated:
“[T]his court has been consistent in holding that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. [Citation omitted.]
“Where negligence on the part of the contractor results in a breach of the implied warranty, the breach may be tortious in origin, but it also gives rise to a cause of action ex contractu. An action in tort may likewise be available to the contractee and he may proceed against the contractor either in tort or in contract; or he may proceed on both theories.”
Seé also Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986 (1959) (breach of an implied warranty to do plumbing in a workmanlike manner may be contract or tort action); and Scantlin v. Superior Homes, Inc., 6 Kan. App. 2d 144, 627 P.2d 825 (1981) (house contractor has implied contract to build in a workmanlike manner). The appellant argues this warranty was breached by the architect’s failure to insure the grading was made to the elevations called for in the blueprints. Based on our decision in Malone v. University of Kansas Medical Center, 220 Kan. 371, it can be said certain professionals, such as doctors and lawyers, are not subject to such an implied warranty. However, an architect and an engineer stand in much different posture as to insuring a given result than does a doctor or lawyer. The work performed by architects and engineers is an exact science; that performed by doctors and lawyers is not. A person who contracts with an architect or engineer for a building of a certain size and elevation has a right to expect an exact result. See, Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 (1983). The duty of the architect is so strong and inherent in the task, we hold it gives rise to an implied warranty of workmanlike performance. An injured party under these circumstances may choose his remedy from express contract (if applicable), implied warranty or negligence.
We find the trial court erred in granting summary judgment on the ground this case is a tort action only and the statute of limitations had passed. Summary judgment is warranted only when it is conclusively established there remain no issues of material fact. Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980).
The record shows representatives from both parties stated the oral contract called for a specific result.
The testimony of the witnesses supports not only an oral contract for a specific result but also breach of an implied warranty. The granting of summary judgment was premature, since there remains an unresolved issue of fact.
We reverse the judgment of the trial court and the Court of Appeals and remand this case for trial consistent with this opinion. | [
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The opinion of the court was delivered by
Lockett, J.:
This action was commenced by the landowners to cancel an oil and gas lease for violation of the lease covenants to produce or develop and operate the premises. The trial court partially granted the landowners summary judgment, finding the lessees had failed to produce oil or gas in paying quantities. The remaining issues of whether the lessees’ efforts to operate or develop the leased premises had extended the primary term were tried to the court. The trial court found in favor of the lessors, voiding the oil and gas lease, ordering the lessees to plug the wells and restore the premises, and awarding statutory damages and attorney fees pursuant to K.S.A. 55-202. Lessees appeal.
The plaintiffs/appellees, A. W. Adolph and Delia Adolph (lessors), are the owners of 250 acres of land situated in Franklin County, Kansas. Defendants/appellants (lessees) are the successors to the original lessees.
July 12, 1979, Charles Gorges d/b/a Pioneer Oil Company obtained an oil and gas lease from the landowners. The lease was on a printed form; all typed portions of the lease were prepared in advance by Charles Gorges, Don Gorges, Mr. Tillery or Mr. Schmanke. The landowners required certain changes to the oil and gas lease agreement: (1) the term of the lease be set at one year, and (2) the deferral for drilling be advanced from February 12, 1980, to September 12, 1979. The modifications were approved by the parties. By agreement with Charles Gorges, Tillery and Schmanke, each had an interest in the well for their efforts in obtaining the lease for Pioneer. The landowners were unaware of this agreement. In February of 1980, the lease was assigned by Pioneer Oil Company to Lloyd R. Nuckolls. The defendants/appellants acquired their interest in the lease by later assignments.
Lessees commenced drilling within sixty days after signing the lease. A core sample was obtained and when completed the well was pumped. Well No. 2 was drilled and placed in production in May, 1980. Permanent tanks were set north of the road that divided the lease. Wells No. 1 and No. 2 produced enormous quantities of salt water which contained only a slight scum of oil. During July, 1980, thirteen loads of water, at sixty-six barrels each, were hauled off the lease. Seventy-six barrels of oil were sold. Because of the heavy gravity of the oil, an adjustment based upon cost to make the oil marketable was required. After adjustment the oil purchaser paid for 22.8 barrels. This was the only production obtained between the lease signing and the forfeiture of the lease by the court.
In January, 1981, lessees decided to drill wells No. 3 and No. 4. Well No. 3 was commenced about February 25, 1981, and completed in April or May of that year. It produced more salt water and little oil. Well No. 4 was completed within two to four weeks after No. 3. Well No. 4 caved in and had to be dug and washed out. Each well, when placed in production, only increased the output of salt water.
In an effort to increase production of oil from the lease, the lessees attempted the following: (1) continued pumping to reduce the salt water; (2) prepared an existing well from a prior-lease for injection of salt water; no permit was obtained by the lessee; (3) tried K-4 chemical, which caused the oil to thin momentarily; and (4) installed gas lock anchors with an extra ball to keep the wells from sanding up. The lessees contacted individuals to obtain advice on increasing production. A student from Oklahoma University made an analysis of the lease which became his master’s thesis for the university; this thesis resulted in the drilling of wells No. 3 and No. 4. Plans for increasing the pump size on each well and water flooding the field were contemplated by the lessees.
Cold and wet weather interfered with the lessees’ attempts to increase production. Pump motors burned out, lines froze, wet ground impeded efforts to increase production, and during the summer of 1981, the area was flooded.
The trial court determined that lessees had actually two plans for development. Plan No. 1 was to “pump it, pump it, pump it” and see if the salt water could be depleted. Plan No. 2 was to use a bigger pump jack. Neither plan succeeded. Due to repeated motor burnouts, plan No. 1 was not successful. Plan No. 2 was never initiated.
Personality conflicts developed between several of the lessees and A. W. Adolph. Adolph’s attitude was described as congenial one day and demanding the next. At one point, Adolph had been hired by the lessees to assist in pumping. When he was ordered to clean up an oil spill on his land, Adolph lost his temper. He requested the property not be rutted when wet and that gates be kept closed. The court determined Adolph’s demands were not unusual for a landowner. No threats of bodily harm were directed by Adolph to any person. None of the lessees’ efforts were totally frustrated by his alleged interference.
Lessors determined the lessees had failed to comply with the expressed covenants of the lease agreement. Beginning January 27,1982, the lessors published their intent to cancel the lease by placing such notice in the Ottawa Herald for three consecutive weeks pursuant to K.S.A. 55-201. In March, 1982, A. W. Adolph directly notified the lessees of his intent to cancel the lease. The lessors filed this action May 11,1982. They requested the oil and gas lease be declared void, their title be quieted, their land be restored to its pre-drilling condition, and statutory damages allowed under K.S.A. 55-202.
The lessors filed a motion for summary judgment. The trial court granted partial summary judgment, finding the lessees had not produced oil and gas in paying quantities. The trial court did not determine whether the lease property was being developed and operated as required under the lease agreement. The remaining issue was tried to the court on April 12 and 14, 1983. The trial court found for the lessors, deciding the oil and gas lease was void, and granted the lessors their requested remedies. The lessees appeal.
The appellants’ major contention is that the habendum clause in the lease does not require production in paying quantities for extension of the lease beyond the primary term. The appellants argue production is not required since they have developed and operated the leased property as required.
The habendum clause in this lease provides:
“It is agreed that this lease shall remain in full force for a term of one years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee, or the premises are being developed or operated.”
The habendum clause was printed on a form lease provided by Tillery or Schmanke. Similar clauses from leases and deeds have been cited in other Kansas cases but the exact question raised by the appellants has not been previously addressed. See, e.g., Pray v. Premier Petroleum, Inc., 233 Kan. 351, 662 P.2d 255 (1983); Classen v. Federal Land Bank of Wichita, 228 Kan. 426, 617 P.2d 1255 (1980), 9 A.L.R. 4th 1106.
It must be remembered that the large expense incident to exploration and development is born by the lessees, not the lessors. Such expense justifies the lessees to proceed with rea sonable caution and proper regard for their own interests, as well as the lessors’. There is no implied duty on the lessees to engage in an undertaking which is not profitable to them even though it might, or would, result in a profit to thé lessors. It is only to the end of mutual benefit or profit to both the lessors and lessees that the implied covenants require reasonable diligence to produce and develop.
The terms “produced and developed” have been discussed previously by the court when reviewing expressed and implied covenants. This court, when speaking of these covenants, places great emphasis on the individual property rights and construes oil and gas leases to promote development and prevent delay upon the theory that the lessor has a right to have his land developed as rapidly as possible. To insure that end when a lease itself does not contain specific expressions regarding production or development, the law determines the intention of the parties and the court has imposed such duties upon the lessees. The legislature as a matter of public policy has by statute included the implied covenant to explore and develop all oil and gas leases when such covenants are not contained in the lease. K.S.A. 55-223.
Whether a lessee has performed his duties under the expressed or implied covenants is a question of fact. In 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. Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P.2d 95 (1943).
When the trial court heard the lessors’ request for summary judgment, it divided the habendum clause of the lease into two parts. It first determined under the motion for summary judgment, the lessees had not produced oil and gas within the term specified in the lease. The second question whether the premises had been developed or operated was to be determined at trial.
The trial court was correct when it granted the lessors’ motion for summary judgment. The requirement in the habendum clause of the lease of production in paying quantities had not been met. Under the lease, the primary term of one year had expired. For the lease to be held after the expiration of the primary term by production required that the production be in paying quantities. To determine if there is production in paying quantities, one applies an objective test. The objective test is based upon a mathematical test. For an in-depth discussion of the objective test see Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 314-15, 553 P.2d 885 (1976).
Two factual questions remained to be determined at the trial: (1) what were the circumstances surrounding the preparation and the signing of the lease by the plaintiff; and (2) had the activity of the lessees to develop or operate the premises extended the primary term of the lease?
The lessees claim, where practical, the court should avoid an interpretation against the development of the resources of the property involved, citing Betterment Co. v. Blaes, 75 Kan. 69, 88 Pac. 555 (1907).
The trial court found that the lease had been prepared by either Charles or Don Gorges, operators of Pioneer Oil, or by Ray Tillery and/or Roger Schmanke, promoters who received an overriding royalty interest for their efforts. The lessor had not prepared the lease agreement.
The lessor who alleges breach of the covenant to develop or operate, contained in the habendum clause of the oil and gas lease, has the burden to show by substantial, competent evidence the lessee has breached the agreement. He must prove the lessee has not acted with reasonable diligence under the circumstances.
Familiar rules governing the construction of oil and gas leases are: the intent of the parties is the primary question; meaning should be ascertained by examining the document from all four corners and by considering all the pertinent provisions, rather than by a critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof. Jackson v. Farmer, 225 Kan. 732, 594 P.2d 177 (1979). Because the lessees had prepared the lease, the trial court construed any ambiguities in the terms of the lease favorably to the lessors.
Development has been defined as “[t]he drilling and bringing into production of wells in addition to the exploratory or discovery well on a lease.” 8 Williams and Meyers, Oil and Gas Law, p. 185 (1982).
The same volume contains this definition of operation:
“This term, frequently found in oil and gas leases, is not a term of art with a clearly understood definition. In most instances it appears to refer to activity leading to the production of oil and gas.” 8 Williams and Meyers, p. 507.
All parties cite an Oklahoma case in which the phrase “develop or operate” is construed. In Prowant v. Sealy, 77 Okla. 244, 187 Pac. 235 (1919), the Oklahoma Supreme Court construed the phrase “develop or operate” to mean that if drilling operations were commenced on the premises within the primary term of the lease for the purpose of discovering oil or gas and were still being prosecuted in good faith at the expiration of the primary term, the primary term would be extended during the continuance of such drilling operations, or in the case of the discovery of oil or gas, as long as the same was produced.
A treatise on oil and gas law, 2 Summers, Oil & Gas § 300.1, p. 252 (rev. perm. ed. 1959) contains this statement:
“A first form is limited to a change in the habendum by the addition of such expressions as ‘said premises developed and operated’, ‘operations are continued thereon’ or ‘as long after the commencement of operations as said premises are being operated for the production of oil or gas.’ These clauses have been construed as meaning that if a lessee commences a well within the primary term of a lease and carries on the drilling operations diligently and in good faith, although he does not actually complete the well and secure production until after the end of the primary term, the lease remains in force until he completes the well, and if he secured production therefrom, as long as production in paying quantities continues.”
See Statex Petroleum v. Petroleum, Inc., 308 F.2d 815 (10th Cir. 1962).
The question here is whether the lessees’ development and operations were being prosecuted diligently and in good faith when the lessors sought to cancel the lease. The habendum clause in the lease required the lessees to meet this standard, and satisfying that standard depends on the facts of each case.
The trial court determined the lessees had failed to develop or operate the lease. The only results of the lessees’ efforts were the production of too much salt water and too little oil. The possi bility of future development and operation by the lessees depended upon prospective but unassured profits and possibilities. Under the circumstances the trial court’s termination of the lease was appropriate.
The lessees claim A. W. Adolph did not attempt to cancel the lease after the primary term of one year; that the lessors’ silence gave rise to estoppel; and under the circumstances lessors should have made a disclosure. Service Oil Co., Inc. v. White, 218 Kan. 87, 97, 542 P.2d 652 (1975). The lessees contend Adolph should be estopped from canceling the lease because they expended funds for drilling wells No. 3 and No. 4 in reliance on Adolph’s acts, which lessors’ acts led the lessees to believe the lease would be extended beyond the primary term. In addition, lessees contend, the lessors by prohibiting certain people from coming onto the land interfered with the drilling operations.
Equitable estoppel was discussed in Iola State Bank v. Biggs, 233 Kan. 450, Syl. ¶ 4, 662 P.2d 563 (1983), where we stated:
“Equitable estoppel is the effect of the voluntary conduct of the person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it has a duty to speak, induced it to believe certain facts existed. It must show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.”
In the case of Indian Territory Operating v. Bridger Petro. Corp., 500 F. Supp. 449, 450-51 (W.D. Okla. 1980), the federal district court when discussing estoppel stated:
“The courts have long recognized that acts of the lessor may prevent him from claiming a termination or cancellation of an oil and gas lease against his lessee. Eggleson v. McCasland, 98 F. Supp. 693 (E.D. Okl. 1951) (demand for further drilling, receipt of royalty payments); Eagle Oil Co. v. Sinclair Prairie Oil Co., 24 F. Supp. 612 (N.D. Okl. 1938), aff'd 105 F.2d 710 (10th Cir. 1939) (accepting royalty payments, executing division orders); Durkee v. Hazan, 452 P.2d 803 (Okl. 1968) (acquiescence in allegedly altered lease and acceptance of royalty payments); Labbe v. Magnolia Petroleum Co., 350 S.W.2d 873 (Tex. Civ. App. 1961) (recognizing validity of lease after lapse); Anderson v. Talley, 199 Okl. 491, 187 P.2d 206 (Okl. 1947) (receipt of royalty payments with knowledge of breach); Cadillac Oil & Gas Co. v. Harrison, 196 Ky. 290, 244 S.W. 669 (1922) (acquiescence in good faith development after expiration of lease); Scott v. Signal Oil Co., 35 Okl. 172, 128 P. 694 (1912) (acceptance of royalty payments from assignee, even though assignment was void).”
See Bloom v. Rugh, 98 Kan. 589, 160 Pac. 1135 (1916).
There is no definite rule governing estoppel which can be applied to every situation. There are few, if any, relationships of which the law takes cognizance where all are not affected by some degree by the principles of estoppel. Since the principles of estoppel run through all transactions, it cannot be determined by any fixed or definite rule. Where the question is raised each case must be determined on its own individual facts. The trial court determined under these facts the lessors were not es-topped.
The trial court determined from the facts: (1) the lessees had failed to produce oil or gas in paying quantities; (2) the lessees had failed to develop or operate the lease; and (3) the lessors were not estopped by their actions from terminating the lease. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal 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. In determining whether the trial court’s findings of fact are supported by the evidence, it is not the function of the appellate court to weigh conflicting evidence, pass upon the credibility of the witnesses, or redetermine the questions of fact. The trial court’s findings were supported by substantial competent evidence.
Lessees contend statutory damages and attorney fees (K.S.A. 55-202) should not have been awarded by the trial court.
The lease provided for a term of one year. Contained in the lease were three conditions which, if any one of the conditions was performed by the lessees, would extend this lease beyond the one-year term. The three conditions were: (1) production of oil and gas; (2) development of the lease; and (3) operation of the lease.
The trial court determined that the lessees had failed to produce oil and gas in paying quantities. The court further found the lessees had failed to use reasonable diligence expected of an operator of ordinary prudence in developing or operating the lease, thereby violating the lease’s expressed covenants. The court, because of lessees’ failure, extinguished the life of the lease and declared the lease forfeited.
Lessors gave notice to the lessees, as required by K.S.A. 55-201, of their failure to comply with the expressed covenants of the lease, causing a forfeiture and voiding the lease. The lessees denied they had failed to comply with the terms of the lease and that their performance of those terms had extended the lease beyond the one year primary term. The issues were raised and the lessors filed this action to declare the lease agreement forfeited and void.
Lessors prevailed in their action. The lessors obtained the release from the court which declared the lease had been forfeited by lessees’ failure to comply with the terms of the lease. K.S.A. 55-202 allows the trial court to award a successful lessor the sum of $100.00 as damages, and all costs, together with reasonable attorney fees for preparing and prosecuting the suit, plus additional damages when the evidence in the case warrants. In addition to the forfeiture of the lease, the trial judge awarded $100.00 as damages, the cost deposit of $35.00, deposition expenses of $171.00, publication expenses of $106.08, and attorney fees in the amount of $4,000.00.
The awarding of damages, costs, attorney fees and additional damages under K.S.A. 55-202 is discretionary with the trial court. Where the lessee claims the trial court has abused its discretion by such award, the burden of proving the abuse is upon the lessee. Here the judicial discretion was exercised within the bounds of reason and justice. The award by the trial court was not an abuse of discretion.
Judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the State on a question reserved following the conviction of the defendant, James Sterling, on two counts of criminal damage to property (K.S.A. 21-3720[l][c]). The sole issue presented in the case is whether criminal damage to property, as provided for in K.S.A. 21-3720(l)(a), is a specific intent crime to which voluntary intoxication is a defense so as to require an instruction on voluntary intoxication in an appropriate case.
The record does not contain evidence of the factual circumstances surrounding the commission of the offenses by the defendant. It appears from the information, however, that the defendant was charged in count No. 1 with willfully damaging a 1979 Chevrolet Impala automobile belonging to another and without the consent of the owner. In count No. 2, defendant was charged with willfully damaging a 1972 Chevrolet pickup truck •belonging to another and without the consent of the owner. In each instance, the damages were alleged to be more than $100, so each count of the information charged a felony. It appears from the prosecutor’s brief that the district attorney in Sedgwick County tries a large number of cases where the defendant is charged with criminal damage to property, and that the courts of that district have insisted in instructing on voluntary intoxication.
At the outset, it would be helpful to consider the Kansas statutes and case law pertaining to the subject of criminal intent and the effect of voluntary intoxication thereon. The subject of general intent in criminal cases is covered by K.S.A. 21-3201 which provides as follows:
“21-3201. Criminal intent. (1) Except as provided by sections 21-3202, 21-3204, and 21-3405, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner.
“(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms ‘knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose,’ are included within the term ‘willful.’
“(3) Wanton conduct is conduct done 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 such conduct. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘recklessness’ are included within the term ‘wantonness’ as used in this code.”
Under K.S.A. 21-3201, subject to the statutory exceptions, the prosecution has the burden of showing that the criminal conduct of the accused person was either willful or wanton. Where a willful act is involved, 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. See PIK Crim. 2d 54.01-A.
In addition to the general criminal intent required in every crime, certain crimes include an additional specific intent as an essential element of the offense. They are commonly referred to as “specific intent crimes.” The distinction between a general intent crime and a crime of specific intent is discussed in some depth in State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), where syllabus ¶ 7 states as follows:
“The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.”
The opinion points out that the elements of intent required for various statutory crimes vary according to the particular crime. Where a specific intent is a required element of the crime, it must be included in the charge and in the instructions of the court covering the separate elements of that particular crime. State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 (1973).
In some criminal cases, voluntary intoxication may be raised as a defense. The defense of voluntary intoxication is covered by K.S.A. 21-3208(2) which provides:
“(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
K.S.A. 21-3208 is a restatement of the law of Kansas which has traditionally been applied by the Kansas courts. In State v. Wells, 54 Kan. 161, 172, 37 Pac. 1005 (1894), it is observed that it is universally held that intoxication voluntarily induced is neither an excuse for nor a justification of crime. In State v. Rumble, 81 Kan. 16, 105 Pac. 1 (1909), the defendant was convicted of murder in the second degree. It was admitted that the defendant shot and killed a total stranger without any provocation or cause. The theory of the defense was that the defendant was insane. The State maintained that he was merely intoxicated. The trial court refused to instruct regarding the effect of drunkenness. On appeal, the Supreme Court held that drunkenness may reduce a homicide from murder to manslaughter, if it is so extreme as to prevent the existence of an intention to kill. The court stated that drunkenness, if so extreme as to make the existence of a definite purpose impossible, may be a defense to any crime of which a specific design is an essential element. However, the fact that drunkenness may have rendered one charged with a crime incapable of knowing the nature and quality of his act, or of distinguishing between right and wrong, does not constitute a defense. Thus at an early date, this court held that voluntary drunkenness is not a defense to a general intent crime but may be a defense to a specific intent crime. See also State v. Guthridge, 88 Kan. 846, 129 Pac. 1143 (1913).
The same basic principle was applied in State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975). There the defendant was convicted of aggravated assault on a law enforcement officer (K.S.A. 21-3411). On appeal, the defendant complained that the trial court had refused to instruct on voluntary intoxication. Defendant argued that the crime of aggravated assault on a police officer required a particular intent and thus intoxication should be taken into consideration in determining a defendant’s intent or state of mind. The court rejected this contention, holding that when an accused is charged with aggravated assault with a deadly weapon under K.S.A. 21-3410(c), no specific intent is required. The State was only required to prove that the conduct of the person accused constituted either a willful or wanton act. Since a specific intent was not an element of the crime, an instruction on voluntary intoxication was not required.
In State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980), the defendants, McDaniel and Owens, were charged with aggravated robbery. Both of the defendants asserted the defense of voluntary intoxication. The trial court instructed the jury that voluntary intoxication was not a defense to the crime of aggravated robbery. On appeal, this court held that the instruction was proper as to McDaniel because voluntary intoxication is not a defense to a general intent crime and aggravated robbery is not a specific intent crime where the defendant participates as a principal. As to defendant Owens, however, all of the evidence indicated that Owens was only an aider and abettor and to prove Owens guilty of aiding and abetting, the prosecution had the burden of showing that the defendant willfully and knowingly associated himself with the criminal acts of McDaniel and willfully participated in them. The court stated that, since Owens could only be found guilty as an aider and abettor, his specific intent to participate was an issue in the case, and voluntary intoxication might indicate the absence of the specific intent and, hence, be a defense. Accordingly, it was held that the trial court erred in not instructing the jury on voluntary intoxication, and the conviction of Owens was reversed.
From the statutes and cases cited above, it is clear that the law is now well settled that voluntary intoxication is not a defense to a general intent crime, and a jury instruction thereon would not ordinarily be appropriate or required. Where, however, the crime charged requires, as an element thereof, a specific intent, voluntary intoxication may be a defense and an instruction thereon is required where there is evidence to support that defense.
With these general principles in mind, we turn to the issue presented in this case: Is criminal damage to property under K.S.A. 21-3720(l)(a) a specific intent crime to which voluntary intoxication is a defense so as to require an instruction on voluntary intoxication? K.S.A. 21-3720 provides in part as follows:
“21-3720. Criminal damage to property. (1) Criminal damage to property is by means other than by fire or explosive:
“(a) Willfully injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person; or
“(b) Injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.” (Emphasis supplied.)
The issue raised in this case applies only to subsection (l)(a) of the statute. It should be noted that that subsection requires, in substance, that there be a willful injury or damage to property in which another has an interest without the consent of such other person. There is no specific intent required as an element of the offense. This section clearly falls into the category of a general intent crime, and, under the authorities cited above, an instruction on voluntary intoxication would not be appropriate where the evidence shows a defendant participated as the principal who committed that offense. However, voluntary intoxication may be a defense where the evidence shows that the defendant did not participate as a principal, but only as an aider and abettor. Under those circumstances, the specific intent of the defendant may be a proper issue in the case. State v. McDaniel & Owens, 228 Kan. 172.
Voluntary intoxication may, however, be a defense to criminal damage to property as defined in K.S.A. 21-3720(l)(fc). Under that subsection, the State must prove that the defendant injured, damaged, or substantially impaired the use of any property with intent to injure or defraud an insurer or lienholder. That section is designed to cover situations where a person injures or damages property with the fraudulent intent to collect insurance proceeds from an insurer or with the intent to injure or defraud a person who has a security interest in the property. K.S.A. 21-3720(l)(h) thus requires a specific intent in addition to the general intent.
In the present case, the defendant was charged with criminal damage to property under K.S.A. 21-3720(l)(c). The trial court gave an instruction on voluntary intoxication over the State’s objection. For the reasons set forth above, we hold that the trial court’s instruction on voluntary intoxication, patterned after PIK Crim. 2d 54.12, was not required nor was it appropriate under the factual circumstances involved in the case.
The appeal of the State is sustained. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the city of Overland Park, pursuant to K.S.A. 22-3602(b)(l), from an order of the district court of Johnson County dismissing a complaint charging defendant, Donald H. Barron, with driving while under the influence of intoxicating liquor (DUI). Defendant was convicted of DUI in municipal court. He appealed to the district court for a trial de novo. Prior to trial, defendant moved to dismiss the city’s complaint on the basis that he had been subjected to double jeopardy in the municipal court proceedings. The district court sustained defendant’s motion, and this appeal followed.
The facts in this case are not greatly in dispute. However, there is some disagreement between counsel as to certain proceedings in municipal court which were not transcribed. The municipal judge prepared handwritten minutes of the proceedings as they occurred. In addition, the court’s journal entry of judgment and defendant’s notice of appeal to the district court show what happened in municipal court. The following facts are clearly established: On August 27, 1982, defendant was charged with DUI in violation of an ordinance of the city of Overland Park. On September 1, 1982, defendant was arraigned on the charge and an attorney was appointed to represent defendant, who entered a plea of not guilty. The case was set for trial on September 16, 1982. The city moved for a continuance, which motion was granted over defendant’s objection. The case was then set for trial on October 19, 1982. On October 19, 1982, the city called its first witness, a police officer, to the stand. He was sworn and then stated his name and occupation and where he was on August 27, 1982. At that point, counsel for defendant requested the right to interrogate the officer before he testified further. This request was granted by the court. The interrogation revealed that the officer had been approached by a pedestrian in a parking lot who advised the officer that the defendant’s car had been involved in a hit-and-run accident involving another car parked in the parking lot. The officer testified that, based on this hearsay information, he stopped defendant’s car, at which time he smelled alcohol on defendant’s breath. He, thereupon, arrested and charged defendant with DUI.
Following this questioning, defense counsel objected to any further testimony from the officer involving the charge, because it was based upon hearsay evidence, and moved for suppression of further testimony from the officer. The city prosecutor and defense counsel presented oral arguments to the court. According to the judge’s minutes, the municipal court ordered a continuance in the case and granted defendant 20 days to file a brief on the suppression issue and ten days thereafter for the city to file its reply brief. The court continued the case to November 30, 1982. On that date, the municipal court denied defendant’s motion to suppress and, at the request of the city, continued the case for trial to December 28,1982. At that time, the city recalled the officer to the stand and presented additional evidence. Defendant offered no evidence. The judge’s minutes show that the court found defendant guilty of the charge and assessed a penalty of 30 days in jail and a fine of $200. Defendant’s license was restricted for 90 days “in, from & about work” and “to attend alcohol ed. &/or treatment sessions.” Defendant was ordered to enroll in and complete an alcohol treatment program. The court set the appeal bond in the amount of $200. An entry in the judge’s minutes states: “Penalty stayed for 30 days.”
The journal entry of judgment dated December 28, 1982, prepared by and signed by the municipal court judge, shows clearly that, on that date, the court found defendant guilty of DUI in violation of the city ordinance and that the court entered judgment of sentence in accordance with the court’s minutes as set forth above. Appeal bond was set for $200 and the penalty was stayed for 30 days. Thereafter, on January 20, 1983, an appeal bond of $200 was posted by defendant. On January 24, 1983, a notice of appeal was filed by the defendant providing as follows:
“Notice is hereby given that Donald H. Barron appeals from the judgment of the City of Overland Park, Kansas, entered on December 28, 1982, finding the Defendant guilty of a violation of Overland Park Municipal Code 12.04.030 and 11.04.040.
“The appeal is hereby taken to the District Court of Johnson County, Kansas as a matter of right.” (Emphasis supplied.)
Thereafter, on February 9, 1983, defendant appeared in district court and the case was set for the March 15, 1983, docket call. The case was continued on several occasions, until it finally came up for trial on May 16, 1983. At that time, the city and the defendant suggested each had pretrial motions to present. Defendant was allowed to proceed first with his motions. He first made a motion to dismiss the complaint on the basis of double jeopardy in municipal court proceedings. After oral argument of the motion, the judge sustained defendant’s motion and dismissed the complaint. The city appealed.
At the outset, the city raises a jurisdictional issue, contending that the district court was without jurisdiction to hear and rule on defendant’s motion to dismiss or even to consider defendant’s appeal, because the appeal was not timely filed in compliance with the Kansas statutes pertaining to appeals frorri municipal court. The record does not show that this issue was ever raised in district court by the city. Defendant argues, in opposition to this jurisdictional issue, that the issue was waived by the city and cannot be considered for the first time in an appellate court. The city maintains that it was never provided an opportunity to present its motions.
In State v. Minor, 197 Kan. 296, 300, 416 P.2d 724 (1966), this court held that a judgment which is void for want of jurisdiction may be attacked at any time and may be vacated because it is a nullity. It was further held that the supreme court may, on its own motion, raise the issue of jurisdiction to hear an appeal pending before it.
In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980), states in Syllabus ¶ 8:
“It is the duty of this court to raise the question of jurisdiction on its own motion; and where the district court had no jurisdiction, this court does not acquire jurisdiction over the subject matter upon appeal.”
To the same effect see Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972). It is clear from these cases that this court has jurisdiction in this case to consider the jurisdictional issue raised by the city, even if that issue was not raised by the city in district court.
We should also consider certain statutory provisions pertaining to proceedings in municipal court and appeals from a municipal court to the district court. K.S.A. 12-4501 provides that an accused in municipal court entering a plea of not guilty shall be tried on the earliest practical day set by the court, unless trial is continued for good cause. Thus, the right of a municipal court to grant a continuance is recognized. K.S.A. 12-4507 provides that, if the accused is found guilty, sentence shall be imposed and judgment rendered without unreasonable delay. K.S.A. 12-4508 declares that, when a judgment is rendered, the municipal judge or clerk of the municipal court shall enter such judgment on the docket.
In this case, the minutes of the judge of the municipal court show clearly that the trial commenced on October 19, 1982, and that the case was then continued to November 30, 1982, to enable counsel to file briefs on defendant’s motion to suppress. On November 30, 1982, the motion to suppress was denied, and the case was further continued and set for trial on December 28, 1982. On December 28, 1982, the municipal judge heard evidence and entered his judgment on the docket. He specifically found defendant guilty, imposed a fine and a jail sentence, ordered defendant’s driving privileges to be restricted, and required defendant to attend alcohol education and/or treatment sessions. The penalty was stayed for 30 days, and the appeal bond was set at $200.
K.S.A. 1982 Supp. 22-3609 covers the statutory procedure for perfecting an appeal from a municipal court to the district court in the following language;
“22-3609. Appeals from municipal courts. . . .
“(2) An appeal to the district court shall be taken by filing a notice of appeal and any required appearance bond in the district court of the county in which the municipal court is located. No appeal shall be taken more than 10 days after the date of the judgment appealed from.
“(3) The notice of appeal shall designate the judgment or part of the judgment appealed from. The defendant shall cause notice of the appeal to be served upon the city attorney prosecuting the case. The judge whose judgment is appealed from or the clerk of the court, if there is one, shall certify the complaint and warrant to the district court of the county, but failure to do so shall not affect the validity of the appeal.” (Emphasis supplied.)
It should be noted that to perfect an appeal from municipal court, a convicted defendant must file a notice of appeal and an appearance bond. The above statute states, without equivocation, that no appeal shall be taken more than ten days after the judgment appealed from. Under section (3) the notice of appeal is required to designate the judgment or part of the judgment appealed from.
There are a number of Kansas cases which hold that, in order to perfect an appeal to district court from municipal court, the provisions of 22-3609 must be complied with and failure to do so is a jurisdictional defect which deprives the district court of jurisdiction to proceed with the appeal. In State v. Moses, 227 Kan. 400, 607 P.2d 477 (1980), involving a state criminal prosecution, it was held that the filing of a timely notice of appeal is jurisdictional. In City of Bonner Springs v. Clark, 3 Kan. App. 2d 8, 588 P.2d 477 (1978), it was held that a written notice of appeal filed in the district court did not satisfy the requirements of K.S.A. 1977 Supp. 22-3609(2) that a written notice of appeal be filed in municipal court. The district court was held to be without jurisdiction, since a written notice of appeal was not filed in municipal court. See also City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56 (1972).
Turning to the case now before us, the handwritten minutes of the municipal court judge and the journal entry filed in municipal court show without question that judgment was entered and sentence pronounced on December 28, 1982. Only the penalty was stayed for 30 days. On January 24, 1983, counsel for the defendant filed a written notice of appeal in municipal court. That notice of appeal clearly states that the defendant appeals from the judgment of the city of Overland Park, Kansas, entered on December 28, 1982. The notice of appeal was thus filed 27 days after judgment was entered on December 28, 1982. This does not comply with the statutory requirement of K.S.A. 1982 Supp. 22-3609(2) that no appeal shall be taken more than ten days after the date of the judgment appealed from.
Defendant seeks to avoid the result of the untimely filing of the notice of appeal by arguing in his brief that judgment was not actually rendered by the municipal court until February 1, 1983. Defense counsel attaches to his brief a letter written by defense counsel to the clerk of the Overland Park Municipal Court dated December 28, 1982, which states:
“This shall acknowledge the Judge’s ruling in the above-referenced case wherein he has imposed sentence but has set an appeal bond of $200.00, staying execution for thirty days for Mr. Barron to either file an appeal bond or enroll in alcoholic counseling.
“Mr. Elder has given me a court setting of February 1,1983 at 8:00 p.m. for Mr. Barron to appear and inform the court that he has chosen to appeal the action or to enroll and be evaluated in the alcohol program.
“If the above does not comport with your understanding of the Judge’s bench notes please advise immediately.”
We note that this letter was not filed with the clerk of the district court until August 3, 1983, after the appeal to this court had been perfected by the city and the city had filed its appellant’s brief. We also note that there is nothing in the record to show that the municipal court conducted any hearings in the case after December 28, 1982.
We have considered the arguments of counsel and have concluded from the handwritten minutes of the judge of the municipal court, the journal entry of judgment of the municipal court, and the language contained in defendant’s notice of appeal that a judgment finding defendant guilty and imposing sentence was entered on December 28, 1982. We have further concluded that the defendant did not perfect a timely appeal to the district court by filing his notice of appeal on January 24, 1983, 27 days after the date of the judgment. It thus clearly appears that, because of the failure of the defendant to comply with statutory procedures governing appeals from the municipal court to the district court, the district court never had jurisdiction of the case on appeal, including jurisdiction to determine the motion of defendant to dismiss on the grounds that he was subjected to double jeopardy in the municipal court proceedings.
This court, having determined from the record that the district court lacked jurisdiction of the case, could properly raise the question of jurisdiction on its own motion. The court does not have jurisdiction to consider the appeal in this case. The case must therefore be reversed and remanded to the district court with instructions to dismiss defendant’s appeal from municipal court for want of jurisdiction.
Although we are without jurisdiction to entertain the merits of the appeal, we have carefully examined the briefs presented by the parties and we have concluded that, in any event, the defendant was not subjected to double jeopardy in the municipal court proceedings because there was never a termination of one trial and the commencement of a second trial. K.S.A. 21-3108, which pertains to the subject of double jeopardy in criminal proceedings, clearly requires a termination of one trial and the commencement of a second trial in order for double jeopardy to exist. The minutes of the judge of the municipal court show, without question, that the defendant was only subjected to one trial in municipal court. The trial commenced on October 19, 1982, at which time defendant made his oral motion to suppress. The trial court was obviously concerned about the motion and continued the hearing to provide counsel an opportunity to file briefs. On November 30, 1982, the motion was denied, and the matter was continued for hearing to December 28, 1982. Since there was only one trial before the municipal judge, which was continued for reasonable cause, the defense of double jeopardy is not applicable in this case.
The judgment of the district court is reversed and the case is remanded to the district court with directions to dismiss defendant’s appeal from his conviction in municipal court. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the State from an order dismissing a complaint charging the defendant, David D. Garrett, with aggravated escape from custody (K.S.A. 21-3810). The facts in the case are not in dispute and were stipulated by the parties as follows:
(1) The defendant, David D. Garrett, was convicted of the offense of forgery (K.S.A. 21-3710[&]), a felony, by plea of guilty on May 20, 1982, in Sedgwick County Case No. 82-CR-64. Defendant was placed upon a three-year suspended sentence to obey certain terms and conditions.
(2) Upon the defendant’s failure to comply with the terms and conditions of his suspended sentence, the district court set aside the suspended sentence on March 1, 1983, and committed the defendant to serve a sentence of not less than one year nor more than ten years upon his forgery conviction in Case No. 82-CR-64.
(3) Pursuant to a timely filed motion to modify by the defendant, the district court on August 9, 1983, modified the defendant’s sentence in Case No. 82-CR-64 and placed the defendant on probation for a period of three years to obey certain terms and conditions including that he reside at the Community Corrections Center, 1158 North Waco, Wichita, to obey all the rules and regulations of the center, and to obey all the requirements made by his case manager and counselor at the center.
(4) Pursuant to that order, the defendant, on August 9, 1983, entered the program and began residence at the Community Corrections Center, and on that date signed a seven-page Community Corrections Center agreement. The Community Corrections Center agreement provided in part as follows:
“The above-named client agrees to abide by all applicable laws, rules, ordinances and regulations of the Sedgwick County Community Corrections. Special attention is directed to the following statement:
“ANY RESIDENT RELEASED TO THE CUSTODY OF SEDGWICK COUNTY COMMUNITY CORRECTIONS AND WHO WILLFULLY FAILS TO RETURN TO THE DESIGNATED PLACE OF HOUSING AT THE TIME SPECIFIED IN THE PLAN MAY BE GUILTY OF ESCAPE FROM CUSTODY AND UPON CONVICTION BE SUBJECT TO THE PENALTY PROVIDED IN THE KANSAS STATUTES ANNOTATED.”
“Resident Rules
“During placement at the Sedgwick County Community Corrections Center, residents shall obey all laws, applicable ordinances, housing regulations and the following standard corrections center rules:
“1. Residents shall adhere to all laws. Illegal behavior may be substantiated at a disciplinary hearing or a court of law if said conduct is classified as a misdemeanor or felony at the time of the incident.
“9. Residents are to be at their designated place of assignment (work, housing facility, or on furlough). Residents are responsible for notifying the housing staff of any proposed changes in their work schedule or furlough plan and must receive staff approval of such changes. Residents are to directly go to and from work by the approved method of transportation, route and time. Furthermore, residents who fail to return to the housing facility or are not at their place of assignment, may be guilty of Escape under the Kansas Statutes Annotated.
“10. Should any situation occur which prevents a resident from returning to the Center at the prescribed time, he/she shall immediately telephone the Center for instructions. Should approved work, study, training, or community service program terminate ahead of schedule, the resident shall immediately and without delay, return to the Residential Center.
“14. Residents may not leave Sedgwick County while placed in the facility without previous staff approval (job-seeking, employment or emergency only).”
“ Possible Disciplinary Measures
“When residents are found to be in violation of facility regulations, it is the responsibility of staff to take appropriate action promptly and fairly in accordance with due process safeguards. The following disciplinary measures may be imposed by staff against residents of the corrections center, depending on the seriousness of the violation(s).
“1. Reprimand (usually verbal).
“2. Special conditions added to the case plan (alcohol treatment, drug treatment, marital counseling, etc.).
“3. Placement in any phase of the level system and/or reduction of any/all points.
“4. Partial restriction of furlough privileges.
“5. Complete restriction of furlough privileges.
“6. Extra duty in the facility.
“7. Referral to prosecuting authority for violation of the law.
“8. Removal from the program and placement in the Sedgwick County jail pending a court hearing.
“9. Imposition of several disciplinary measures at the same time (restriction, extra duty, special conditions, etc.).
“I have read (had read to me) the above and understand these are the disciplinary options available to staff at the Community Corrections Center which may be used if I am in violation of any of the conditions of my release. I further understand that should I violate the conditions of my release by fleeing to another state, I hereby agree to waive Extradition to be returned to Kansas.”
(5) On September 16, 1982, the defendant checked out of the Community Corrections Center on a job-seeking furlough with a specified scheduled return time of 12:30 p.m. on that date. He did not return to the Community Corrections Center until 10:00 p.m. that same night. The defendant had gone to Pittsburg, Kansas, to visit his family instead of looking for a job, and he was brought back to the center by family members.
(6) The Community Corrections Center is a two-story, nonsecured, residential facility which houses felony offenders eligible for the community corrections program operating in Sedgwick County pursuant to K.S.A. 1983 Supp. 75-5290 et seq.
(7) The defendant used neither violence nor any threat of violence against any person in leaving the extended area of confinement (e.g., the City of Wichita) in violation of the rules and regulations of the Community Corrections Center.
On September 16, 1983, a complaint/information was filed in this case charging the defendant with escape from the Sedgwick County Community Corrections Center, while held in lawful custody upon the conviction of forgery under Case No. 82-CR-64. On September 29, 1983, defendant’s counsel filed a motion to dismiss for the sole reason that there was “no factual basis to support the charge alleged.” The motion to dismiss was submitted to the district court on the factual stipulation set forth above. Counsel for defendant filed a brief in support of the motion to dismiss in which the only point argued was that aggravated escape from custody (K.S.A. 21-3810) is not an appropriate charge to bring against an individual who, without permission, leaves a community corrections residential program. There was no constitutional issue raised in defendant’s brief. The State filed a memorandum brief in opposition to defendant’s motion to dismiss. In the State’s brief, various statutes and court decisions were reviewed and the State urged the district court to rule that K.S.A. 21-3810 was applicable. No constitutional issue was discussed in the State’s brief.
On November 18, 1983, the district court filed its order sustaining the defendant’s motion to dismiss. In its order, the court found that, based upon the stipulation of facts, K.S.A. 21-3810(a) is unconstitutional as applied to this defendant in a community corrections setting. The constitutional issue had not been raised by either of the parties prior to the court’s decision, and the court did not state in its order of dismissal why the statute was unconstitutional. On November 18, 1983, the State filed its notice of appeal. There is no transcript of any proceeding in the record on appeal.
The basic issue presented on the appeal is whether the district court erred in dismissing the complaint. There are two questions involved which, simply stated, are as follows:
(1) Whether K.S.A. 21-3810, which provides for the offense of aggravated escape from custody, is applicable to a convicted felon who, without permission and in violation of the rules, leaves a community corrections program, and
(2) Whether K.S.A. 21-3810(a) is unconstitutionally vague and ambiguous when applied to a convicted felon who departs from a community corrections residential program without permission. In order to determine these issues, we believe it would be helpful at the outset to review the applicable statutory provisions and court decisions pertaining to the offenses of escape from custody and aggravated escape from custody.
In 1982, the Kansas legislature amended K.S.A. 21-3809 to clarify the crime of escape from custody. K.S.A. 1983 Supp. 21-3809 provides as follows:
“21-3809. Escape from custody, (a) Escape from custody is escaping while held in lawful custody on a charge or conviction of misdemeanor.
“(b) As used in this section and K.S.A. 21-3810 and 21-3811:
“(1) ‘Custody’ means arrest, detention in a facility for holding persons charged with or convicted of crimes, detention for extradition or deportation, detention in a hospital or other facility pursuant to court order or imposed as a specific condition of probation or parole or any other detention for law enforcement purposes. ‘Custody’ does not include general supervision of a person on probation or parole or constraint incidental to release on bail.
“(2) ‘Escape’ means departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.
“(c) Escape from custody is a class A misdemeanor.”
K.S.A. 21-3810 provides for the offense of aggravated escape from custody in the following language:
“21-3810. Aggravated escape from custody. Aggravated escape from custody is:
“(a) Escaping while held in lawful custody upon a charge or conviction of felony; or
“(b) Escaping while held in custody on a charge or conviction of any crime when such escape is effected or facilitated by the use of violence or the threat of violence against any person.
“Aggravated escape from custody is a class E felony.”
As originally enacted, K.S.A. 21-3809 did not define the term “custody.” Definition of that term was added by the 1982 amendment. It should be noted that “custody” means detention in a facility for holding persons charged with or convicted of crimes or detention in a facility pursuant to court order or imposed as a specific condition of probation or parole or any other detention for law enforcement purposes. It is specifically provided that custody does not include general supervision of a person on probation or parole. The first question which arises is whether the defendant, David D. Garrett, was being held in detention in one of the described facilities. In several decisions this court has discussed the concept of custody and its relationship to detention.
In State v. Pritchett, 222 Kan. 719, 567 P.2d 886 (1977), a juvenile ran away from a youth center. After the escape, he was admitted to St. Francis Hospital in Topeka for medical reasons. He also left there without permission. The only issue presented on the appeal was whether the boy was in the custody of a juvenile facility or institution while in the hospital. The court in a unanimous decision held that he was. In that opinion, Justice Owsley discussed a number of relevant cases and then concluded:
“The common thread which runs through these cases is the idea that custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. (Jones v. Cunningham, 371 U.S. 236, 242, 9 L.Ed.2d 285, 83 S.Ct. 373, 92 A.L.R.2d 675.) There is no requirement that the prisoner be constantly supervised or watched over by prison officials. (United States v. Rudinsky, [439 F.2d 1074, 1076 (6th Cir. 1971)].) The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.” 222 Kan. at 720.
The court reasoned that it made no difference that the escape was from a hospital without youth authorities present. The boy was still in their custody in the sense required by the statute. The court in Pritchett referred to United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971), where a prisoner was confined in a federal treatment center after conviction for mail theft. While there, he was placed on a work release program which allowed him to leave the facility during the day and return at night. When he failed to return on time and did not account for his whereabouts, he was hunted, apprehended, and convicted for his waywardness. The appellate court rejected the contention that he was not in custody of prison officials when he disappeared. For similar cases see Commonwealth v. Hughes, 364 Mass. 426, 305 N.E.2d 117 (1973); State v. Furlong, 110 R.I. 174, 291 A.2d 267 (1972); Tucker v. United States, 251 F.2d 794 (9th Cir. 1958); Giles v. United States, 157 F.2d 588 (9th Cir. 1946). The statute involved in the federal cases was 18 U.S.C.A. § 751 which is similar to K.S.A. 1983 Supp. 21-3809 and K.S.A. 21-3810.
Another case which discusses the concept of custody is State v. Carreiro, 203 Kan. 875, 457 P.2d 123 (1969). There the defendant, an inmate, was transferred from Lansing Penitentiary to the Honor Camp at Pomona Reservoir. The camp had no walls or fences and the officers were unarmed. Each inmate had been informed of the required conduct. The defendant left the sleeping facility of the honor camp without permission. The court held that the defendant had been in lawful custody. The officers assigned for duty at the honor camp were employed by the State and were under the management and supervision of the Director of Penal Institutions. Also in point is State v. Williams, 208 Kan. 480, 493 P.2d 258 (1972), where a prisoner was committed to the State Penitentiary and was permitted to live in a dormitory outside the walls of the institution. He left the dormitory without authority and in violation of the rules. In this court, the defendant contended that he had to be confined behind bars in order to be guilty of the offense of breaking. The court rejected this contention, relying upon State v. Gordon, 203 Kan. 69, 453 P.2d 80 (1969), and also on State v. Carreiro, 203 Kan. 875.
We have carefully considered the language of K.S.A. 1983 Supp. 21-3809 and K.S.A. 21-3810 and the decisions discussed above. We have concluded that the defendant was in custody within the meaning of the statute. He was being detained in a facility for holding persons convicted of crimes and was also being detained in a facility pursuant to court order.
The offense of escape from custody also requires that there be an escape. In K.S.A. 1983 Supp. 21-3809, escape is defined as a departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted. In our judgment, the required element of an escape has been established under the stipulated facts. The Community Corrections Center agreement prohibits any resident from willfully failing to return to the designated place of housing specified in the program. Resident rule No. 9 clearly states that residents who fail to return to the housing facility or are not in their place of assignment may be guilty of escape under the Kansas Statutes Annotated. Rule No. 14 also specifically provides that residents may not leave Sedgwick County while placed in the facility without previous staff approval. In the present case, it is undisputed that the defendant departed from Sedgwick County and went to Pittsburg, which is located in Crawford County. Under these circumstances, it cannot be denied that the defendant departed from custody by going outside the geographical limits prescribed by the program.
The Kansas Community Corrections Act is contained at K.S.A. 1983 Supp. 75-5290 et seq. It is clear from a reading of the various sections of that act that the community corrections program is a part of the overall state correctional program. The secretary of corrections is authorized to make grants of state money to counties for the development and operation of community correctional services (75-5291). The corrections advisory board of a particular county is required to develop and implement a comprehensive plan which must be submitted for approval, not only to the board of county commissioners, but also to the secretary of corrections (75-5292[d] & [e]). The community corrections act is to be administered by the secretary of corrections or by employees of the department of corrections (75-5294). The corrections advisory board is responsible for the administration of a community correctional plan and for the correctional services provided. The corrections advisory board is not a part of the judicial branch of government, although there is a judiciary representative serving on the board (75-5297). One of the correctional services which may be provided is the detention and confinement of adults convicted of crime (75-52,100 and 75-52,102). It is clear from all of these provisions that a community corrections residential center is a detention facility for holding persons convicted of crimes and also for holding persons detained pursuant to a court order or imposed as a specified condition of probation or parole.
K.S.A. 1983 Supp. 75-52,104 sheds further light on the legislative intent. Under that section, a county receiving grants under the program is charged a sum for certain juveniles and felons committed to state facilities. An exception provides that no charges shall be made for persons convicted of Class A, B, and C felonies or persons convicted of Class D or E felonies who had more than one prior felony conviction. There are also other exceptions specified. Section (c) of 75-52,104 provides that the secretary of corrections may waive a charge against a county in a case involving a commitment arising from an escape or charge of aggravated juvenile delinquency. By this provision the legislature obviously contemplated that a situation might arise where a resident of a community corrections center would escape by an unauthorized leaving from the center. In that situation, the particular resident could be charged with escape and sentenced to the custody of the secretary of corrections, and the secretary of corrections could waive the charge to the county provided for in 75-52,104.
From the above statutes and court decisions, we have concluded and hold that K.S.A. 21-3810, which provides for the offense of aggravated escape from custody, is applicable to a convicted felon who, without permission and in violation of the rules, departs from a community corrections facility or fails to return following temporary leave lawfully granted. Thus, the complaint in this case properly charged the defendant, David D. Garrett, with the offense of aggravated escape from custody under K.S.A. 21-3810.
We now turn to the question whether K.S.A. 21-3810 is unconstitutionally vague and ambiguous when applied to a convicted felon who departs from a community corrections program without permission. We have concluded that the statute is neither unconstitutional, vague, nor ambiguous. This court has held that the test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys such warnings, it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. State v. Lackey, 232 Kan. 478, 657 P.2d 40 (1983); State v. Norris, 226 Kan. 90, 91-92, 595 P.2d 1110 (1979).
At its heart, the test for vagueness is a commonsense determination of fundamental fairness. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d 65, modified 221 Kan. 752 (1977). Applying the test to K.S.A. 21-3810, we hold that that statute is not unconstitutional for vagueness. The statutory definitions of the terms “custody” and “escape,” as contained in K.S.A. 1983 Supp. 21-3809, in our judgment are broad enough to include residents of a community corrections facility which is beyond question a facility for detention of persons convicted of crime or detention pursuant to court order or imposed as a specific condition of probation or parole. The trial court erred in holding the statute to be unconstitutional.
The judgment of the district court is reversed. The order dismissing the complaint is set aside, and the case is remanded to the district court for further proceedings. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
Walter J. Willard (plaintiff-appellant) appeals from a summary judgment entered against him and in favor of the City of Kansas City, Kansas (defendant-appellee). The plaintiff sought damages for cuts and other injuries he suffered to his face and head when he collided with a chain link fence around a baseball diamond in a city park in Kansas City. The plaintiff alleged in his petition the City was negligent in installing and maintaining a type of fencing with raw sharp cutting edges running along the top in an area where such accidents were likely to occur. The district court found the City immune from liability under provisions of the Kansas Tort Claims Act (KTCA), K.S.A. 1983 Supp. 75-6101 et seq. The plaintiff contends the trial court improperly granted summary judgment as there were unresolved issues of fact before the court.
The trial court held the City was immune from liability under the facts and circumstances alleged by the plaintiff under K.S.A. 1983 Supp. 75-6104(n), which provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting fx-om:
“(n) any claim for injuries resulting fx-om the use of any public px-operty intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injui-y.” (Emphasis added.)
In his petition the plaintiff alleged the defendant City’s negligent installation or maintenance of the fencing was the proximate cause of his injuries. In its answer the City alleged, among other defenses, that it was immune from liability upon the facts and circumstances pled by the plaintiff under the KTCA. The pretrial order entered on January 24, 1983, states there were no amendments to the pleadings and lists as issues of fact to be decided at trial “[t]he standards applicable to fencing materials surrounding facilities utilized as softball fields” and “[wjhether defendant had notice of any defect.” The order, also lists “[t]he applicability, if any, of the immunity statutes to plaintiff s cause of action” as an issue of law to be determined by- the court. All discovery, except medical, was to be completed by March 1, 1983, and dispositive motions were to be filed by that date. In its motion for summary judgment filed March 1, 1983, the City claimed it was immune from liability from the plaintiff s claims under 75-6104(n) because “plaintiff s allegation of negligence is insufficient to sustain a claim against the municipal defendant.” In reply to the City’s motion, the plaintiff stated he did not dispute the City’s assertion of the pertinent facts, which are similar to those recounted above, but asserted that “negligence of the defendant is a fact issue to be decided by the jury and therefore not subjected to summary judgment as a matter of law.”
The rules which govern the granting of a motion for summary judgment are well settled. In considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where genuine issues of material fact remain undetermined, the granting of summary judgment is improper. Lantz v. City of Lawrence, 232 Kan. 492, Syl. ¶ 1, 657 P.2d 539 (1983); K.S.A. 60-256. The manifest purpose of a summary judgment is to avoid delay where there is no real issue of fact. The court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 1, 553 P.2d 315 (1976); Stovall v. Harms, 214 Kan. 835, 838, 522 P.2d 353 (1974). This court has also.emphasized the responsibility of a party opposing summary judgment to take steps to provide evidence by way of deposition or affidavits in opposition to the motion or if necessary to request time to make additional discovery. The nonmoving party cannot rely solely upon the allegations in his pleadings. He must come forward with something of evidentiary value to justify his position. Miller v. Sirloin Stockade, 224 Kan. 32, 35-36, 578 P.2d 247 (1978); Stovall v. Harms, 214 Kan. at 838; Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974).
All discovery should have been completed, under the direction of the pretrial order, at the time the motion for summary judgment was filed. The record on appeal indicates only the deposition of the plaintiff was filed with the district court. The plaintiff offered no affidavits in opposition to the motion for summary judgment, nor did he seek additional time to furnish affidavits or to take additional depositions. The plaintiff opposed the City’s motion by merely asserting that the issue of the City’s negligence is a fact determination and therefore can not properly be disposed of on a motion for summary judgment. The plaintiff did not allege that any material facts remained in dispute and, in fact, expressly stated he did not dispute the City’s assertion of the pertinent facts. On appeal, however, the plaintiff maintains he pointed out to the trial court in his reply to the City’s motion that there were unresolved factual issues still before the court. This is not supported by the plain language of his reply filed with the district court. The plaintiff also does not indicate in his brief on appeal what those facts in dispute were. The plaintiff contends on appeal that whether the installation of this type of fence material in a ball park was negligent and whether such negligence constituted “gross and wanton” negligence as described in K.S.A. 1983 Supp. 75-6104(n), could only be determined after the evidence and testimony was presented at trial. Again, the plaintiff does not indicate what evidence would be presented by him at trial to support his claim that the City’s alleged negligent acts constituted “gross and wanton” negligence.
The issue before this court is whether, under the facts and circumstances alleged by the plaintiff in his pleadings, the defendant’s acts constituted “gross and wanton” negligence, as described in 75-6104(n), as a matter of law in order to permit the case to be submitted to the jury. Wanton conduct is described in PIK Civ. 2d 3.02 as “[a]n act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act.” The note following the instruction states it should be given in any case where a claim of wanton conduct is supported by the evidence. Recently, in Britt v. Allen County Community Jr. College, 230 Kan. 502, Syl. ¶ 5, 638 P.2d 914 (1982), this court repeated the well established test of gross and wanton negligence:
“Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.”
The court in Britt emphasized that to establish wanton or reckless conduct, there must be evidence to establish a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences. 230 Kan. at 510. In that case the testimony of the three witnesses failed to establish facts or circumstances from which the jury could find the defendant’s employee acted in a willful or wanton manner and the district court properly entered a summary judgment in favor of the defendant.
In the action before us the plaintiff alleged in his petition that the defendant City was negligent in installing or maintaining the particular fence here involved. The City indicated its intention to rely on the tort immunity defense in its answer and subsequently at the pretrial hearing. In response to the City’s motion for summary judgment on this issue the plaintiff merely stated that the defendant’s “negligence” was a fact issue to be determined by the jury. The plaintiff took no steps to provide evidence by way of deposition or affidavit in opposition to the motion, but chose to rely solely upon the allegations in his pleadings. No evidence was offered that the City violated any standards or other municipal ordinances governing the installation of fencing in public areas, or that the City had notice of the potentially dangerous condition of the fence, which might give rise to an inference of gross and wanton negligence on the part of the City. In Miller v. Sirloin Stockade, 224 Kan. at 36, the court quoted from Gard’s Kansas C. Civ. Proc. § 60-256 (1977 Supp.):
“ ‘Although the procedure has seemed to be plain under the Kansas rule with respect to the use of affidavits to support a motion for summary judgment, particularly in the light of the federal precedents, any lingering doubts have now been resolved by the decision in Ebert v. Mussett, 214 K 62, 519 P.2d 687. Though the Kansas rule does not contain the express provision of Federal Rule 56 (1963 amendment) prohibiting a non-moving party from relying upon allegations of his pleadings to oppose facts stated by affidavit in support of a motion for summary judgment, the same prohibition exists in Kansas by reason of the implications of this section and the case law which has construed it. As the court says in Ebert v. Mussett, supra, the rule is intended to enable a party to pierce the allegations of fact in his adversary’s pleadings and to avoid a trial on fact issues which are paper issues only. Consequently, the rule is now spelled out to the effect that there is an affirmative duty upon the non-moving party to respond with counter affidavits or take advantage of the alternatives offered to him, which are to ask leave to make additional discovery or to show good cause why he cannot obtain and present by affidavits facts essential to justify his position. He may, of course, ask for additional time for procuring such counter-affidavits. Failing in these opportunities a motion for summary judgment showing by affidavits (or other discovery records, for that matter) that there is no factual dispute and that the moving party is entitled to judgment as a matter of law, the motion should be granted and judgment entered accordingly.’ ” (Emphasis added.)
In this case, in order to avoid summary judgment, the plaintiff was obligated to produce affidavits or other evidence showing facts and circumstances from which the City’s gross and wanton conduct, as required to establish liability under 75-6104(n), could be inferred. Mere negligence on the part of the City, which was all that was alleged by the plaintiff in his pleadings, was insufficient to establish a basis for liability under the KTCA. The plaintiff “could not bide his time and wait for trial to see” if some evidence establishing the City’s gross and wanton conduct would be produced. See Miller v. Sirloin Stockade, 224 Kan. at 36. There was no genuine issue of fact before the district court. Accordingly, the motion for summary judgment was properly sustained.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a jury conviction for rape, K.S.A. 1983 Supp. 21-3502, and aggravated sodomy, K.S.A. 1983 Supp. 21-3506.
On April 18, 1982, the complaining witness, Ms. D, went to 1427 N. Estelle, Wichita, the residence of her friend, Mildred Adams. The appellant, David A. Williams, had been dating Mildred Adams prior to the night of the rape. Although they were not married, Ms. Adams and the appellant had a child together. Ms. D was asked to babysit with the children of Ms. Adams that evening. After the children were put to bed, Ms. D put on her nightgown, made up the couch and went to sleep. On the nights the appellant stayed in the house, Ms. Adams would sleep on the couch. The appellant would sleep on a mattress on the floor next to the couch. On the nights Ms. D visited she slept in another room. Ms. D had known the appellant for four to six years prior to this incident.
At approximately 1:20 a.m., April 19, 1982, Ms. D heard a motorcycle approach the house. She saw the appellant enter the residence. He went into the kitchen, then the bathroom and finally returned to the living room where he undressed. He appeared to be intoxicated and smelled of beer or liquor. As the appellant approached Ms. D he inadvertently knocked the phone off a table near the couch. The victim repeatedly advised the appellant she was not the appellant’s girlfriend, Mildred Adams. The appellant responded threateningly and proceeded to try to force her into submission. The victim resisted and told the appellant to release her. In the course of events, he struck her twice in the stomach and twisted her arm. During her attempts to free herself, the victim noticed the phone off the hook on the floor. She was able to reach the phone and push-dial the 911 emergency number without appellant being aware of her action.
Dispatcher Dean Speaks, with the Sedgwick County Emergency Communications Department, received the phone call from the Adams residence phone at 2:12 a.m. The dispatcher repeatedly identified himself and attempted to make contact with someone at the other end of the line, but he got no response. He heard a female voice screaming in the background. The 911 emergency number has an automatic number identification system which displays the calling party’s telephone number to the dispatcher on duty. The 911 system also automatically records all communications on that line, as well as other incoming and outgoing calls and radio traffic, on a forty-channel dual reel tape recorder. Dispatcher Speaks monitored the noises and conversations he heard from the Adams residence for a half hour and used a cross-reference directory to obtain the address of the phone number. A Cessna Drive address which he obtained from the directory proved to be incorrect. Police were dispatched to the incorrect address only to find no disturbance. The dispatcher then contacted a telephone company supervisor and traced the phone call to the correct address. The cassette tape recording, introduced as State’s Exhibit No. 12, contains the conversations, screams and other noises heard by the dispatcher during the thirty minutes he monitored the line. Dispatcher Speaks identified the exhibit as an accurate reproduction of the conversation he had monitored. Two other dispatchers testified they were responsible for duplicating the original communications from the forty-channel master reel to the cassette tape.
During the course of the victim’s ordeal on the couch and the mattress, the appellant effected penetration and forced her to perform oral sex upon him. The appellant threatened the victim physically. She testified she submitted without physically striking him or hurting him since she was aware of the past physical abuse he had inflicted on Mildred Adams. The police eventually arrived. The appellant approached the door and tried to persuade them nothing was wrong. Upon hearing the victim’s screams for help, they kicked in the door and entered. The door struck appellant and he was immediately apprehended, dressed only in his socks. The police testified the victim was hysterical.
The victim was then taken to the hospital for a physical examination. The lab reports of the rape kit examination failed to show the presence of spermatozoa within her vaginal fluids. This corroborated the victim’s testimony that she did not believe the appellant reached ejaculation. Her only physically observable injury was some bleeding from her cervix. Williams was tried to a jury and found guilty of rape and aggravated sodomy.
The appellant first argues the trial court erred in excluding evidence of previous sexual conduct of the victim. The appellant at trial sought to cross-examine the victim concerning one incident of prior consensual sexual conduct with him. The incident allegedly occurred sometime in 1980, in the Texaco Motel on 53rd Street in Wichita. Kansas statute allows such evidence under certain circumstances after specific requirements have been complied with. This statute, 1983 Supp. 21-3525(2), the rape shield statute, provides:
“(2) Except as provided in subsection (3), in 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 relevancy 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.”
In the instant case, a notice was filed four months prior to trial. The notice was defective since it was not accompanied by the required affidavit and did not set forth an offer of proof as to the details of the prior incident. The notice merely stated: “[T]he defendant intends to offer to the Court for admission into evidence testimony concerning the previous sexual conduct of the complaining witness with the defendant.” The first day of trial appellant provided the omitted details under oath. The trial court ruled this was sufficient to comply with the statute; however, it would not allow the evidence to be admitted because it was too remote and immaterial and thus inadmissible. The court informed the appellant, who was acting as co-counsel with his court-appointed attorney, that he could raise the issue only if he took the stand. The purpose of this was to protect the victim from attempts to cross-examine her on the issue. The court articulated the prejudice which would result to the victim if questioned along these lines even if she denied the allegations. The trial judge also informed the appellant if he took the stand to offer such evidence he would thereby waive his privilege against self-incrimination and be subject to cross-examination concerning the rape charge.
Appellant’s counsel argues these orders constitute error in two ways. First, appellant argues the evidence was material and therefore unconditionally admissible. Second, appellant alleges the court misinformed him as to the scope of the State’s cross-examination if his direct testimony concerned only the prior sexual conduct.
As to the first point, the evidence, although material as appellant indicates, was irrelevant because it was too remote. Thus, it was inadmissible. See State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983), and In re Nichols, 2 Kan. App. 2d 431, 580 P.2d 1370, rev. denied 225 Kan. 844 (1978). The court’s ruling, however, did not specifically disallow the evidence. The court merely held it appeared too remote and gave the appellant the opportunity to present the evidence at an appropriate time. The appellant chose not to do so. We find no error.
The appellant also argued the court instructed him erroneously as to the scope of cross-examination. The appellant wanted to testify as to the prior conduct only. The judge warned he could be cross-examined on details of the charged rape if he took the stand. The State argues this is harmless error, since the appellant did not take the stand to testify. Appellant responds that he would have taken the stand but the court’s ruling put an improper chilling effect on his rights, which he was then afraid to exercise. We have examined the court’s ruling and find no error. The trial court correctly stated the taking of the witness stand by appellant would have subjected him to cross-examination concerning the charged offense.
Appellant next argues the trial court erred in admitting into evidence the tape recording of calls to the emergency communication center on the night of the rape. A dispatcher with the Sedgwick County Communication Center testified he received an emergency call at 2:12 a.m. The dispatcher repeatedly identified himself, without receiving a response, although he could hear a woman screaming and crying. For the next thirty minutes the police department attempted to locate the address from which the call was coming. During this time the call was being recorded by the emergency communication center’s automatic recording equipment. The call ended when the police located the origin of the call and answered the victim’s cries for help.
At trial the State entered into evidence, over appellant’s objection, a cassette recording of the call. Appellant argues on appeal the trial court erred in admitting the tape recording because there was insufficient foundation for its admission and it was gruesome — designed to prejudice the appellant without any probative value.
The foundation objections stem from one main fact. The call was recorded automatically onto a forty-channel reel-to-reel tape as it occurred. This master tape used to record the phone call was re-recorded onto a cassette tape. Through inadvertence, the master tape was then erased and reused. While this is the policy of the emergency communication department, when calls are to be used as evidence in a case the master tape is usually preserved. Both the master and re-recorded cassette tapes are then entered into evidence. This resolves any question as to the accuracy of the re-recorded tape. In this case, however, since the master tape was destroyed, only the re-recorded cassette tape was offered as evidence. There are several portions of the cassette tape where it is difficult to understand what the parties were saying as well as several clicks and portions where no sound is heard. Since the master tape is unavailable for comparison, appellant’s foundation questions stem substantially from the missing master tape.
Initially, appellant cites the foundation requirements for admission of a tape recording in most jurisdictions. These are as follows:
“The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” 29 Am. Jur. 2d, Evidence § 436, pp. 494-95.
While Kansas cases vary in terms of what has been found to be sufficient foundation for the admission of recordings into evidence, all cases agree the matter is within the discretion of the trial court. See State v. Poulos & Perez, 230 Kan. 512, 639 P.2d 477 (1982); State v. Treadwell, 223 Kan. 577, 575 P.2d 550 (1978); State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976); State v. Hill, 211 Kan. 287, 507 P.2d 342 (1973).
Appellant cites several problems with the foundation in the instant case. The competency of the operators, appellant argues, was not established by the State. There was, however, testimony the dispatchers were familiar with the recording and re-recording equipment; had worked with this equipment for a substantial period of time; and had re-recorded calls from a master tape to a cassette on previous occasions. There is no doubt the operators were competent.
The authenticity and correctness of the recording are also alleged not to have been proven. This challenge is based upon the testimony that none of those responsible for the re-recording of the cassette compared the cassette to the master tape. The operators testified they listened and monitored the recording as it occurred. The re-recording was made by use of a patch cord with a split to allow the operators to listen. This technique results in the operators hearing exactly the same thing as the cassette tape. Such monitoring precludes the need to listen to the cassette and master tapes side by side when the recording is done. Also, one of the operators and the dispatcher on duty who took the call both testified the cassette was an accurate copy of the master tape. We hold there was sufficient evidence to prove the authenticity and correctness of the cassette tape.
Appellant next contends the State failed to meet its obligation to identify the principal speakers on the recording. To the contrary, the victim identified the appellant’s voice as well as her own and the dispatcher identified his voice. They were the only principal speakers. Although other voices appear on the tape transmitting information concerning the case, those individuals were not principal speakers and, therefore, need not be identified.
It is also charged there was insufficient evidence of a proper chain of custody of the tape. The chain of custody requirements have been set forth by this court in State v. Treadwell, 223 Kan. 577, Syl. ¶ 2, as follows:
“When objects of physical evidence have been kept in police custody the chain of possession must be reasonably complete, but this rule may be relaxed when the object is positively identified at the trial and it is established the object remains unaltered.”
One of the persons responsible for recording the tape testified he gave the tape to a Detective Davenport. The other operator corroborated this. At trial, the operators both positively identified the cassette as the one made from the master tape. The dispatcher testified the recording was accurate. We find the chain of custody requirements were met.
It is next argued the tape should not have been admitted due to portions which appellant contends are “inaudible.” There are several portions of the tape in which it is difficult to understand exactly what is being said. In State v. Wilson, 220 Kan. 341, 347, we held:
“When the authenticity of audio and tape recordings of a statement made by the defendant is established to the satisfaction of the trial court and found to be of sufficient clarity and quality to assist the jury in its deliberations they may be admitted in evidence even though portions thereof may not be first quality reproductions of what was said and done.”
In the instant case the court did not listen to the tape prior to the jury, thus, the court could not exercise its discretion to determine whether the portions which are difficult to understand rendered the recording inadmissible. However, the trial judge ruled he did not need to listen to the tape, since there was sufficient testimony the recording was of the rape as it actually occurred. We agree. The ruling is proper since there was adequate testimony that the recording was accurate.
Appellant finally argues on this issue the recording was so gruesome it was more prejudicial than probative. This argument is without merit. The recording went to the very heart of the case showing the victim’s lack of consent, that her resistance was overcome by force or fear, and that the sexual assault occurred. The tape also corroborates the testimony of several witnesses, including the victim. The tape is not inadmissible because it is gruesome and shocking. It is a true reproduction of a gruesome, shocking event. The fact the recording reflects this may not be used by appellant to exclude such evidence as “prejudicial.” It was prejudicial as is all evidence against the accused in criminal actions. That is its purpose. It is only when such prejudicial evidence has little probative value that it is excluded. Here its probative value was strong. The tape recording was properly admitted.
Appellant next argues the trial court erred in refusing to instruct on ignorance or mistake of fact and on the lesser offense of attempted rape. At trial appellant requested both instructions be given. The judge denied both requests. The general rule regarding instructions is the trial court must instruct the jury on the law applicable to the theories of both sides of the case where there is evidence to support each theory. State v. Haynes, 5 Kan. App. 2d 144, Syl. ¶ 2, 612 P.2d 1268 (1980).
Appellant argues the instruction on ignorance or mistake of fact was proper because the victim testified she and the appellant’s girlfriend resembled each other and since the appellant’s girlfriend usually slept on the couch where the victim was sleeping. Hence, appellant contends a reasonable jury might have found appellant mistook the complaining witness for his girlfriend. The bulk of the evidence, however, was to the contrary.
The appellant was advised shortly before he went to his girlfriend’s residence that she was in jail, unable to make bond. The appellant refused to help her make bond. The appellant inquired as to who would be watching the children while his girlfriend was in jail. He was advised Ms. D, the victim, would babysit. After he arrived at the house and approached the victim, she advised him she was not his girlfriend. The appellant told the victim he was going to have intercourse with her because the victim’s boyfriend had allegedly tried to have intercourse with the appellant’s girlfriend. No rational factfinder could have believed Williams mistook the victim for his girlfriend.
Additionally, the testimony massively supported the State’s theory that the sexual acts were forcible and nonconsensual. Even if the victim had been the appellant’s girlfriend, appellant’s acts would have constituted rape. The point is without merit.
The appellant also argues the trial court erred in refusing to instruct on attempt. Appellant claims the instruction is warranted since he attempted intercourse on the couch and again on the mattress next to the couch, but was able to consummate the act only when on the mattress. Since the State failed to specify whether the appellant was charged with the rape on the couch or on the mattress, appellant feels the attempt instruction is required. This argument presumes the appellant could have been charged for separate acts of rape against the same victim within a lapse of a few minutes and a distance of a few feet to separate the acts. The law is to the contrary. This court has held the prosecution may not split a single offense into separate charges. See State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). In Dorsey this court held the difference between the three rape charges was a lapse of a few minutes between each alleged offense. Under those facts, this court held there was only one crime under the rape theory and thus vacated the convictions on the multiplicitous counts. In the instant case, therefore, the jury could not find the appellant guilty of attempted rape on the couch if they found he subsequently completed the crime on the mattress. The entire half hour of events can be charged as one count of rape and one count of aggravated sodomy.
The appellant would be entitled to an attempt instruction only if there was some evidence to show the crime was not completed. The duty to instruct on lesser included offenses arises only if there is evidence under which the appellant might reasonably have been convicted of the lesser crime. See State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The only evidence in this case was of the completed act of rape and aggravated sodomy. An instruction on attempt would have been improper.
Appellant next maintains the trial court erred in ruling it lacked jurisdiction to hear appellant’s motion to modify sentence, since the notice of appeal had been filed. Appellant claims this was error since the docketing statements were not yet filed. This court addressed this issue in State v. Dedman, 230 Kan. 793, 640 P.2d 1266 (1982). Appellant cites Dedman for authority that the mere .filing of a notice of appeal is not sufficient to take away the trial court’s jurisdiction to hear the motion to modify sentence until the docketing statements are filed. Appellant quotes the court as saying:
“When an appeal is docketed, the trial court’s jurisdiction ends and the sentence may then be modified only after the mandate from the Supreme Court or Court of Appeals is returned, or by motion to remand temporarily for modification of the sentence.” 230 Kan. at 793, Syl. ¶ 2.
The State responds that although the syllabus used the word “docketed,” later in the opinion the court indicates an application for modification of .sentence may not be entered while the appeal is “pending.” The court’s rationale in Dedman supports the argument that the trial court loses jurisdiction over the case with the filing of the notice of appeal:
“It is important to note that here the sentence itself was appealed from. Its correctness is thus before this court. The foregoing rule allows the sentence to become crystallized so it may, indeed, be subject to appellate review or modification. In addition, we deem it better policy to have jurisdiction of a criminal action repose in only one court at a time to prevent a case from getting lost in the system.” 230 Kan. at 797.
The issue of excessive sentencing is on appeal here. Upon the filing of the notice of appeal, the trial court loses its jurisdiction to hear any motions to modify the sentence. We adhere to Dedman.
The fifth issue raised is that the trial court abused its discretion in sentencing appellant. Appellant was found guilty of one count of rape and one count of aggravated sodomy. For these convictions he received two terms of fifteen years to life, which sentences were to run concurrently.
Appellant argues the excessiveness of these sentences based upon a comparison to another rape case, State v. Stellwagen, 232 Kan. 744. Stellwagen received concurrent fifteen to thirty year sentences for his convictions for rape and aggravated sodomy. The facts in Stellwagen were without a doubt brutal. The defendant raped the victim and pushed the barrel of his gun up her anus. In Stellwagen the court stated:
“We have held when a sentence is within the statutory limits set by the legislature, it will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. In State v. Marks, 231 Kan. 645, 656, 647 P.2d 1292 (1982), the defendant received two concurrent terms of ten to twenty years for the same two felonies as in this case. Marks represents the longest sentence for these offenses we have found prior to this case. However, though we consider this sentence suspect of being excessive, in light of the heinous nature of the appellant’s crimes and his history, we cannot say this is abuse of the trial court’s discretion.” 232 Kan. at 750-51.
The sentences in this case are within the statutory limits; thus, we must determine if there are any special circumstances showing an abuse of discretion. The appellant cites the fact he did not use a gun to perpetrate the crime and the State’s failure to request the imposition of the habitual criminal act. While the sentences imposed here are much longer than those in Stellwagen and State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), the evidence shows the force and fear used in the instant crime, especially as evidenced by the tape recording, were substantial. There is no showing of abuse of discretion. The sentences are not impermissibly excessive.
Appellant’s final argument is that the cumulative effect of the trial errors noted in his brief requires reversal. In State v. Gammill, 2 Kan. App. 2d 627, 633, 585 P.2d 1074 (1978), the court held several trial errors when considered collectively were so great as to require reversal of that defendant’s conviction. The test enunciated was whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. The errors alleged in this case have all been independently shown to be without merit. Additionally, the evidence of guilt, including the corroboration found in the cassette tape, was overwhelming. No prejudicial error may be found upon the cumulative effect rule if the evidence is overwhelming against the defendant. See, e.g., State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). Due to the overwhelming nature of the evidence in this case, the alleged errors when considered collectively do not require reversal. The judgment of the trial court is affirmed.
Lockett, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
This action arises from the repossession of an automobile and is brought under the Uniform Consumer Credit Code (UCCC), K.S.A. 16a-l-101 et seq. Plaintiff Sandra J. Medling contends defendant Wecoe Credit Union acted unlawfully in repossessing and selling her 1979 Ford Thunderbird. The credit union counterclaimed for a deficiency judgment. Following a bench trial, the district court held in favor of defendant credit union on plaintiff s petition and on defendant’s counterclaim. Plaintiff appeals therefrom.
The first issue is whether there is substantial competent evidence to support the trial court’s finding the December, 1979, repossession of the automobile was lawful.
The rules relative to appellate court review, where sufficiency of the evidence is challenged, were summarized in Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), as follows:
“Where a 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. In re Estate of Phillips, 4 Kan. App. 2d 256, 261, 604 P.2d 747, rev. denied 227 Kan. 927 (1980); and City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976). It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses, English Village Properties, Inc. v. Boettcher & Lieurance Constr. Co., 7 Kan. App. 2d 307, Syl. ¶ 2, 640 P.2d 1282, rev. denied 231 Kan. 799 (1982), or redetermine questions of fact. Where a trial judge, sitting as a trier of facts, makes a specific finding of fact on apparently conflicting or actually conflicting evidence, an appellate court is concerned only with evidence that supports the trial court’s findings and not with evidence that might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, Syl. ¶ 1, 552 P.2d 957 (1976); Arnette v. Arnette, 162 Kan. 677, 681, 178 P.2d 1019 (1947); and In re Estate of Phillips, 4 Kan. App. 2d at 261-62. In other words, an appellate court searches the record for the purpose of determining whether there is any substantial competent evidence to support the findings and verdict. If so, the appellate court will not weigh the evidence. Findings of fact determined on conflicting evidence are conclusive. Winn v. Sampson Construction Co., 194 Kan. 136, 142, 398 P.2d 272 (1965). See also Klinzmann v. Beale, 9 Kan. App. 2d 20, Syl. ¶ 10, 670 P.2d 67 (1983).
“Substantial'competent evidence has been defined as evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved. Rush v. King Oil Co., 220 Kan. 616, 618, 556 P.2d 431 (1976). Even if findings of the trial judge appear to be inconsistent, the decision of the trial court may be sustained on the basis of those findings which allow the conclusion reached by the court below, if they are supported by the evidence. Landrum v. Taylor, 217 Kan. 113, 117, 535 P.2d 406 (1975); and In re Estate of Phillips, 4 Kan. App. 2d at 262.” 234 Kan. at 468-69.
Plaintiff challenges the sufficiency of the evidence supporting the trial court’s finding the defendant credit union properly declared the consumer credit transaction loan in default on the basis the prospect of payment, performance, or realization of collateral was significantly impaired.
The May 31, 1979, security agreement herein provides, in relevant part;
“EVENTS OF DEFAULT ENTITLING SECURED PARTY (THE CREDIT UNION) TO REPOSSESS. It is agreed by the parties hereto that the following events do reasonably constitute default which entitles the credit union to repossess collateral covered by this Security Agreement.
“(1) Default for ten (10) days for failure to make any payment as required by agreement with the credit union; and failure of the debtor to cure the default within twenty (20) days following the mailing of Notice of Consumers Right to Cure Default of Required Payment in the form and manner required by law;
“(2) Subsequent defaults of any required payment.
“(3) Significant impairment of the prospect of payment by the Debtor;
“(4) Significant impairment of the prospect of performance by the Debtor of any of the agreements herein;
“(5) Significant impairment of the realization of collateral by the Debtor by any of the following acts or omissions:
“(a) Failure of the Debtor to fulfill any of his agreements provided for herein;
“(b) Any warranty, representation or statement concerning the collateral made or furnished to the credit union by or on behalf of the Debtor which proves to have been false in any material respect when made or furnished;
“(c) Loss, theft, substantial damage, destruction, sale or encumbrance to or of any collateral, or the making of any levy seizure attachment thereof or thereon;
“(d) Death, insolvency, business failure, appointment of a receiver for any part of the property of assignment for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws by or against Debtor or any guarantor, co-maker, endorser or surety for or with Debtor.
“REPOSSESSION AND OTHER REMEDIES. Upon any such default, or any other significant impairment of collateral not herein described, the credit union may declare all obligations secured hereby immediately due and payable and shall have the remedies of a secured party under the law of this state.
“The Credit Union shall have the right to remove the collateral described herein from the premises without legal process and the borrowing member hereby waives and releases the credit union from and of any and all claims in connection therewith are [sic] rights therefrom, and the borrowing member further agrees upon the request of the credit union to assemble the collateral, and make it available to the credit union at a place designated by the credit union and reasonably convenient to both parties.
“The parties to this agreement expressly agree that this transaction is subject to the provisions of Kansas law known as the Uniform Consumer Credit Code and specifically designated as K.S.A. 16a-l-10I through 16a-9-102 inclusive.” (Emphasis supplied.)
K.S.A. 16a-5-109 statutorily defines and limits default for consumer credit transactions under the UCCC as follows:
“An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that
“(1) the consumer fails to make a payment as required by agreement; or
“(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor." (Emphasis supplied.)
See generally New Topic Ser. Am. Jur. 2d, Consumer Protection § 314; Annot., Construction and Effect of the Uniform Consumer Credit Code, 86 A.L.R.3d 317.
The parties agree plaintiff was current on her payments at the time default was declared and the repossession occurred in December, 1979. The trial court found the prospect of payment, performance or realization of collateral was significantly impaired and that repossession was therefore lawful pursuant to K.S.A. 16a-5-109(2).
The facts supporting such finding are as follows. On May 31, 1979, plaintiff (then Sandra J. Fuller) obtained a consumer credit loan for $6,500.00 from defendant credit union. The loan was for the purchase of a 1979 Ford Thunderbird automobile. The loan was secured by a security agreement which listed the Thunderbird as collateral along with a 1974 pickup truck. Ronald L. Fuller, plaintiff s then husband, was a cosigner of the security agreement. The purchase of the Thunderbird increased plaintiffs existing indebtedness at the credit union to $12,440.50. Interest was 12 percent per annum. Monthly payments were increased to $327.60 commencing June 30, 1979.
In May, 1979, Sandra Medling was employed by Western Electric Company at its plant in Johnson County, Kansas. The employees of this plant had established Wecoe Credit Union for their use. The credit union was owned by the employees of Western Electric in Johnson County, not by the company. There were approximately five hundred employees who had access to the credit union. Additionally, employee family members could use the credit union. One of the loan features of the credit union was employees could pay off their debts to the credit union by automatic payroll deductions. Plaintiff s $327.60 monthly payments were to be paid to the credit union through this automatic payroll deduction scheme.
In August, 1979, plaintiff and Ronald Fuller were divorced. A month later, September, 1979, plaintiff married Victor F. Medling. On November 27, 1979, plaintiff went to the credit union and visited with Mr. Max Erath, President of Wecoe. Plaintiff advised Mr. Erath she would be terminating her employment with Western Electric on January 4, 1980, and would then be moving to Michigan. Plaintiff further advised Mr. Erath she should be receiving an $8,000.00 tax refund and she would apply all of this to her debt. Plaintiff also wrote out her new address for Mr. Erath in Michigan as follows:
“Sandra Medling —268-6211
7619 Monrovia Lane
Shawnee, Kansas 66216
% Arn Haynes
200 Canter Lane
Holly, Michigan”
Mr. Erath’s notes of the conversation additionally reflected:
“11-27-79 am
Ext.
Sandra Fuller 6102
Payment 327.60 Loan Bal. 11209.67
Leaving date 1-4-80
Plans to apply approx. $8,000 before Leaving.
Who has 79 Ford She has
” ” 74 Chev PU He has”
Instead of terminating her employment as of January 4, 1980, plaintiff quit her Western Electric job immediately after the November 27, 1979, conversation with Mr. Erath. Upon learning plaintiff was no longer employed by Western Electric, Mr. Erath telephoned plaintiff on December 3, 1979. Plaintiff advised Mr. Erath she would come in to discuss her loan the same day but did not appear. The following day Mr. Erath again telephoned plaintiff who advised him she would be in to discuss her loan the same day. She did not appear. This same scenario occurred on December 5 and 7, 1979. Meanwhile Mr. Erath’s attempts to check out the Michigan address were unsuccessful. Additionally, there were questions relative to whether the cosigner (plaintiff s ex-husband, Ronald L. Fuller) was still employed and whether he continued to be a Kansas resident.
By December 7, 1979, although plaintiff was current on her loan payments, concern at the credit union over the loan was deepening. Among the factors causing anxiety to the credit union were:
1. Inability to get plaintiff to come in and discuss her loan, despite the four attempts.
2. Inability to get plaintiff to clarify her statements regarding a possible move to Michigan.
3. As of then, unsuccessful attempts to check out the Michigan address plaintiff had given the credit union in writing on November 27, 1979.
4. Status of cosigner’s employment and whether he was still in Kansas.
5. Knowledge plaintiff was now unemployed.
6. As plaintiff had quit her employment at Western Electric, the credit union no longer enjoyed payment by automatic payroll deductions.
7. A growing fear plaintiff was about to leave Kansas with the 1979 Thunderbird which was the principal collateral securing the credit union’s loan.
8. The amount of the loan was at the upper limits of the credit union’s loaning policy.
The executive committee of defendant credit union conferred relative to the loan and concluded the prospect for payment, performance or realization of the collateral was significantly impaired and the Thunderbird should be repossessed. On the night of December 9/10, 1979, repossession occurred péaceably, but without consent.
Although not necessary to the issue before us, the following events occurred subsequent to the December, 1979, repossession and should be stated in order to understand fully this lawsuit. Plaintiff contacted the credit union shortly after the repossession in order to secure return of the Thunderbird. The credit union rejected plaintiffs new husband, Victor F. Medling, as a cosigner, but accepted plaintiffs father, Floyd H. Bonham, as cosigner. The automobile was returned to plaintiff. Thereafter a long history of nonpayment and payment by insufficient fund checks unfolded. Ultimately, the credit union filed a replevin action and, upon securing a judgment therefor, the Thunderbird was turned over to defendant on February 23, 1981, and was subsequently sold.
Defendant credit union had the burden of proof under 16a-5-109(2) to establish the prospect of payment, performance, or realization of collateral was significantly impaired at the time of repossession. Plaintiff does not challenge the trial court’s determination the credit union had the burden of proving “significant impairment” by the preponderance of the evidence. As stated in McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 667 P.2d 289 (1983):
“[T]he general rule [is] that the ‘burden of proof on any point is upon the party asserting it . . . .’In re Estate of Wright, 170 Kan. 600, 604, 228 P.2d 911 (1951). Thus the defendant would have the burden to plead and prove his claims. Since the standard in all but a few specifically excepted civil cases is a preponderance of the evidence, the defendant would have the burden to prove his claims were more probably true than not.” 233 Kan. at 773.
Plaintiff denies receiving the telephone calls from Mr. Erath on December 3,4, 5 and 7, 1979, and relies heavily on this denial in contending the credit union failed to meet its burden of proof. In so doing, plaintiff improperly asks this court, on appellate review, to weigh the evidence. See Bell v. Tilton, 234 Kan. at 468.
It is undisputed that on November 27, 1979, plaintiff: (1) advised the credit union she was going to quit her job at Western Electric on January 4, 1980; (2) in fact, quit her job on November 27, 1979; and (3) was going to move to Michigan taking the automobile to an address which the credit union was unable to verify. Additionally, the trial court found that plaintiff was con tacted by the credit union on December 3, 4, 5 and 7, 1979, for the purpose of having her come to the credit union to explain the obvious inconsistencies between plaintiff s stated plans and her actual conduct. On each occasion plaintiff promised to come to the credit union shortly thereafter but did not appear. Plaintiff had been divorced from the cosigner of the loan subsequent to its execution. The cosigner was not an employee of Western Electric, and the cosigner was “apparently not very reliable.”
We conclude the findings of the trial court relative to this issue are supported by substantial competent evidence including the trial court’s conclusion the credit union was entitled to declare a default and repossess the automobile on the basis the prospect of payment, performance, or realization of the collateral was significantly impaired. K.S.A. 16a-5-109(2).
The second issue is whether the trial court erred in not holding the repossession was unlawful for failure to give prior notice of default pursuant to K.S.A. 16a-5-110.
K.S.A. 16a-5-110 provides:
“(UCCC) Notice of consumer’s right to cure. (1) After a consumer has been in default for ten (10) days for failure to make a required payment in a consumer credit transaction payable in installments, a creditor may give the consumer the notice described in this section. A creditor gives notice to the consumer under this section when he delivers the notice to the consumer or delivers or mails the notice to the address of the consumer’s residence (subsection (6) of section 16a-1-201).
“(2) The notice shall be in writing and shall conspicuously state: The name, address, and telephone number of the creditor to which payment is to be made, a brief description of the credit transaction, the consumer’s right to cure the default, and the amount of payment and date by which payment must be made to cure the default. A notice in substantially the following form complies with this section:
(Name, address, and telephone number of creditor)
(Account number, if any)
(Brief description of credit transaction)
_is the LAST DAY FOR PAYMENT
(Date)
_is the AMOUNT NOW DUE
(Amount)
“You are late in making your payment(s). If you pay the AMOUNT NOW DUE (above) by the LAST DAY FOR PAYMENT (above), you may continue with the contract as though you were not late. If you do not pay by this date, we may exercise our rights under the law.
“If you are late again in making your payments, we may exercise our rights without sending you another notice like this one. If you have questions, write or telephone the creditor promptly.” (Emphasis supplied.)
The Kansas comment following 16a-5-110 states:
“This section, giving the consumer an opportunity to cure a default, is new to Kansas law. It works this way: If a consumer misses an installment payment due on April 10, the creditor must wait until April 20, at which point he may send to tne consumer a written notice indicating the default and the amount due. The ‘last day for payment’ would be shown as May 10, the end of the cure period as provided in 16a-5-lll. A notice in substantially the same form as provided in this section will suffice. The philosophy of this section, and the next, is to give the consumer a fair opportunity to bring his payments current before acceleration, repossession, or suit. This notice form applies only in the case of a missed installment; there is no such requirement when the default involves a ‘substantial’ impairment of the prospect for payment or realization .on the collateral. [See 16a-5-109]. On the other hand, it should be obvious that the missing of an installment by itself is insufficient to constitute a ‘significant impairment.’ ” (Emphasis supplied.)
The specific language of the statute and the Kansas Comment following the statute show there is no requirement of notice prior to repossession where the default is predicated upon substantial impairment of collateral pursuant to 16a-5-109(2) as opposed to failing to make an installment payment under 16a-5-109(l).
There are reasons why no notice is required in default for the prospect of substantial impairment situations. Where default occurs under 16a-5-109(2) the prospects of a continuing relationship between the creditor and the debtor is endangered, so such default is not subject to cure. Miller & Warren, 1974 Uniform Consumer Credit Code, 23 Kan. L. Rev. 619, 646, n. 255 (1975). When default is not subject to cure there is no need to give notice. As one commentator has noted, it is important to observe from the statutory language of 16a-5-110, notice is only relevant when installment default is involved. Murray, Summary Repossession, Replevin, and Foreclosure of Security Interests, 46 J.K.B.A. 93, 95 (1977).
“Equally important is the fact that the type of default contemplated involves only the failure to pay a required installment. Thus, if the debtor is in default for having allowed the insurance coverage on his secured automobile to lapse (and assuming that such a default satisfies the creditor’s burden under the UCCC of demonstrating that the prospect of payment, performance or realization upon its collateral is significantly impaired), no notice of right to cure is required. ” 46 J.K.B.A. at 95. (Emphasis supplied.)
The security agreement herein provided repossession could be had without prior notice. As previously noted, 16a-5-110 does not require notice in this type of default and hence the agreement of the parties was not in violation of the UCCC. We conclude this issue is without merit.
For her third issue plaintiff contends the trial court erroneously considered her post-repossession nonpayment conduct in concluding the December, 1979, repossession was lawful. While the trial court discussed the post-repossession facts, it specifically stated that in determining the lawfulness of the repossession it did not “have to look at the post-repossession facts to arrive at that decision.” We find no reversible error relative to this issue.
The first three issues heretofore decided all relate to the December, 1979, repossession of the automobile. The fourth issue relates to the sale of the automobile after it was delivered to the credit union in February, 1981, following a successful replevin action. The fourth issue may be stated as follows: Did the trial court err in finding the April, 1981, sale of the replevined automobile was commercially reasonable and, as a result thereof, err in entering a deficiency judgment against plaintiff?
K.S.A. 16a-5-103(l) provides:
“(1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (section 16a-3-405); a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner.” (Emphasis supplied.)
Creditor misbehavior in failing to sell the collateral in good faith and in a commercially reasonable manner is an absolute bar to a deficiency judgment under K.S.A. 16a-5-103(l) of the UCCC, but is not an absolute bar to a deficiency judgment under the Uniform Commercial Code (UCC), K-S.A. 84-1-101 et seq. The distinction was discussed in Westgate State Bank v. Clark, 231 Kan. 81, 642 P.2d 961 (1982), as follows:
“We have considered these two lines of cases and have concluded that the Kansas courts should distinguish between consumer transactions under the UCCC and nonconsumer transactions under the UCC. In consumer transactions, where there is creditor misbehavior such as failure to sell in a commercially reasonable manner, a claim for a deficiency judgment is absolutely barred. K.S.A. 16a-5-103 specifically so provides. When, however, the debtor is a commercial entity, the Kansas courts should use the rebuttable presumption approach. It cannot be denied that the more sophisticated debtor is in a better position to grapple fairly with the creditor as to whether the sale was commercially reasonable or whether the unpaid balance of the debt exceeds the fair market value of the collateral. Furthermore, since the legislature did not see fit to include in the UCC, K.S.A. 84-1-101 et seq., an express provision barring absolutely a deficiency judgment in cases of creditor misbehavior, the courts should hesitate to adopt such a rule. We further are impressed by the philosophy of the UCC which emphasizes good faith and reasonableness on the part of the parties with a view of avoiding penalty damages.
“To summarize, we hold as follows: Where a secured creditor sells the collateral in other than a commercially reasonable manner, the secured party is not absolutely barred from recovering a deficiency judgment from the debtor as a matter of law. In an action brought by a secured creditor for a deficiency judgment after a sale of the collateral in other than a commercially reasonable manner, there is a rebuttable presumption that the value of the collateral was equal to the unpaid balance of the debt and the burden of showing otherwise is on the secured creditor. The debtor is entitled to have the trier of fact calculate the damages which he suffered as a result of the unreasonable conduct and to have that amount set off against the amount the creditor would otherwise be entitled to recover.” 231 Kan. at 90.
What is a commercially reasonable sale under the Uniform Consumer Credit Code? While the concept of commercially reasonable disposition of repossessed collateral under the Uniform Commercial Code has been widely considered, e.g., Westgate State Bank v. Clark, 231 Kan. 81; Hall v. Owen Co. State Bank et al, 175 Ind. App. 150, 370 N.E.2d 918 (1977), 7 A.L.R. 4th 285; Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 4.8 (1980); White & Summers, Uniform Commercial Code § 26-11 (2d ed. 1980); Comment, Uniform Commercial Code: Deficiency Judgments in a Commercially Unreasonable Setting, 22 Washburn L. J. 160 (1982); Note, Uniform Commercial Code: Aspects of a Commercially Reasonable Sale of Repossessed Property, 19 Washburn L. J. 123 (1979); Comment, Commercial Reasonableness Under the Uniform Commercial Code, 33 Tenn. L. Rev. 211 (1966); and Annot., What is “Commercially Reasonable” Disposition of Collateral Required by UCC § 9-504(3), 7 A.L.R. 4th 308, there is a dearth of information specifically relating to commercially reasonable disposition under the Uniform Consumer Credit Code.
Kansas Comment 1 of 16a-5-103 states:
“Where there has been a default with respect to a secured consumer credit transaction, the rights of the creditor and debtor are controlled by part 5 (Default) of UCC article 9 (K.S.A. 84-9-501, et seq.), except to the extent that such rights are changed by this act (see K.S.A. 84-9-203).”
As the Kansas Comment reveals, in consumer credit transactions involving default, the Kansas Uniform Consumer Credit Code governs. However, when the UCCC is silent on consumer default, then the UCC provisions on default (K.S.A. 84-9-501 et seq.) are to be applied. Consequently, as the UCCC does not define what is a commercially reasonable disposition of repossessed collateral in a consumer credit transaction, courts may refer to UCC decisions in determining what is a commercially reasonable disposition of collateral.
In Westgate State Bank v. Clark, 231 Kan. 81, this court considered commercially reasonable disposition under the UCC. In Westgate we held:
“Where a secured creditor brings an action for a deficiency judgment after sale of the collateral, the burden of proof as to the commercial reasonableness of the sale is on the plaintiff creditor.”
“Whether or not a sale of collateral by a secured creditor was conducted in a commercially reasonable manner is a question of fact to be determined by the trier of fact from a consideration of all relevant factors in the particular case.” Syl. ¶¶ 4 and 5.
In Westgate a number of factors which might be relevant were discussed. Following the list of factors we stated:
“The above list of suggested factors is not intended to be exclusive and should not prevent a court from considering other relevant factors in a particular case.
“As noted heretofore, it is the philosophy of the UCC that the debtor and the secured creditor, in their dealings, should act toward each other in good faith and in a reasonable manner. In every case, that should be the ultimate test to be applied by a trial court in determining the issue of commercial reasonableness. Since the issue of commercial reasonableness is usually one of fact, the decision of the trial court will be sustained on appeal when there is substantial, competent evidence to support its findings.” 231 Kan. at 95.
We see no legitimate reason why the Westgate rationale should not be applied to determining whether or not a sale of collateral was commercially reasonable under the UCCC.
The activities of defendant credit union relative to the sale of the Thunderbird may be summarized as follows. Defendant regained possession of the automobile in late February, 1981. An official of the credit union testified the automobile was dirty when received and he, personally, cleaned the vehicle, but was unable to remove a grease spot on the front seat. It would have cost $35.00 to $40.00 to have the automobile professionally cleaned. There was no evidence that professional cleaning would have significantly increased the value of the vehicle.
Before offering the automobile for sale the credit union committee consulted the National Auto Research publication “Black Book” for April-May, 1981. The relative values for financing, wholesale and retail were established at $3,965.00, $4,375.00 and $5,075.00. The credit union considered the possibility of consigning the car to a dealer for sale but rejected consignment because it would cost approximately $400.00. The consignment cost, if the credit union had opted for this sale method, would have been taxed to plaintiff. The credit union also considered the possibility of public advertising but eventually decided to sell the 1979 Thunderbird through bid solicitations from Western Electric employees and family members. One of the factors in this determination was Western Electric policy precluded commercial selling to the public on company property.
The car was offered for sale to approximately five hundred Western Electric employees and their families by posting on bulletin boards at the Western Electric plant notice of sale and request for bids on the car. The bid notices were posted for two weeks, during which time the motor vehicle was available for inspection in- the Western Electric parking lot. Copies of the notice of sale were sent to all parties on the financing note. Approximately six bids were received. The highest bid was $3,800.00. The credit union considered all bids too low and rejected them.
After the aborted attempt to sell the motor vehicle by a request for bids from Western Electric employees and family members, Mr. Schweiger, an official of the credit union, contacted two local Ford dealerships to solicit bids from them. Both dealerships, Schlozman Ford and Shawnee Mission Ford, indicated the market for 1979 Thunderbirds was sluggish. The softness in the market for Thunderbirds was apparently due to their perception by the public as “gas-guzzlers,” and the public was then interested in fuel-efficient automobiles.
Schlozman Ford declined to submit a bid on the Thunderbird. At the time Schlozman Ford had two Thunderbirds on its lot and had been having difficulty selling them. Schlozman Ford was not interested in acquiring a third Thunderbird. After considerable coaxing by the credit union, Shawnee Mission Ford submitted a bid of $4,200.00. On March 24, 1981, the credit union advised plaintiff it had rejected all bids as too low.
The credit union decided to make one last attempt at requesting bids from Western Electric employees and family members and repeated its prior procedure of posting notices on Western Electric bulletin boards requesting bids. Unlike the earlier occasion, however, the credit union set a minimum bid of $4,200.00 — the bid which had been submitted by Shawnee Mission Ford.
The second request for bids proved more successful. A bid of $4,606.00 was received — four hundred dollars higher than Shawnee Mission Ford was willing to pay. The $4,606.00 bid was accepted. The proceeds of the sale were applied to plaintiff s debt, which then totaled $10,683.59. After deducting costs of the sale, a deficiency balance of $6,978.60, plus interest from April 10, 1981, was established. The credit union advised plaintiff of the sale, the resulting deficiency, and of her redemption rights.
Plaintiff contends the credit union should have advertised the Thunderbird to the general public. Plaintiff produced a car dealer, Mr. Hoffman, a sales manager for Olathe Ford, who testified the suggested retail price of the vehicle was $6,000.00 to $6,250.00 during the applicable time period.
In holding the sale was in good faith and commercially reasonable, the trial court stated:
“The Court feels that the sale of the vehicle although it could have been done possibly better with more in the way of advertising marginally is a commercially reasonable sale. The Court is not an expert in the values of vehicles, however, the Court did have testimony for it that a dealer would fry to pay slightly less than the amount of money that the Credit Union got for the vehicle. The Credit Union also by summing it in this way did hot have to pay additional charges for its sale which is something that a car dealer writes into the price that he sells the vehicle. This is a credit union who is repossessing it. Mrs. Medling [plaintiff] had been a longtime member of the Credit Union. She has I think at least constructive notice as to how things work at the Credit Union and it’s up to the Credit Union to do the best they can in selling these vehicles but they don’t have to do everything that a car dealer should do as long as the price that they get is reasonable. Now, there is a dispute as to what is the exact reasonable cost and the price of the car and the Court wasn’t helped a whole lot by the welter of the different figures by black, red and whatever other color books are used by the various dealers. We do know that at the time of the eventual sale of this vehicle two dealerships were contacted. One of them considered the Thunderbird not an attractive item at all and refused even to put in a low bid of $3,800 or whatever on the vehicle, just wasn’t interested at all, and the other dealership after some prodding and in an effort by the Credit Union to put in a bid of $4,200 which would have been substantially lower than Mr. Hoffman said he would have been willing to pay but, of course, at that time I don’t know if he had a dealership then but he didn’t see the vehicle and he did not place any bid at that time. So, we are rather looking retrospectively back on this and I think all things considered the sale was commercially reasonable. The price was given on the car was on the low side but not so low as to raise suspicion that it was sold at a loss or sold for any reasons — reason other than to obtain as much money as possible to decrease the amount that was still owed.”
We conclude the findings of the trial court that the sale of the automobile was made in good faith and was commercially reasonable are supported by substantial competent evidence and, accordingly, they will not be disturbed upon appeal. Based thereon, we further conclude the trial court did not err in entering a deficiency judgment against plaintiff on the counterclaim of defendant credit union.
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The opinion of the court was delivered by
McFarland, J.:
Daniel Allen Wood appeals his jury trial convictions for aggravated sodomy (K.S.A. 21-3506); aggravated battery of a law enforcement officer (K.S.A. 21-3415); aggravated kidnapping (K.S.A. 21-3421); aggravated burglary (K.S.A. 21-3716); aggravated assault (K.S.A. 21-3410); three counts of aggravated assault of a law enforcement officer (K.S.A. 21-3411); two counts of rape (K.S.A. 21-3502); and two counts of felony theft (K.S.A. 21-3701).
Highly summarized, the events from which the. twelve felony convictions arose commenced on the morning of December 9, 1982, when two Kansas City, Missouri, police officers noticed a suspicious vehicle in their city. The officers activated their emergency equipment and the suspect vehicle sped away. A high-speed chase ensued which ended in Johnson County, Kansas, where the defendant (driver of the fleeing vehicle) forced his way into an apartment, taking the female occupant thereof as hostage. All of the crimes against persons occurred in or near the apartment building. The hostage escaped after several hours of confinement and defendant was then arrested. Additional facts will be stated in the discussion of particular issues as necessary.
The first issue is alleged error in the trial court’s refusal to change venue. During the hours the hostage was being held prisoner, there was extensive media coverage devoted to the incident. Public interest in the case remained rather high through the trial.
In State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), the law relative to trial venue was summarized as follows:
“The law favors a trial, criminal or civil, taking place in the locality from which the litigation arises. This view is by no means new and dates well back into Anglo-Saxon common law. In Crocker v. Justices of the Superior Court, 208 Mass. 162, 94 N.E. 369 (1911), the Massachusetts Supreme Judicial Court observed:
“ ‘It was the common law that the indictment for a crime must be found and tried in the county where it occurred, and ordinarily this principle was applied with great strictness.’ 208 Mass, at 167.
The federal and Kansas constitutions, Kansas statutes, and Kansas judicial pronouncements reflect the common law on venue.
“Amendment Six of the United States Constitution reads:
“ ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .’ (Emphasis supplied.)
Section Ten of the Kansas Bill of Rights provides:
“ ‘In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.’ (Emphasis supplied.)
“Consistent with the federal and state constitutions and the common law policy of a trial taking place in the locality, K.S.A. 22-2616(1) declares:
“ ‘In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.’
The Kansas statute reflects a balancing of the constitutional right to a fair and impartial trial and the constitutional declaration and common law belief that a trial occur in the county wherein the crime shall have been committed.
“Recently the court in State v. Shaffer, 229 Kan. 310, 624 P.2d 440 (1981), discussed the matter of change of venue as follows:
“ ‘A change of venue will be granted a defendant when he or she can show prejudice has reached the community to the degree that it is impossible to get an impartial jury. Such prejudice may not be established by speculation but must be shown by specific facts or circumstances. State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). Media publicity has never established, prejudice per se. State v. May, 227 Kan. 393, 395, 607 P.2d 72 (1980). The granting of a change of venue lies within the sound discretion of the trial court. The burden is on the movant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality.’ 229 Kan. at 320.
In State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977), we concluded:
“ ‘Thus, it has been held (1) the burden of proof is on defendant, (2) not only prejudice must be shown but it must be such prejudice as to make it reasonably certain the defendant cannot obtain a fair trial, (3) there must be more than speculation, (4) the state is not required to produce evidence refuting that of the defendant, and (5) granting a change of venue lies within the sound discretion of the trial court and its ruling will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant.’ 223 Kan. at 280.” 232 Kan. at 295-96.
The record reflects there was no particular difficulty encountered in selecting the jury, the process taking less than a day. Defendant relies only upon media publicity in support of his claim of prejudice herein. As we recently iterated in State v. Richard, 235 Kan. 355, 681 P.2d 612 (1984):
“A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. The defendant must show prejudice has reached the community to the degree it is impossible to get an impartial trial.” Syl. ¶ 5.
We conclude no abuse of discretion has been shown in the trial court’s refusal to change the venue of the trial herein.
For his second issue defendant contends the trial court erred in refusing to strike the entire jury panel for cause after a prospective juror indicated she believed the defendant was guilty.
During voir dire examination the State was asking questions about whether any of the pretrial publicity had affected potential jurors. One of the potential jurors was a Ms. Rita Summers who on the day of the incident had been listening to police radio communication on her police radio scanner. The following exchange occurred between Mr. Dennis Moore, prosecuting attorney, Ms. Summers and the court.
“MR. MOORE: Thank you. Very good.
“The third row. How many people there? Rita Summers, is that correct?
“VENIREWOMAN SUMMERS: Yes, radio, television, and I have a scanner in my home and I would definitely be prejudiced he was guilty.
“MR. MOORE: You heard something—
“THE COURT: Excuse me. Mr. Moore has stated in asking these questions, he is not asking what your opinion is. I would instruct the jurors whether you have an opinion about guilty or not being guilty, innocent, he is not asking that you state what your opinion is. I am instructing the jury to not state what your opinion is. He is simply asking if you have an opinion, if that is such that it would affect your service as a juror. Obviously we don’t want any member of this jury panel to taint the rest of the jury. You may have an opinion one way or the other, but we are not asking that you express that opinion so that the other jurors will have the benefit of your prejudice one way or the other. And I hope that you all understand that. Mr. Moore made that clear. Please do not express your opinion.
“MR. MOORE: Mrs. Summers, do you believe that based on what you saw and heard you could not be a fair and impartial juror; is that correct?
“VENIREWOMAN SUMMERS: Yes.
“MR. MOORE: You would ask that the Court excuse you on that basis?
“VENIREWOMAN SUMMERS: Yes.
“MR. MOORE: I ask that she be excused.
“THE COURT: Mrs. Summers may be excused for cause.
“(Whereupon at this time, Linda D. Gary was called to replace Rita M. Summers.)” (Emphasis supplied.)
No contemporaneous request to strike the jury panel for taint was made by defense counsel. Ultimately, defense counsel passed the panel for cause.
After the jury had been selected (but not sworn) the jury members and alternates were dismissed until the following morning. Subsequent thereto, but before the jury was sworn the following day, defense counsel moved to dismiss the selected jury for alleged taint from the Summers remark.
We conclude defendant’s failure to object contemporaneously, coupled with his affirmative act of passing the jury for cause, waived any complaint defendant may have had relative to the Summers statement. It should also be noted there was never an issue in the trial relative to the identity of the perpetrator of the crimes. The defense centered around the mental capacity of the defendant and whether his acts constituted the crimes charged.
For his third issue defendant contends the rape statute then in effect (K.S.A. 21-3502) unconstitutionally discriminates against men.
At the time of the incidents herein, the operative Kansas rape law was found at K.S.A. 21-3502 which defined rape as being a sexual act committed by a man against a woman not his wife. This same challenge was raised and rejected by this court in State v. Price, 215 Kan. 718, 529 P.2d 85 (1974), wherein we said:
“A classification based upon sex can properly be made if it meets certain standards. (Wark v. State [Me. 1970], 266 A.2d 62.) We believe the sexual classification appearing in K.S.A. 1973 Supp. 21-3502 is not arbitrary, but reflects a rational and justifiable distinction. It is unnecessary to engage in an extended dissertation on the physiological differences between sexes, suffice it to say they exist. One of the more obvious reasons for the existence of our statute is to protect women against sexual attack and forced pregnancy. In view of the fact that only members of the female sex are susceptible to pregnancy as a result of the conduct proscribed by this statute, the reasonableness of the classification is apparent. (Green v. State [Miss. 1972], 270 So.2d 695; In re W.E.P. [D.A. App. 1974], 318 A.2d 286; and State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213.)” 215 Kan. at 723.
See Annot., Constitutionality of Rape Laws Limited to Protection of Females Only, 99 A.L.R.3d 129.
Defendant’s position on this issue has fared no better before the United States Supreme Court. E.g., Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 67 L.Ed.2d 437, 101 S.Ct. 1200 (1981). We conclude this issue is without merit.
The fourth issue is whether the trial court erred in refusing to merge the two rape counts into one count of rape. The facts surrounding the two rape counts must be examined carefully. At about 12:15 p.m. defendant forced his way into the victim’s apartment. At about 1:00 p.m. defendant forced the victim to disrobe, whereupon he dragged her into the bedroom and raped her. Immediately thereafter defendant ordered the victim to get dressed and they returned to the living room. Retween 3:30 and 4:00 p.m. defendant again ordered the victim to disrobe, raped her in the living room and ordered her to get dressed. The two rapes herein were clearly separate incidents and are readily distinguishable from the facts of the three attempted rape convictions discussed in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978), which the majority of this court held were merged into one attempted rape. We conclude the trial court did not err in refusing to merge the two rape charges into one.
For his fifth issue defendant contends the trial court erred in refusing to give defendant’s requested instruction on diminished capacity. In his brief defendant concedes:
“There is clearly no case authority in this jurisdiction to support Appellant’s contention. In fact the most recent case on this point, State vs. Grauerholz, 232 Kan. 221, [654 P.2d 395] (1982), openly rejects Appellant’s contention.
“ ‘This court has consistently refused to adopt any test other than the M’Naghten test for insanity, and we steadfastly adhere to our prior opinions on the subject.’ ”
The court’s rationale for rejecting the diminished capacity doctrine was discussed in State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980), as follows:
“The doctrine of diminished or reduced mental capacity has been rejected by most jurisdictions on the rationale that insanity is an ‘all or nothing’ proposition. Other states, although rejecting the doctrine, allow introduction of evidence of a defendant’s abnormal mental condition for the purpose of rebutting the specific intent element of the crime. An excellent discussion of the issue can be found at 22 A.L.R.3d 1228, Mental and Emotional Condition as Diminishing Responsibility for Crime. The doctrine of diminished mental capacity, ■ while never specifically rejected by this court, is inconsistent with the law of this state and we decline to adopt it. In People v. Goedecke, 65 Cal. 2d 850, 56 Cal. Rptr. 625, 423 P.2d 777, 22 A.L.R.3d 1213 (1967), it was acknowledged that the defense of diminished mental capacity ‘ameliorates’ the M’Naghten test for insanity. This court has steadfastly adhered to the M’Naghten test for insanity. State v. Levier, 226 Kan. 461, 465, 601 P.2d 1116 (1979); State v. Sandstrom, 225 Kan. 717, 731, 595 P.2d 324 (1979); State v. Sanders, 225 Kan. 147, 155, 587 P.2d 893 (1978); State v. Smith, 223 Kan. 203, 574 P.2d 548 (1977).” 228 Kan. at 332.
We continue to steadfastly adhere to the M’Naghten test for insanity and to reject the doctrine of diminished or reduced mental capacity as a substitute therefor. Accordingly, the trial court did not err in refusing to instruct the jury on the doctrine of diminished capacity as requested by the defendant.
The sixth issue is whether the trial court erred in not merging two of the aggravated assault on a law enforcement officer counts into the aggravated assault charge.
After the defendant had holed up in the apartment and taken the occupant thereof hostage, law enforcement officers converged on the area. One of the officers in immediate pursuit had been shot in the hand by the defendant just prior to defendant entering the apartment complex. (The facts relative to this incident will be discussed in greater detail in another issue.) Police officers knew defendant was in an. apartment but due to poor acoustics could not ascertain in which of two apartments defendant was located. Detective Kramer and Officer McBride (both Missouri police officers) were in the stairwell talking to defendant trying to get him to surrender. Another officer was also present. Defendant fired a number of shots through the apartment door. Another shot was fired over the head of the hostage who was sitting in a chair which backed up to the apartment wall adjacent to the stairwell. This latter shot carried through the wall and possibly was the one that narrowly missed Detective Kramer. Two of the three aggravated assault charges against a law enforcement officer were predicated upon the shooting into the stairwell incident (door and wall shots). Defendant contends the shot over the hostage’s head was an assault on her alone and the fact the bullet narrowly missed an officer on the other side of the wall does not form the basis of an -assault charge on the officer.
The question of whether a single act affecting multiple victims constitutes. a single or multiple offense has been a matter of considerable debate by courts in this country. See Annot., Single Act Affecting Multiple Victims as Constituting Multiple Assaults or Homicides, 8 A.L.R.4th 960.
In this issue defendant appears to take the position that the shot aimed at the hostage is the only shot involved. The evidence is undisputed numerous shots were fired through the door. This is not a single shot giving rise to multiple victims situation.
The facts herein are distinguishable from those in State v. Duncan, 3 Kan. App. 2d 271, 593 P.2d 427 (1979). In Duncan, defendant fired one shot at an officer and two more at the hasp and padlock on a locked door. The defendant was trying to open the door so he could escape when he fired the door shots. He had no reason to suspect there was another officer on the other side of the door. Defendant was convicted of three counts of aggravated assault on a law enforcement officer. The Court of Appeals held the only assault was of the officer at whom defendant had fired directly. The Duncan opinion held inter alia:
“Assaults with a firearm upon each of several law enforcement officers occurring during one episode, but at different times, constitute separate offenses of aggravated assault upon each of the law enforcement officers.” Syl. ¶ 1.
We conclude the trial court did not err in refusing to merge two of the aggravated assault against a law enforcement officer counts into the aggravated assault charge.
The seventh issue is related to the sixth issue. In this issue defendant contends the two aggravated assault against a law enforcement officer convictions arising from the stairwell incident, are improper because defendant did not know precisely where the officers were located when he fired the shots. In his brief defendant states:
“In every pertinent case that appellant found concerning assault generally there was some apparent direct contact where the accused and his victim could see one another. This is not meant to say that there could not be a situation where an assault could occur without direct confrontation. This though is not the case.”
No “pertinent case” is cited. Indeed no authority of any specie in support of defendant’s position is stated.
Defendant knew there were police officers in the stairway barring his escape. He fired the shots to injure or frighten them. The fact he did not know precisely where the officers were located is of no consequence. We conclude this issue is without merit.
For his eighth issue defendant contends his convictions, for aggravated battery against a law enforcement officer and for the aggravated assaults against law enforcement officers are invalid on the basis the victims were Missouri officers. K.S.A. 22-2404, Kansas’ version of the Uniform Fresh Pursuit Law, provides:
“(2) Any law enforcement officer of another state who enters this state in fresh pursuit and continues within this state in fresh pursuit of a person in order to arrest him on the ground that he has committed a crime in the other state has the same authority to arrest and hold such person in custody as law enforcement officers of this state have to arrest and hold a person in custody.”
Detective Wharton, a Kansas City, Missouri, officer, was in the original pursuing police car which chased defendant from Missouri to Kansas. After defendant’s vehicle collided with another automobile, defendant took off running with Detective Wharton in pursuit. Just outside the apartment building defendant turned and shot the officer in the hand.
Defendant concedes Detective Wharton was in “hot pursuit” when he was shot. Defendant contends, however, the officer did not reasonably suspect defendant had committed a crime in Missouri. The record reflects the officer’s attention was first directed to defendant by virtue of his vehicle being an expensive late-model Mercedes-Benz convertible located in a low-income area of the city. Additionally the vehicle had only one license plate and Missouri law requires two. When the officers activated their emergency equipment to stop the vehicle, it sped away. During the ensuing high-speed chase the officers learned from a radio dispatcher the vehicle matched the description of a vehicle recently stolen. It is unclear whether the radio dispatch was received while the chase was in Missouri or Kansas. To state the facts is to answer the question raised by this point. Clearly the officers had reason to believe a crime had been committed in their state. The vehicle was in violation of the law by'■'being operated with only one license plate (adequate cause for stopping the vehicle). In addition there were traffic violations occurring during the chase. The added element of the vehicle having been suspected of being stolen is unnecessary to the issue raised.
Offhandedly defendant questions the law enforcement officer status of McBride and Kramer (the officers in the stairwell shooting incident). The pursuit of defendant did not end when he took the hostage and holed up in the apartment — it ended when the defendant was arrested. These officers were a part of the continuing pursuit. We conclude this issue, in its entirety, is without merit.
For his ninth issue defendant contends the officer victims herein had not previously properly identified themselves as law enforcement officers and hence the various convictions for offenses against law enforcement officers were improper. In State v. Bradley, 215 Kan. 642, 527 P.2d 988 (1974), this court held:
“Under K.S.A. 1973 Supp. 21-3411 an aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21-3410, committed against a uniformed or properly identified law enforcement officer while such officer is engaged in the performance of his duty.” Syl. ¶ 1.
“A ‘properly identified’ law enforcement officer under K.S.A. 1973 Supp. 21-3411 is one who has been identified in such a manner to the defendant that he reasonably should know him to be a law enforcement officer.” Syl. ¶ 2.
“To sustain a conviction under K.S.A. 1973 Supp. 21-3411, proscribing an aggravated assault upon a law enforcement officer in the performance of his duty, it is not necessary that the state prove the defendant had actual knowledge that the person assaulted was a law enforcement officer.” Syl. ¶ 3.
“An officer-victim under K.S.A. 1973 Supp. 21-3411, proscribing an aggravated assault upon a law enforcement officer engaged in the performance of his duty, need not personally identify himself as a law enforcement officer to the defendant. The statute merely requires that the officer-victim be properly identified without designating the method.” Syl. ¶ 4.
With this in mind, we shall look at the facts relative to each officer-victim. Detective Wharton was in plain clothes in an unmarked vehicle. Upon observing defendant’s vehicle was only displaying one license plate, emergency equipment (light and siren) was activated. Defendant declined to stop and sped from the scene. A chase ensued at speeds exceeding 100 m.p.h. After defendant’s vehicle collided with another automobile, defendant fled the scene on foot with Detective Wharton in pursuit. No conversation occurred between the two. Defendant shot the detective in the hand and ran into a nearby apartment complex. He then forced his way into an apartment, stating he had just shot a cop in the hand. Obviously, there was sufficient evidence from which the jury could have concluded defendant reasonably should have known Detective Wharton was a police officer at the time he fired upon him.
Next we will consider the facts relative to the two stairwell assaults (Detective Kramer and Officer McBride). The detective was in plain clothes; the officer was in uniform. Defendant could not see either officer so their attire is irrelevant. Approximately two hours elapsed between defendant entering the apartment and the shots being fired. During this time these officers and others were trying to talk defendant into surrendering without harming the hostage. It is clear there was abundant evidence from the totality of the circumstances from which the jury could have concluded the defendant reasonably should have known the men in the stairwell were law enforcement officers.
Next we will consider the facts relative to the assault on Officer Baldwin. This officer was a member of the Overland Park Response Team which is a special police group of the genre commonly referred to as a SWAT unit. The officer was clothed in a dark jumpsuit with a dark baseball cap. He was stationed below an evergreen which gave him a view of the window of the apartment involved in the seige. He was armed with a rifle carrying a telescopic sight. At about 4:07 p.m., with some thirty law enforcement officers on the scene, defendant fired shots in the vicinity of the evergreen. At the same time defendant stated he was “going to kill the guy in the bushes.” Defendant had been under police seige several hours at the time. We conclude there was ample evidence from which the jury could conclude defendant reasonably should have known Officer Baldwin was a law enforcement officer at the time he fired upon him. We find this issue, in its totality, wholly without merit.
For his tenth issue defendant contends the sentences imposed were excessive. All sentences were within the statutory limits. The sentences imposed were as follows: felony theft (the automobile) — 3 to 5 years; aggravated battery on a law enforcement officer — 5 to 20 years; aggravated kidnapping — life; aggravated burglary — 3 to 10 years; aggravated assault (hostage)— 3 to 5 years; aggravated assaults of three law enforcement officers — 5 to 10 years on each; rape — 15 years to life on each of the two counts; felony theft (the gun) — 2 to 5 years; and aggravated sodomy — 15 years to life. The sentences imposed for aggravated kidnapping, the two rapes, and the aggravated sodomy were ordered to run consecutively.
All sentences are within the statutory limits therefor. There is no contention the trial court did not consider the sentencing criteria set forth in K.S.A. 21-4606. Defendant intentionally endangered the lives of many persons during his crime spree. He terrorized, degraded, and brutally attacked his hostage sexually. The victim finally escaped the nightmare situation by jumping from her upper-floor apartment whereby she was seriously injured. Defendant then aimed his gun at the woman as she tried to crawl away, but retreated when he was fired upon by the police. This scenario was repeated once more before the hostage could crawl to safety. We do not find any error or abuse of discretion in the sentences imposed herein.
All other issues raised by defendant have been considered and are held to be without merit.
The judgment is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
Martha Olson, the plaintiff in an action against J. A. Tobin Construction Company (Tobin) and the State Highway Commission, now the Kansas Department of Transportation (KDOT), for damages to her real property resulting from a highway construction project, appeals from a decision of the district court granting summary judgment on the grounds plaintiff s claims were barred by the statute of limitations. The only issue before this court is whether the trial court was correct in its application of the statute of limitations.
Plaintiffs petition sought recovery from defendants on theories of negligence and strict liability. She claimed damage to a pond on her property, damage to the foundation and cistern of her new house, and the destruction of fences along part of her land. Reading the record in the light most favorable to the plaintiff, the party who defended against the motion for summary judgment, as we must on appeal (McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 [1983]), the facts of this case are as follows.
Defendants’ construction of the highway began in 1977. Evidently a portion of plaintiff s property, including her home, was purchased by the State for highway right-of-way. Kenneth Olson, plaintiff s son, began construction in the spring of 1978 of a new home for his mother on the remaining portion of the property. The concrete foundation for the new home was poured in April or May of 1978. Tobin, in its construction of the new highway, was conducting blasting operations at this same time within about one-eighth of a mile of plaintiff s construction. In May or June, Kenneth Olson discovered a hairline crack in the north wall of the new basement. He called this to the attention of the Tobin employee in charge of the dynamite operation and, after viewing it, the employee made representations to the effect they would return after the blasting was completed. Plaintiff construed this to mean representatives of Tobin or KDOT would return at a later date to inspect and discuss any damage. The initial blasting continued throughout the summer of 1978 until August or September. Blasting was resumed in late 1978 and continued into 1979 with the last blasting being done in September, 1979. At its closest point the blasting occurred within one hundred feet of plaintiff s new home. When plaintiff and her son moved into the home April 1, 1979, they did not make any further inspections for damage to the foundation. However, in March, 1980, Kenneth Olson discovered fourteen or fifteen cracks in the foundation walls running from the ceiling to the floor. Upon completion of the blasting operations no one from Tobin or KDOT returned to talk to plaintiff or her son about the original damage. It is alleged that the additional cracking of plaintiff s basement walls occurred from the blasting operations carried on in late 1978 or early 1979.
Plaintiff also suffered damage to a one-acre pond which had been on her property since 1976. While the findings of the trial court are confused, Tobin evidently began construction of an elevated dirt fill to form the base of the highway in the spring or early summer of 1978. The testimony is conflicting whether the dirt fill was completed in September of 1978 or not until the spring of 1979. In either case a ditch resulted running from the highway fill to plaintiff s pond, carrying water, mud, soil and silt from the fill. This soil settled and accumulated in plaintiffs pond. When the pond was built in 1976, it was one acre in size, with a depth of ten to twelve feet. The erosion from defendants’ fill caused an accumulation of four to six feet of dirt in the pond, at an estimated damage of $18,500.00. Due to the original depth of the pond and the gradual accumulation of silt, it was not discovered until late 1979 or early 1980.
Finally, plaintiff claims damages for two fences allegedly damaged by defendants. One was cut by a bulldozer and the other was buried under mud slides from the highway fill. Plaintiff had assumed the fences would be repaired when the highway construction was completed. When the construction was completed in 1980, the fences were not repaired or replaced.
Mrs. Olson originally filed suit against the defendants on October 29, 1980. Due to procedural difficulties the case was dismissed “for lack of proper prosecution” on December 3, 1981. It was refiled pursuant to K.S.A. 60-518 on December 16, 1981. All parties agree that the appropriate statute of limitations is two years as provided in K.S.A. 60-513(c)(4) and that October 29, 1980, is the controlling filing date. The trial court granted summary judgment to defendants on the grounds that permanent injury to plaintiff s basement, pond and fences first occurred in the spring or summer of 1978 and therefore all damages were precluded because this action was not filed until October 29, 1980, more than two years from the initial injury to the property.
The major issue in this case is whether, under these facts, it was proper for the trial court to grant summary judgment against plaintiff on the ground her claims were barred by the statute of limitations. Summary judgment is proper if no genuine issue of fact, remains, 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 do exist. When summary judgment is challenged on appeal, this court will read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶¶ 1, 2, and 4, 662 P.2d 1203 (1983). The record in this case consists of the depositions of Martha and Kenneth Olson, the deposition exhibits and the transcript of the proceedings from the first case and the pleadings, trial briefs and transcripts in the case being appealed.
We agree the applicable earliest date which would not be barred by the statute of limitations is October 28, 1978, and that the applicable period in this case is the two years defined by K.S.A. 60-513(c)(4). However, subsection (b) of that statute provides:
“[T]he cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
The application of this statute in the case of an isolated act of negligence concurrently injuring another person or his property is clear— the two-year period begins to run from the date the act occurred and the injury was sustained. The focus is not, how ever, on the faulty act or condition itself, but on its effect. When there is an isolated act resulting in immediate injury not readily apparent to the innocent party, or when the injury itself is delayed for a period of time, the law is well settled that the limitation period is triggered not on the date of the wrongful act, but when the consequent injury is substantial or reasonably ascertainable. 1 Card’s Kansas C. Civ. Proc. 2d Annot. § 60-513 (1979).
Perhaps the most difficult application of the limitation period is in a case such as the present, involving continuing wrongful acts or causative agents, working what is at first only slight injury, which increases in degree over time. Appellees contend .that the cause of the injury, the blasting and the design and construction of the dirt fill, are permanent in that the blasting has ceased and the dirt fill is not subject to removal or abatement. They also contend that the injuries suffered by Mrs. Olson are permanent in that the cracks in the basement will not disappear or be corrected by the mere passage of time and that the same is true of the silt in the pond and the damaged fences. They totally ignore the provisions of K.S.A. 60-513(b) and assert the first moment of injury, no matter how slight, triggers the statute of limitations. The trial court agreed.
Appellant, on the other hand, contends the initial hairline crack and the initial infiltration of silt, while certainly permanent in nature, did not fall within the realm of substantial injury and were not reasonably ascertainable until additional injury occurred subsequent to the magic date of October 29, 1978. The injury to the fences, while perhaps more readily ascertainable, is subject to dispute as to when the injury occurred and whether Mrs. Olson was justified in her assumption the fences would be repaired before the work crews finally left the project. While the distinction between temporary and permanent damages was recognized as a viable concept as recently as our decision in McAlister v. Atlantic Richfield Co., 233 Kan. 252, a careful review of our prior cases indicates that no hard and fast rule can be adopted as to when the damages are deemed permanent and when they are deemed temporary. In addition, some of our cases refer not only to the permanent or temporary nature of the damages but also the permanent or temporary nature of the causative factor. Each case must be considered in its own factual setting.
Many of our cases which have hinged on the dichotomy of permanent and temporary involve repeated flooding of crops and farmland. In Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338 (1976), cited with approval in McAlister, this court stated:
“Where the injury or wrong is classified by the courts not as original or permanent, but as temporary, transient, recurring, continuing or consequential in nature, it has been held that the limitation period starts to run only when the plaintiffs’ land or crops are actually harmed by overflow, and for purposes of the statute of limitations, each injury becomes permanent. [Citations omitted.] This rule is especially applicable if the situation involves other elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative condition, or uncertainty in regard to the future use or improvement of the land, so as to prevent a reasonably accurate estimate of future damages. [Citation omitted.]
“A number of our cases have permitted relief for damages caused by overflowing waters if brought within two years of the overflowing. [Citations omitted.]
“In the instant case the evidence does not show the cause of the injury to be permanent. In many cases injuries have been classified as temporary or recurring in nature when caused by an abatable nuisance or condition, or by defects which can be repaired or remedied at reasonable expense. Successive injuries of this nature have been held to give rise to separate and distinct causes of action. [Citation omitted.]
“It has frequently been said the principle upon which one is charged as a continuing wrongdoer is that he has a legal right, and is under a legal duty, to terminate the cause of the injury. [Citations omitted.]
“Under this rule the owner of land injured by overflows and poor drainage caused by an abatable condition or nuisance has the right to assume the condition or nuisance will be abated. Here the appellees presented evidence that the obstructions were not ‘permanent.’ That is to say, the obstructions could be removed from the drainage ditch. In a legal sense these obstructions were not ‘permanent’ because they were not approved by the state. Moreover, the appellees presented evidence that the appellants agreed to examine the drainage ditch and consider removing the obstructions. . . .
“Where permanent damages to the land are sought, and the evidence discloses permanent damages, the action claiming such damages must be brought within the two year statute of limitations. Thus in Thierer v. Board of County Commissioners, 212 Kan. 571, 512 P.2d 343, the cause of action for permanent damages to farmland was held to accrue when substantial injury was reasonably ascertainable.” pp. 144-46.
Regardless of the permanent or temporary nature of the injuries to the Olson land, the determinative question in this case is when the statute of limitations began to run. The trial court concluded that plaintiff s causes of action accrued when any injury first occurred, that being in the spring or summer of 1978. However, K.S.A. 60-513(b) provides that a cause of action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or until the time the fact of injury (inferentially, the fact of substantial injury) becomes reasonably ascertainable to the injured party. In his comments on this statute, Judge Gard said:
“While the cause of action accrues at the time of the actual injury, the two-year statute of limitations does not necessarily begin to run at that time. In various types of injury it often cannot be reasonably ascertained as existing until some time after the commission of the wrongful act which causes it. . . . Injury to land and livestock from stream pollution and injury from subsidence as the result of mining operations may furnish examples of the operation of the rule here laid •down. . . .
“[T]he action may be brought within two years from the time the actual injury is discovered but not later than ten years from the time injury actually occurs. In other cases the negligent act may lie dormant in its effect indefinitely until something happens to connect it with injury, and only then does the statute of limitations begin to run. There is no limitation period running from the time of the initial act of negligence unless the act of negligence and injury are simultaneous.” (Emphasis added.) 1 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-513, pp. 23-26 (1979).
We have acknowledged and applied the provisions of K.S.A. 60-513(b) in a number of cases. See Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971); Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974). We have also recognized that permanent damages to land may not arise instantly from a negligent act or, even if they do, the damages may not be readily apparent to the injured party. An action for permanent damages to real property shall not be deemed to accrue until “substantial injury is reasonably ascertainable.” Thierer v. Board of County Commissioners, 212 Kan. 571, Syl. ¶ 2, 512 P.2d 343 (1973).
We believe that the trial court’s conclusion plaintiff s causes of action accrued in early 1978 is belied by the record in this case. With regard to the blasting, it is not disputed defendants began their operations in spring, 1978, at which time plaintiffs son discovered one hairline crack in the new foundation to plaintiff s house. Certainly reasonable minds could differ over whether this one crack constituted substantial injury for the purposes .of K.S.A. 60-513(b). Defendant Tobin has implicitly recognized the minor nature of this initial injury by the following statement appearing in its brief:
“The continued blasting [after the spring of 1978] . . . only increased the amount of damages from being slight, to one being more substantial, but it did not affect the injury.” (Emphasis added.)
A jury might well conclude that the blasting in late 1978 or in 1979 within one hundred feet of the basement was the cause of the additional cracking and that it was not until then that substantial injury occurred or became reasonably ascertainable.
The same may be said for the silt, dirt and mud in the pond. Even the trial court in its findings was confused as to when the dirt fill was commenced and completed. The court found that defendants began construction of the dirt fill in June of 1978, and then concluded soil from the fill had been washing into plaintiffs pond since April, 1978, at which time the cause of action accrued. Deposition testimony indicates the dirt fill may not have been completed until the spring of 1979. Assuming dirt or silt first entered the pond in the summer of 1978, there is no showing of when substantial injury occurred or when it became reasonably ascertainable. Again Tobin recognized the problem when it stated in its brief:
“. . . the continued settling of mud from the fill only increased the amount of damages from being slight, to one being more substantial, but it did not affect the injury.” (Emphasis added.)
The time of substantial injury to the fences is also not clear. One was damaged by a mudslide from the dirt fill and the other cut by workmen. The petition alleges the fence was cut in April, 1980.
Our statutes of limitation were not designed to force injured parties into court at the first sign of injury, regardless of how slight it might be, just because that injury and damages resulting therefrom may be permanent in nature. We have repeatedly held that where the evidence is in dispute as to when the fact of injury first became reasonably ascertainable to plaintiffs, it is an issue for determination by the trier of fact. George v. W-G Fertilizer, Inc., 205 Kan. 360, 366, 469 P.2d 459 (1970). The same is true in determining when substantial injury first occurred. Thierer v. Board of County Commissioners, 212 Kan. 571. In Hecht v. First National Bank & Trust Co., we said:
“Summary judgment may be proper on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time when the statute commenced to run. [Citations omitted.] But where the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact.” 208 Kan. at 93.
It appears obvious that there remain major questions of fact which are in dispute. The defendants submitted their statement of uncontroverted facts which was accepted by the trial court as the basis for its ruling. The facts submitted, while admitted to be true by the plaintiff, included isolated statements taken out of context from the depositions. Plaintiff submitted additional allegedly uncontroverted facts which explained; modified or gave different meaning to those submitted by defendants. The court erred in considering only the isolated, abstract statements of the defendants and concluding from them that summary judgment should be entered.
The judgment granting summary judgment is reversed and the case remanded for further proceedings. | [
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The opinion of the court was delivered by
Holmes, J.:
Defendant L. R. Foy Construction Co., Inc. (Foy) appeals from a judgment granted plaintiff Jim Havens d/b/a Havens Construction Company (Havens) in a dispute between Foy, the general contractor, and Havens, a subcontractor, over performance of a construction contract. The trial court rendered judgment for Havens in the amount of $40,422.00 and Foy has appealed. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Foy was the general contractor for the construction of a new building for Safeway Stores, Inc. (Safeway) in Liberal, Kansas. Havens, a cement contractor, submitted a proposal to do the concrete work for $124,000.00 which was accepted by Foy and the two entered into a written contract in March, 1980. Under the contract plaintiff undertook to furnish all material, equipment and labor necessary for the complete cast-in-place concrete portion of the work to be performed in strict accordance with the plans and specifications prepared by Safeway and its architect. The instant case arose from a dispute over the method of payment and certain alleged breaches of the contract by Havens. Prior to the beginning of construction, Foy held a meeting with all the subcontractors at which representatives of Safeway outlined their method of payment. The subcontractors were to submit to Foy, as general contractor, an invoice by the 25th day of each month setting forth the amount claimed to be due for work performed. They were then to be paid for 90% of the amount claimed if it was found to be the correct amount based upon the percent of the work completed. Foy, after checking and verifying the percent of work completed and amount claimed, would then send all of the invoices to Safeway in Oklahoma City. If that office approved the invoices they were then returned to Foy, who would forward them to Safeway headquarters in Oakland, California. In due course the Oakland office would send one check for the approved amount to Foy who in turn paid the subcontractors. This rather lengthy procedure might take from four to six weeks depending upon how fast each party to the procedure processed the necessary paper work.
Havens commenced work on March 20, 1980, but did not submit an invoice for any of his work until April 23, 1980. As he had only worked a few days in March, he evidently chose to combine the March and April invoices in a total amount of $24,000.00. Foy combined this invoice with those from other subcontractors and sent them to the Oklahoma City division of Safeway. That office checked, verified, and approved the invoices for payment and mailed them back to Foy. Foy then forwarded these invoices to Safe way’s Oakland, California office for payment. A check was drawn by that office on May 23, sent to Foy, and Havens received payment on May 31. Thus there was a time interval of thirty-six days between April 25 and payment to Havens. This was the standard process for payment on the invoices, and was explained to the subcontractors at a meeting before they began work. There is a dispute about the date the May invoice was received by Foy but it was dated May 23 and processed through the Oklahoma City and Oakland offices of Safeway. The check from Safeway was drawn July 3, 1980, and mailed to Foy who in turn was to pay the subcontractors. Thirty-nine days elapsed between the May 25 invoicing date and the drawing of the check at Oakland. Foy received the check within a few days thereafter.
During this time, Havens experienced several difficulties with the construction project. He was unable to keep an adequate number of men on the job to ensure work progressed in a timely fashion, and Foy responded by furnishing Havens with additional help. Contrary to Article XIII of the contract, Havens employed other subcontractors on the job without Foy’s permission. Weather problems were encountered, but Havens submitted no requests for additional time for these delays as he was entitled to under the contract. Finally, the cement work Havens completed met neither the specifications for levelness nor strength.
On May 31, 1980, Foy served Havens with a 72-hour deficiency notice under Article V of the contract. Havens put more men on the job in an effort to catch up with the schedule, but to no avail. Claiming a lack of money to meet his payroll and pay for his supplies, Havens discontinued his work and walked off the job on July 3, 1980, and never returned. It then became necessary for Foy to find a new cement contractor to remedy the alleged deficiencies in Havens’ work and complete the concrete work.
Thereafter Havens filed suit against Foy and Safeway seeking recovery of $62,542.00 which he alleged was the balance due for the work he had completed. There were numerous procedural questions in the trial court involving the filing of a mechanic’s lien by Havens and the joining of certain bonding companies as parties defendant. However, the issues on appeal are solely between Havens and Foy and we will make no further reference to the other parties. Prior to answering, Foy filed a motion seeking to have the dispute arbitrated, which it alleged was required by the contract. When this motion was denied Foy filed an answer and a counterclaim for actual and punitive damages for alleged breach of the contract by Havens and alleged willful and malicious conduct of Havens. Following a trial to the court judgment was rendered in favor of Havens for $40,422.00. The trial court found that Foy had breached the contract with Havens by failing to make timely payments in accordance with the prevailing industry practice which the court found called for payment every thirty days. Foy has appealed.
In the first issue on appeal Foy claims the trial court erred in failing to order arbitration pursuant to the contract and the Uniform Arbitration Act. In support of this contention, Foy points to Article II of the contract:
“All disputes, claims or questions subject to arbitration under this contract shall be submitted to arbitration in accordance with the provisions as contained in the standard form of the American Institute of Architects general conditions of the contract for the construction of buildings.” (Emphasis added.)
and to K.S.A. 5-401:
“Validity of arbitration agreement. 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 an employer 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.”
Foy’s position is that arbitration applies to all controversies arising under its contract with Havens. Havens, however, points out the clear language of the contract does not require arbitration for every dispute or claim, but only those expressly “subject to arbitration under this contract.” Reference to other provisions of the contract shows the parties agreed to arbitrate particular issues that might arise, such as variations in pay required by alteration of work, but they nowhere agreed to arbitrate disputes such as that before the court. The trial court ruled:
“I find no agreement to arbitrate exists between the parties hereto. The plaintiff s contract provides for limited arbitration with the contractor defendant in cases of change orders, and there is no written agreement between plaintiff and the owner defendant. Therefore the motion to refer to arbitration is denied.”
The contract here did not track the language of K.S.A. 5-401 insofar as requiring arbitration of any controversy, and the trial court properly found that plaintiff s claim did not fall within that narrow class of disputes made subject to arbitration by the contract.
The next issue is that the court committed error in finding that Foy had breached the contract by failing to pay Havens according to prevailing industry practice. The court stated:
“I have decided . . . that the plaintiff was justified in terminating his contract with the defendant Foy Construction Company for failure of timely payment. I find the prevailing industry practice to be payment every thirty days based upon ninety percent of the work completed during the billing period.”
Appellant Foy contends that it was error for the trial court to rely on custom and practice in the industry when the contract between Foy and Havens specifically provided otherwise. The provision of that contract dealing with payment reads:
“ART. VIII. It is mutually agreed between the parties hereto that the sum to be paid by the General Contractor to the Sub-Contractor for said work and materials shall be TOTAL CONTRACT AMOUNT, INCLUDING ALL APPLICABLE TAXES AND A PERFORMANCE & PAYMENT BOND, SHALL BE FOR THE SUM OF: ONE HUNDRED TWENTY FOUR THOUSAND DOLLARS, ($124,000.00) ....
ALL INVOICES SHALL BE IN THIS OFFICE BY NO LATER THAN THE 25TH OF EACH MONTH.
ANY INVOICE RECEIVED AFTER THE 25TH WILL BE SENT INTO SAFEWAY ON THE FOLLOWING MONTHS ESTIMATE
subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the General Contractor to the Sub-Contractor. The Contractor agrees to pay Sub-Contractor such sums based on Sub-Contractor’s estimates for partial payments as are approved by the Architect, less retainages in the amounts specified in the specifications, or if none be so specified, then in the amount of 10%. Provided, however, contractor shall be under no obligation to pay subcontractor for any work done hereunder until Contractor has been paid therefor by Owner, and the acceptance of any such work and payment therefor shall not relieve Sub-Contractor from liability for defects in such work which may thereafter be discovered.” (Emphasis added.)
While there was sufficient evidence presented to establish the prevailing industry practice as it pertains to partial payments, the question is whether the court was justified in relying on custom and usage in the industry when the contract provided that Foy would be under no obligation to pay Havens until Foy was paid by Safeway.
We have previously held that:
“Custom and usage may be shown to elucidate or explain something ambiguous in a contract, but where the contract is clear and complete it cannot be changed or supplemented by evidence of a local custom . . . .” Stanly v. Buser, 105 Kan. 510, Syl. ¶ 2, 185 Pac. 39 (1919).
Havens contends that the language “all invoices shall be in this office by no later than the 25th of each month. Any invoice received after the 25th will be sent into Safeway on the following months estimate” implies that monthly payments are to be made by Foy or, at the very least, creates such an ambiguity that the trial court was justified in relying on custom and usage or prevailing industry practice. We do not agree. The critical provision of the contract reads:
“Provided, however, contractor shall be under no obligation to pay sub-contractor for any work done hereunder until Contractor has been paid by Owner
We find nothing ambiguous about this provision and, being clear and complete, it cannot be changed or supplemented by evidence of prevailing industry practice.
It is not within the province of a court to reform an instrument by rejecting words of clear and definite meaning and substituting others. Campbell v. Fowler, 214 Kan. 491, 520 P.2d 1285 (1974). When a written instrument is complete, the court will not imply an additional term. Burge v. Frey, 545 F. Supp. 1160 (D. Kan. 1982). Language in a contract is ambiguous only when the words used to express the meaning and intention of the parties are insufficient in that the contract may be understood to reach two or more possible meanings. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 602 P.2d 1299 (1979).
Assuming arguendo that monthly payments should have been made, we cannot say that the minor delays encountered here would constitute such a breach that would justify Havens in abandoning the contract. The April invoices were paid May 31, only six days beyond a monthly payment date of May 25 if we assume prevailing industry practice controls and the check for the May invoices was drawn July 3, only eight days after the June 25 payment date. By that time Havens had already walked off the job. We conclude the court erred in disregarding the clear contractual language and in resorting to prevailing industry practice to find a breach of the contract by Foy. The payments by Foy were timely under the contract.
In view of the foregoing, it is not necessary that we consider the other points raised on appeal.
The judgment is reversed and the case remanded for a new trial.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is a workers’ compensation appeal. The parties are Tracy Followill, the claimant and appellee, and Emerson Electric Company, the self-insured employer, the respondent and appellant. The administrative law judge denied compensation; the director approved the denial; the district court awarded compensation; and here, the employer seeks a reversal of the district court judgment.
The sole issue is whether a psychiatric disability sustained by an employee by accident, and arising out of and in the course of employment, is compensable absent physical injury.
The facts are not disputed. Tracy Followill was employed by Emerson Electric at its plant in Independence, Kansas, as a maintenance man. His duties included greasing machinery used to make parts for ceiling fans. He was at work on August 21, 1981, when a friend and co-worker was killed. The man’s head was crushed in a die cast press. Followill did not see him get crushed, but arrived at the machine moments later. The scene was grisly. Followill sustained no physical injury.
Almost immediately, Followill started shaking and crying. He became dazed and disoriented. He was taken home, and was unable to return to work. During the weeks that followed the accident, claimant suffered nightmares in which he relived the incident. He often awoke screaming. He developed insomnia and lost his appetite. He experienced flashbacks. He was hospi talized for about a week and received medication and psychotherapy, but after his discharge from the hospital, his situation worsened. His personality changed and he had difficulty getting along with his wife. The nightmares and flashbacks continued. Eventually he was admitted to the psychiatric ward of Mt. Carmel Medical Center at Pittsburg, Kansas, where he stayed for about seven weeks. An electroencephalogram taken upon his admission showed abnormal brain functions. After treatment, he improved and an EEG taken one month later was normal.
Claimant returned to work on November 9, 1981, but was unable to perform all of his duties because of his fear of machinery. Dr. Targownik, an eminent Topeka psychiatrist, expressed the opinion that claimant could be in some danger on the job because of the paralyzing effect of flashbacks. He found that claimant had been 100% disabled for a time and that he suffered a permanent fifty to sixty percent disability. Dr. Targownik and two other psychiatrists diagnosed claimant’s affliction as “post-traumatic stress disorder” as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) (3rd ed. 1980). Claimant did not have a prior psychiatric history.
The administrative law judge, finding that claimant sustained no physical injury, denied compensation. The director approved the award of the administrative law judge. The district judge found that claimant was totally disabled from August 21, 1981, until November 9, 1981, and that claimant sustained a 50% permanent partial general disability. The total award was $32,278.44.
At issue is the scope of the Workmen’s Compensation Act. We must decide whether a disability caused by post-traumatic stress disorder resulting from an on-the-job accident in which the claimant suffers no physical injury is compensable. We first turn to the applicable statutes. K.S.A. 44-501 provides in part:
“If in any employment to which the workmen’s compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, his or her employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen’s compensation act.”
“Accident” and “personal injury” are defined in K.S.A. 44-508(d) and (e). We note that this statute has been amended by Laws of Kansas 1983, ch. 167, § 1, but the wording of subsections (d) and (e) remains unchanged. They read:
“(d) ‘Accident’ means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workmen’s compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.
“(e) ‘Personal injury’ and ‘injury’ mean any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence.”
These definitions have remained virtually unchanged since their adoption in 1974. See Laws of Kansas 1974, ch. 203, § 7.
Our earlier cases are helpful but do not decide the precise question which we now face. In Jacobs v. Goodyear Tire & Rubber Co., 196 Kan. 613, 412 P.2d 986 (1966), a claimant sought compensation for emotional disorders resulting from on-the-job stress which built up over a period of months. The trial court held that the claimant did not sustain personal injury by accident arising out of and in the course of his employment, within the meaning of the act. We concluded that the trial court’s finding was supported by substantial competent evidence and we affirmed. In the course of the opinion we said:
“Claimant contends that inasmuch as this court has liberally construed personal injury by accident to include situations in which a series of physical events results in injury (e.g., Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418; Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P.2d 171) or death (e.g., Pence v. Centex Construction Co., 189 Kan. 718, 371 P.2d 100), under our decisions dealing with traumatic neurosis a mental breakdown resulting from the stress of ordinary labor should also be compensable. Claimant cites many cases covering the series-of-impact and coronary categories in support of his contention, but in all of them the disability or death resulted from events physical in nature (physical stimuli) as distinguished from solely mental stimuli, as in the case at bar. Admittedly, we have held on numerous occasions that traumatic neurosis following physical injury, and shown to be directly traceable to such injury, is compensable under the act. (Elliott v. Ralph Construction Co., [195 Kan. 723, 408 P.2d 584 (1965)]; Hayes v. Garvey Drilling Co., 188 Kan. 179, 360 P.2d 889; Barr v. Builders, Inc., [179 Kan. 617, 296 P.2d 1106 (1956)]; Morris v. Garden City Co., 144 Kan. 790, 62 P.2d 920.) This rule, however, has no application to the instant case since the district court found that although claimant’s difficulty was the result of a mental illness, he had suffered no physical injury.
“Respondent points out, and we agree, that even if claimant’s mental condition be termed a disease under the broadest of interpretations, under our law (K.S.A. 44-5a02) [relating to occupational diseases, since repealed], such disease is not enumerated and would not constitute ‘injury by dccident.’ (See Watson v. International Milling Co., 190 Kan. 98, 372 P.2d 287.)” 196 Kan. at 615-616.
The present case is somewhat distinguishable from Jacobs in that Followill’s mental injury or condition was caused by one on-the-job traumatic incident rather than a series of events over a period of time, and further, the evidence shows that claimant’s condition arose out of his employment.
Seven years after Jacobs was decided, the opinion in Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. 541, 506 P.2d 1175 (1973), was handed down. That case involved a claim for traumatic neurosis which resulted when claimant was struck in the right eye by the end of a piece of lumber and as a result lost the useful vision of one eye. The narrow issúe before the court was whether the fact that the eye injury was a “scheduled injury” that precipitated the psychological problems should limit the recovery to the amount fixed for the scheduled injury. We concluded that recovery was not so limited. The case is not particularly helpful here since Berger sustained physical injury out of which the neurosis arose.
Next came Rund v. Cessna Aircraft Co., 213 Kan. 812, 829, 518 P.2d 518 (1974). We concluded that compensation had to be denied because “there is no evidence presented by the record and no finding by the trial court that the claimant’s ‘emotional problems’ were caused by the accident concerning which she complains.” Claimant had slipped on some solvent or degreaser causing her left foot to go out from under her, which resulted in severe pain in her left knee. We reviewed the evidence of the claimant’s mental condition and held that there was insufficient evidence to show that the emotional problems were directly traceable to the accident. Referring to Berger, we said:
“Berger stands for the proposition that traumatic neurosis following physical injury, and shown to be directly traceable to such injury, is compensable under the Workmen’s Compensation Act.” (Emphasis in original.) 213 Kan. at 827.
We also discussed Jacobs, saying:
“The significance of Jacobs is that if claimant’s psychiatric problems do not result from the nature and requirements of the claimant’s job, or are the result of external forces over which the employer has no control, then there is no causal connection between the claimant’s mental disability and the work being performed.” 213 Kan. at 828.
Similarly, in Buck v. Beech Aircraft Corporation, 215 Kan. 157, 523 P.2d 697 (1974), we held that disabling traumatic neurosis which was not shown to be caused by on-the-job physical injury was not compensable. In Syl. ¶¶ 4 and 5, we said:
“Traumatic neurosis following physical injury is compensable under the Workmen’s Compensation Act only if it is shown the neurosis is directly traceable to the physical injury and the psychiatric problem which causes the disability of the workmen has a direct causal connection with the work performed or the physical injury.” Syl. ¶ 4.
“In a workmen’s compensation case if the claimant’s psychiatric problems do not result from the nature and requirements of the claimant’s work, or are the result of external forces over which the employer has no control, there is no causal connection between the claimant’s mental disability and the work being performed, and compensation cannot be awarded for the mental disability. (Following Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P.2d 518.)” Syl. ¶ 5.
All of our cases in which compensation has been awarded for traumatic neurosis involve instances in which the mental disease, disorder or difficulty stems from an initial physical injury. We find none of our earlier cases, and counsel have cited none, in which mental disorders have been held compensable under our Workmen’s Compensation Act absent physical injury. K.S.A. 44-508(e) defines personal injury in terms of change in the physical structure of the body. Though our Workmen’s Compensation Act has undergone significant change in recent years, the legislature has retained the definitions of “personal injury” and “injury” without modification. It has not expanded the obligation of employers to pay compensation for purely mental as opposed to physical injuries.
We are fully aware that the majority of states presently allow workers’ compensation for mental injury resulting solely from mental stimuli. See IB Larson, Workmen’s Compensation Law, ch. 7 § 42.23 (1982); 1 Larson, Workmen’s Compensation Desk Book § 42.20 (1983); Annot., 97 A.L.R.3d 161; 82 Am. Jur. 2d, Workmen’s Compensation § 302; 99 C.J.S., Workmen’s Compensation § 168b; and Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955).
Furthermore, the evidence indicates that the injury sustained by Followill was real. It was as disabling as many physical injuries. It occurred by accident. It arose out of and in the course of his employment with respondent. But under our construction of the Kansas Workmen’s Compensation Act, it was not a compensable “personal injury.”
We hold, in accordance with an unbroken line of worker’s compensation cases in this state, that the obligation of an employer under K.S.A. 44-501 et seq. does not extend to mental disorders or injuries unless the mental problems stem from an actual physical injury to the claimant. To extend the obligation to include mental disorders, absent physical injury, is a matter for consideration by the legislature.
We therefore hold that claimant’s post-traumatic stress disorder was not compensable under the Kansas Workmen’s Compensation Act, under the facts of this case, there being no physical injury.
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The opinion of the court was delivered by
Miller, J.:
This is a criminal case in which the defendant, Sinclair Royal, Jr., appeals from his conviction by a jury in Sedgwick District Court of the crimes of aggravated burglary, K.S.A. 21-3716, aggravated battery, K.S.A. 21-3414, and aggravated kidnapping, K.S.A. 21-3421. The issues raised relate to the late endorsement of a prosecution witness, a denial of defendant’s motion for discharge on the aggravated kidnapping charge, the failure of the trial court to give certain requested instructions, and whether the evidence was sufficient to sustain the convictions.
Sometime around 12:30 o’clock a.m., on July 3, 1982, Mrs. Sherry Hartung arrived home at her apartment complex on North Rock Road in east Wichita. As she parked, she noticed an unoccupied silver Camaro parked in the space next to hers. She had not seen it before. When she entered her apartment, she was immediately knocked down some stairs. The stairwell light was on, and she saw a black man standing over her with a knife. She fought her attacker and suffered a cut on her hand, as well as some scratches and braises. Fortunately, her attacker quickly gave up and ran away. On July 6, 1982, Mrs. Hartung picked the defendant from a lineup, and at trial she positively identified him as her attacker. The Hartung case resulted in the aggravated burglary and the aggravated battery convictions.
Later, about 1:00 o’clock a.m., on July 3, Kathy Harper was in the parking lot of her apartment complex, also on North Rock Road. She was preparing the car for a trip which she planned to take on the following day. A silver Camaro pulled into the lot, and Ms. Harper saw a black man get out of the car. He approached her, asked her about some people he thought lived in her building, and asked if he could use her phone. Suddenly, she found herself grabbed around the neck, with a knife held to hex-throat. She screamed. The man told her to shut up or he would kill her. He dragged her toward the Camaro. Ms. Harper fell down and was knocked out briefly. Her glasses were broken. As the man pushed her into the Camaro from the driver’s side, she regained consciousness. She resisted, he gave up, and she broke away. She was able to get the first three letters from the Camaro license tag, which she noted was an out-of-state license. Ms. Harper suffered a small knife gouge to her collarbone and a small cut on her hand, both from the knife the assailant was carrying. In addition, she was knocked out and she had a badly bruised and scraped knee.
On July 6, 1982, Ms. Harper viewed the same lineup Mrs. Hartung had seen, but she did not pick the defendant; instead, she picked one James Campbell. At trial, she said in substance that she believed that the defendant was the man who attacked her. The Harper case resulted in the aggravated kidnapping conviction.
Sinclair Royal was arrested at 1:26 o’clock a.m., on July 3, on the Kansas Turnpike south of Wichita. He was driving a silver Camaro; the first three letters of the out-of-state license tag were those noted by Ms. Harper.
At trial, the defendant relied upon a defense of alibi. He testified in substance that he met a friend, Wardell Ligón, at a Denny’s Restaurant in east Wichita around 12:30 o’clock a.m.; that Ligón borrowed defendant’s Camaro and was gone for twenty to twenty-five minutes; and.that Ligón returned the ear immediately before Royal started on his way to Oklahoma. Mr. Ligón, called by the State in rebuttal, completely contradicted the defendant’s alibi. He denied being in Denny’s with defendant, and denied borrowing the car. Also, on rebuttal, the State called Mrs. Hartung, who testified positively that Wardell Ligón (who was still in the courtroom) was not the person who attacked her.
We turn now to the first issue, the late endorsement of a witness for the State. Mrs. Hartung testified that the stairwell light was on during the attack; one of the investigating police officers indicated that the light was not tinned on. The State then sought to endorse Mark Hartung, husband of the victim. Over defendant’s objection, the trial court permitted the endorsement, and the State called Mr. Hartung as a witness. He testified that he specifically recalled turning on the stairwell light, in keeping with his usual practice, before he went out that night. He had left the apartment sometime before the occurrence.
The late endorsement of witnesses is discretionary with the trial court. In State v. Ferguson, Washington & Tucker, 228 Kan. 522, 526, 618 P.2d 1186 (1980), Justice Fromme explained:
“This statute makes late endorsement of witnesses discretionary with the trial court. It may in the interest of truth and justice permit late endorsement of the names of witnesses provided the opposing party or parties are given time to interview said witnesses and provide for cross-checking their testimony. State v. Costa, 228 Kan. 308, Syl. ¶¶ 4, 5, 613 P.2d 1359 (1980). The test to be used in determining whether permission should be granted is whether the defendant’s rights will be prejudiced. State v. Rueckert, 221 Kan. 727, 730, 561 P.2d 850 (1977).”
The purpose of the endorsement requirement included within K.S.A. 22-3201(6) is to prevent surprise to the defendant, and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial, should he desire to do so. State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980). Here, Mrs. Hartung testified, both at the preliminary examination and upon trial, that the stairwell light was on at the time of the attack. Defense counsel was allowed to interview Mr. Hartung before he testified. There was no surprise; the testimony of the witness did not change the State’s theory of the case; and the rights of the defendant were not prejudiced. We find no error.
We now turn to the defendant’s claimed instructional errors. He was charged with and convicted of the aggravated kidnapping of Kathy Harper. He contends that the trial court erred in failing to instruct on kidnapping as a lesser included offense, as requested by the defendant. Kidnapping becomes aggravated only when bodily harm is inflicted on the person kidnapped. K.S.A. 21-3421.
K.S.A. 21-3107(3), since amended, imposes a duty upon the trial court to instruct the jury as to all lesser crimes of which the accused might be found guilty under the charges contained in the information and upon the evidence adduced. This duty, we have frequently noted, arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. See State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 (1982), and cases there cited. Further, when considering the refusal of a trial court to give instructions requested by the defendant, an appellate court must consider the evidence supporting those instructions in the light most favorable to the defendant. State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983); State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973).
The defendant testified but offered evidence only of an alibi; thus, we have no defense version of the offense but only that offered by the State. The State offered evidence that Ms. Harper sustained injuries. Reduced to one basic issue, the question is whether her injuries constituted “bodily harm” as a matter of law. We discussed bodily harm in State v. Taylor, 217 Kan. 706, 713-15, 538 P.2d 1375 (1975), and we later quoted that discussion at length with approval in State v. Sanders, 225 Kan. 156, 158-59, 587 P.2d 906 (1978). Bodily harm has been defined as any touching of the victim against the victim’s will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper. State v. Taylor, 217 Kan. at 714. This definition was developed from a California case and, as we noted in Taylor, the California court has significantly narrowed the definition of “bodily harm” and now recognizes that some “trivial” injuries, likely to result from any forcible kidnapping by the very nature of the act, do not constitute “bodily harm” as that term is used in the aggravated kidnapping statute. Only unnecessary acts of violence upon the victim and those occurring after the initial abduction constitute “bodily harm.” See Taylor at page 714 and People v. Schoenfeld, 111 Cal. App. 3d 671, 168 Cal. Rptr. 762 (1980). In the latter case, the California court held as a matter of law that minor cuts sustained by one of the victims during a successful escape effort, a scraped knee of one of the victims sustained while climbing down a ladder, and nosebleeds, fainting and stomach distress sustained by other victims did not constitute bodily harm.
In the case before us, however, we consider it significant that the gouge to the victim’s collarbone and the cut to her hand were inflicted by the knife used by the defendant in perpetrating the offense. While these wounds were not life-threatening, we do not regal'd them as “trivial” or as likely to result from any forcible kidnapping. Where a knife or firearm is used in the perpetration of a kidnapping, and the victim is wounded by that instrument while the kidnapper is using it to accomplish the crime by force, we hold that the resulting injury constitutes bodily harm as a matter of law. None of the “injuries” sustained in Schoenfeld were inflicted by knife, gun or other weapon, and that case is thus distinguishable. We conclude that bodily harm was inflicted upon the person of Ms. Harper and that the trial court did not err in refusing to instruct on kidnapping. Under the evidence, defendant was either guilty of aggravated kidnapping or not guilty.
Defendant contends that the trial court erred in failing to define “bodily harm.” The term is readily understandable and no instructional definition is ordinarily necessary. State v. Sanders, 223 Kan. 550, 575 P.2d 533 (1978). Furthermore, we have determined that “bodily harm” was present in this case as a matter of law. There was no dispute but that the victim sustained the injuries noted above, and that the cuts were inflicted by the knife wielded by the assailant. Of course, if there is a fact issue as to whether bodily harm is sustained by a victim, the matter may be submitted to the jury under proper instructions. See “Notes on Use,” PIK Crim. 2d 56.25.
Defendant contends that the trial court erred in failing to instruct on attempted kidnapping or attempted aggravated kidnapping. “Attempt” is defined by K.S.A. 21-3301(1) as follows:
“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
In State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), we said:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
Further, we gave examples indicating that the removal of a rape victim from a public place to a place of seclusion is sufficient to constitute kidnapping.
Here, the taking or confinement is alleged to have been done to facilitate the commission of the crime of aggravated battery or rape. Ms. Harper was dragged a distance of some forty feet from her car across the parking lot to the defendant’s vehicle. She explained that she fell down and evidently was knocked out; when she regained consciousness, the door on the driver’s side of the defendant’s car had been opened, and “he had me past the open door and was pushing me into the car, into the driver’s side of the car.” The defendant had the victim entirely under his control. He removed her from a well-lighted public place into the interior of his vehicle. That she kept fighting and screaming, and eventually was able to break away, does not lessen the offense.
In State v. Mahlandt, 231 Kan. 665, 671, 647 P.2d 1307 (1982), the facts were somewhat similar. The victim was taken from a store to a waiting automobile. In discussing the trial court’s refusal to give an instruction on an attempted kidnapping, Chief Justice Sehroeder, writing the unanimous opinion for this court, said:
“Here the evidence was sufficient to establish an actual taking of the victim. Either the defendant was guilty of kidnapping under the statute or he was not guilty, depending on the jury’s belief of the evidence. There was no evidence of an attempt to kidnap.
“The uncontroverted evidence here shows that the victim was forced from the store despite her attempt to fight and get away, and was physically placed by the defendant in his car. It was only after the defendant went around to the other side of his car to get in, and started up the car to drive away that the victim was able to escape. Once the defendant secured the victim in his car it is clear that she was under his control and a taking had occurred.
“On the evidence in this case the trial court properly refused to give an instruction on attempted kidnapping and all other lesser offenses requested by the defendant.” 231 Kan. at 671.
The evidence in this case upon which we must determine whether there was an attempt or a completed crime was that of the victim alone. Defendant’s alibi testimony does not bear on the necessity for the giving of a lesser included offense instruction. See State v. Hutton, 232 Kan. 545, 554-55, 657 P.2d 567 (1983). Upon the evidence before us, we conclude that the offense was completed when the victim was forced into the defendant’s automobile; therefore, the trial court did not err in refusing to give an attempt instruction.
Finally, defendant complains that the trial court erred in failing to give his requested instruction defining the term “facilitate.” We note that the trial judge gave the jury a definition of the term, based upon language used in our opinion in State v. Buggs. Error cannot be predicated upon the refusal to give a specific instruction where the instructions given include the substance of those refused. State v. Harwick, 220 Kan. 572, 577, 552 P.2d 987 (1976).
Defendant next argues that the evidence was not sufficient to sustain his conviction of the offenses charged. The first part of his argument on this point is his contention that the State failed to establish “bodily harm.” What we have previously said in this opinion disposes of that contention. He also claims that the record contains no evidence of attempt to rape or to commit aggravated battery, the crimes the kidnapping was alleged to have been intended to facilitate. The evidence tending to establish the intent to rape or batter the victim was simply that she was being dragged, at knifepoint and against her will, into the car of a stranger in the middle of the night. The jury was left to determine the defendant’s intentions, using common sense. “Intent is a state of mind existing at the time a person commits an offense and it may be shown by acts, circumstances and inferences deducible therefrom.” State v. Evans, 219 Kan. 515, 519-20, 548 P.2d 772 (1976); State v. Mans, 213 Kan. 36, Syl. ¶ 2, 515 P.2d 810 (1973). The jury reasonably could have inferred that the defendant’s intent was to rape or otherwise molest the victim; that is obviously the most plausible explanation for his behavior.
As to the Harper case, the defendant, his car, and three letters of his out-of-state license tag were described by the victim. Ms. Harper described an attack similar to the Hartung attack, perpetrated by a similar assailant, who asked questions similar to those asked of Mrs. Hartung. The attacks occurred nearby on the same night within a few minutes of each other. While Ms. Harper did pick the wrong man from the lineup, she stated in court that she believed Royal was the man. She was dragged across the parking lot, stuffed into a car, and she sustained knife wounds.
As to the aggravated burglary and aggravated battery of Mrs. Hartung, the defendant’s car was identified and the defendant himself was positively identified by the victim at a lineup and in court. Mrs. Hartung had been attacked in a lighted area in her apartment; she was injured by a deadly weapon used in the attack.
Where a defendant contends that the evidence is insufficient to sustain the conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979). Applying this standard, we hold that the evidence was sufficient to sustain the convictions.
Finally, defendant contends that the trial court erred in denying his motion for discharge on the charge of aggravated kidnapping made at the close of the prosecution’s case and again at the close of all of the evidence.
In State v. Mack, 228 Kan. 83, 89, 612 P.2d 158 (1980), we said:
“A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the. right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt.”
Defendant’s argument on this issue is simply a reargument of matters already discussed. What we have already said is determinative of this issue. The trial court did not err in denying the motion for discharge. The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Howard White (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427). The appellant contends he was not timely brought to trial according to the provisions of the Agreement on Detainers, K.S.A. 22-4401 et seq., and the trial court erred in admitting hearsay evidence.
The following evidence was presented at trial. Around 9:30 a.m. on March 9, 1981, the Kansas City Police Department received a call about a small boy left unattended in a black and gold Cadillac with Colorado license tags. The caller had observed a man park the car and leave with another man in a black and gold Buick with Missouri license tags, leaving the child unattended. Upon their arrival police officers found six-year-old Joseph Jackson and his one-year-old brother in the Cadillac. Joseph told the officers a man named Wallace had brought them there and had left in another car driven by his father, Howard White. The children were taken to police headquarters.
Police conducted a stake-out of the Cadillac, thinking it might be a possible getaway car. Shortly thereafter a black man ran to the car and got in it. When police officers approached the car and identified themselves, the man drove off. While in pursuit, the officers received word of a holdup at a nearby bank by two black males driving a Buick with Missouri license tags. They spotted a Buick matching the description of that suspect car parked a short distance from where the Cadillac had been parked.
Several officers converged on the area where the Buick was parked and began to search for the other suspect. Police saw a man on foot matching the description of the suspect. He fled when the officers approached him. As the search continued a woman came out of her home and told police a man was in her house and had requested a shirt and razor. The suspect was arrested. Meanwhile, the driver of the Cadillac was apprehended and was identified as one of the robbers. The appellant was identified at trial as the other perpetrator of the robbery.
The appellant first contends he was not brought to trial within the time limit set forth in the Agreement on Detainers, K.S.A. 22-4401 et seq.
Following his arrest the appellant was freed on bond. He was subsequently arrested in Colorado for armed robbery. He entered a guilty plea and was incarcerated at a correctional facility in Colorado. The appellant was notified the State of Kansas had filed a detainer against him. He requested a final disposition of the detainer, which was mailed by the Superintendent of the Colorado State Penitentiary on October 1, 1981, and received by the Clerk of the District Court of Wyandotte County on October 5, 1981. The appellant was tried on April 5, 1982, 182 days after the request was received by the clerk of the district court. The 180th day fell on Saturday, April 3, 1982.
The interstate Agreement on Detainers provides two methods for the disposition of charges pending against a prisoner incarcerated in another state or federal institution. See generally Annot., 98 A.L.R.3d 160, § 2. Article III of the Agreement prescribes the procedures for a prisoner to follow in requesting disposition of charges for which a detainer has been filed against him. This Article provides in pertinent part:
“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” (Emphasis added.) K.S.A. 22-4401.
Article IV(a) of the Agreement permits prosecuting authorities in the state in which charges are pending against a prisoner to obtain his custody for trial from the state where he is incarcerated. Where custody of a prisoner is requested by the prosecuting state the trial “shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state,” (emphasis added) except for necessary or reasonable continuances granted by the trial court for good cause shown. K.S.A. 22-4401, Article IV(c).
The appellant first contends the 120-day time limit contained in Article IV should apply to all cases handled under K.S.A. 22-4401 et seq. The time limits applicable under the two procedures contained in the Agreement were previously addressed by this court in State v. Clark, 222 Kan. 65, 67, 563 P.2d 1028 (1977):
“Under the Agreement, once a detainer has been lodged the authorities having custody of the prisoner ‘shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition’ thereof. (K.S.A. 22-4401, Art. III[c].) If the prisoner properly enters a request, he must be returned to the jurisdiction in which the detainer was filed and tried within 180 days of the time he requests disposition. If the prisoner makes no request for disposition, he must be tried within 120 days from the time he is returned to the requesting state. Failure to try the prisoner within the applicable time requires dismissal of the charges upon which the detainer is based.”
Other authorities have similarly recognized the 120-day time limit contained in Article IV is controlling only where the prisoner is returned for trial pursuant to the request of prosecuting authorities in the state where the charges are pending. See Shewan v. State, 396 So. 2d 1133 (Fla. Dist. App. 1981); State v. Plant, 532 S.W.2d 900, 902 (Mo. App. 1976); Annot., 98 A.L.R.3d 160, § 28[a], and cases cited therein.
The provisions of the statute are clear and straightforward. Where the prisoner requests a disposition of the detainer filed against him under Article III he must be brought to trial within 180 days “after he shall have caused to be delivered to the prosecuting officer and the appropriate court” written notice of his request. The 120-day provision in Article IV controls where the prisoner is returned for prosecution upon the request of the state which filed the detainer. No language is contained in the statute to support the interpretation suggested by the appellant. Furthermore, such an interpretation would render the 180-day time limit contained in Article III meaningless.
The appellant next contends the 180-day time limit contained in Article III begins to run on the date the prisoner’s notice and request for disposition is mailed rather than the date it is received by prosecuting authorities in the state where charges are pending. In support of this the appellant compares the language contained in the Agreement with a similar time limitation found in the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. The Agreement on Detainers requires the prisoner be brought to trial within 180 days “after he shall have caused to be delivered to the prosecuting officer and the appropriate court” written notice of his request for final disposition, whereas the Mandatory Disposition of Detainers Act states that the prisoner shall be brought to trial within 180 days “after the receipt of the request and certificate by the court and county attorney.” K.S.A. 22-4303. The appellant contends he was entitled to have the charge against him dismissed because he was not brought to trial until 187 days after he caused his request to be mailed to Wyandotte County.
This court has previously recognized that while the purposes of the Act and Agreement are analagous they are not alike or identical in all respects. See State v. Clark, 222 Kan. at 68. In State v. Dolack, 216 Kan. 622, 633, 533 P.2d 1282 (1975), we held that in ruling the State had not failed to bring the defendant to trial within 180 days the fact the district court had referred to the Mandatory Disposition of Detainers Act rather than the Agreement on Detainers was immaterial, since the rights of inmates confined in this state or in another state to a speedy trial were governed solely by the detainer statutes. We held:
“To obtain a speedy trial guaranteed by Section 10 of our Bill of Rights, as legislatively defined by either of the two Acts just referred to, it is incumbent upon an accused incarcerated in a penal institution to comply with all the provisions of the Act applicable to his incarceration, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it.” 216 Kan. at 634.
We cannot say the different language used in the two acts with respect to the time limit within which the prisoner must be brought to trial is indicative of the legislative intent that separate meanings are to be accorded the similar provisions.
Most courts which have addressed the issue presented here have recognized the 180-day speedy trial period begins to run only upon receipt by the proper authorities of the prisoner’s notice and request. See, e.g., People v. Bielecki, 41 Colo. App. 256, 258, 588 P.2d 377 (1978); State v. Arwood, 46 Or. App. 653, 655-56, 612 P.2d 763 (1980); State v. Plant, 532 S.W.2d at 902; State v. Ternaku, 156 N.J. Super. 30, 34, 383 A.2d 437 (1978); Annot., 98 A.L.R.3d 160, 208, § 15(a), and cases cited therein. In deciding the 180-day period commenced on the date the notice and request is received by the prosecutor and appropriate court, the court in State v. Ternaku, 156 N.J. Super. at 34, stated:
“The language of the statute is explicit. It provides for the commencement of the 180-day period when defendant has ‘caused to be delivered to the prosecuting officer and the appropriate court’, the written notice and request for final disposition of the pending indictment. The Legislature clearly intended that the documents be delivered to the prosecutor and the appropriate court before the 180-day period starts to run. The period does not start to run upon mere execution and delivery of the notice and request to the warden, commissioner of corrections or other official having custody of defendant. In our view it would be contrary to the public interest to start the running of the 180-day period prior to actual receipt of the notice and request by the prosecutor and the court. If we were to interpret the statute as defendant requests, an indictment would be subject to dismissal each time delivery of the documents to the prosecutor and court is delayed, regardless of cause. We cannot conceive our Legislature as intending such a result by enacting the Interstate Agreement on Detainers. As a matter of fact, had the Legislature intended the 180-day period to begin from the time a defendant delivers the notice and request to the warden, commissioner of corrections or other official having custody over him, it could have so signified by appropriate language.”
We subscribe to this reasoning and believe the result reached effectuates the purpose of the Act. We do not think the legislature intended that prisoners were entitled to dismissal of the charges against them where their request and notice is lost or delayed in the mail. The State should not be required to bring the defendant to trial within 180 days of the time the request was mailed, regardless of when it was received.
Here the notice and request were received by the Clerk of the Wyandotte County District Court on October 5,1981. There is no indication in the record on appeal when the request was received by the district attorney’s office so we assume for the purpose of this appeal it was before or on the same date. Accordingly, the 180-day period began to run on October 5, 1981, and ended on April 3, 1982, which was a Saturday. K.S.A. 60-206(a) provides that where the last day of the period to be computed falls on a Saturday, Sunday or legal holiday the period runs to the end of the next day which is not a Saturday, Sunday or legal holiday. It further provides:
“When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.” K.S.A. 60-206(a).
No other method for computing the speedy trial provision is contained in the Agreement on Detainers. The trial commenced on Monday, April 5, 1982. The words “brought to trial” contained in Article III mean only that a proceeding must be initiated, not that the case be finally disposed of. People v. Beamon, 83 Mich. App. 121, 129, 268 N.W.2d 310 (1978). Accordingly, we find the appellant was properly brought to trial within the 180-day speedy trial provision contained in Article III of the Agreement on Detainers. See People v. Bielecki, 41 Colo. App. at 258.
As his final point on appeal the appellant contends the trial court erred in admitting into evidence the statements made by young Joseph Jackson to the police officers. The trial court admitted the statements on the ground they were not offered to prove the truth of the matter asserted, but to explain the actions of the officers in staking out the Cadillac. A limiting instruction was given directing the jury to consider the statements only for that purpose and not to establish the identity of the accused.
This court has held that statements of dispatchers or informants, offered only to explain the course of action of an investigating officer, are admissible. See State v. Laubach, 220 Kan. 679, 683, 556 P.2d 405 (1976), and cases cited therein. However, the substance of a communication by an informant to a police officer is inadmissible hearsay when it tends to identify the accused and establish his guilt. State v. Thompson, 221 Kan. 176, 179, 558 P.2d 93 (1976). In Thompson, testimony concerning an anonymous phone call to a police officer advising that a crime under investigation was committed by a man identified as “Crazy John” was held to be inadmissible.
We note that in the absence of the hearsay testimony the evidence against the appellant was largely circumstantial, although sufficient to support the conviction. The appellant testified he was in the area where he was apprehended trying to locate the home of a girl he had been out on a date with the day before, and he fled from the officer who approached him because he did not know the officer and was afraid of being robbed. There was no physical evidence produced at trial linking the appellant to the Buick. Although the victim identified the appellant at the preliminary hearing and at trial, this identification was brought into question on cross-examination because of the short length of time the victim was able to observe the robbers and the victim’s failure to identify the appellant from a lineup the day of the robbery. Thus, the hearsay statements of Joseph Jackson, a six-year-old, were essential to place the appellant in the area at the time of the robbery and establish him as the driver of the Buick. The hearsay statement asserted for this purpose is inadmissible under the exception addressed in State v. Thompson.
This hearsay testimony was admissible, however, under another exception to the hearsay rule contained in K.S.A. 1982 Supp. 60-460(d)(3), which makes hearsay admissible on the ground of necessity. It provides:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement [is admissible] ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
Under this exception (1) the declarant must be unavailable as a witness, (2) the matter described must have been recently perceived by the declarant and the statement made while his memory was fresh, and (3) it must have been made under circumstances so as to show that it was in good faith, before there was an action pending and with no incentive to falsify or distort. See State v. Hobson, 234 Kan. 133, Syl. ¶ 11, 671 P.2d 1365 (1983); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d), p. 240 (1979).
Here the prosecutor stated to the court the declarant, Joseph Jackson, could not be located. The statements made to the officer explained why he and his younger brother were alone in the car and where the driver had gone. The statements were made shortly after they had been left alone. It is highly doubtful the six-year-old would make the statements except in good faith and without any incentive to falsify or distort, as he was merely responding to the inquiries of the officer concerning why he and his brother were left alone in the car. These statements were obviously made prior to the commencement of the criminal prosecution. Accordingly, the statements were admissible under K.S.A. 1982 Supp. 60-460(d)(3). See State v. Churchill, 231 Kan. 408,417-18, 646 P.2d 1049 (1982); State v. Adams, 223 Kan. 254, 255, 573 P.2d 604 (1977). The judgment of the 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. Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 65, 652 P.2d 205 (1982); Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980).
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.;
This is an action in which defendant Billie Wayne Johnston has appealed from the district court’s determination that a common law marriage between defendant and plaintiff Jodie E. Johnston (now Eaton) did not exist and the court’s refusal to consider a division of property. The Court of Appeals heard the appeal and affirmed the district court’s judgment as to the nonexistence of a common law marriage but reversed and remanded the case for further proceedings relative to division of property. Eaton v. Johnston, 9 Kan. App. 2d 63, 672 P.2d 10 (1983). The matter is before this court on petition for review granted to the plaintiff.
We adopt the statement of facts contained in the Court of Appeals opinion as follows:
“Plaintiff and defendant were married December 21, 1957. They were divorced August 3, 1977. Four children had been born of their marriage, one of whom, a son born July 16, 1970, is still a minor and remains in the custody of plaintiff. By the decree of August 3,1977, much and perhaps most of the property which had been accumulated by the parties was awarded to plaintiff.
“A short period after their divorce was granted, the parties resumed living together and continued to do so for approximately two and one-half years. During this period the parties jointly acquired a house and incorporated their business. On September 4, 1981, defendant conveyed his interest in the house and all of his stock in the corporation to plaintiff. They separated again September 5, 1981.
“Plaintiff filed her petition in this action December 19, 1981, seeking an adjudication that a common law marriage between herself and defendant did not exist, but, in the alternative, if the court should find they were in fact married, that she be granted an absolute divorce, an equitable division of the property of the parties acquired after August 3,1977, custody of their minor child, and other relief.
“By his answer and cross-petition, defendant alleged the existence of a common law marriage and prayed for divorce, an equitable division of property ‘acquired during their marriage,’ custody of the minor child, and other relief.
“Following a two-day evidentiary hearing, the court rendered its findings and judgment, ‘that the parties are not married and that there was no common-law marriage between them from and after August 3, 1977.’ The court then also awarded custody of the child to plaintiff and prescribed visitation rights of defendant. No mention was made of a division of property at that time, nor did either of the parties then seek a further adjudication in that regard. However, the issue was presented in connection with defendant’s motion for new trial, which the court denied after concluding since there was no common law marriage, it was ‘powerless to move ahead and apportion property.’ ” 9 Kan. App. 2d at 63-64.
The first issue before us is whether there was substantial competent evidence to support the district court’s finding there was no common law marriage between the parties.
We believe the Court of Appeals adequately disposed of this issue and adopt the following portion of the intermediate appellate court’s opinion:
“In considering whether reversible error was committed in finding that a common law marriage did not exist, several long-standing rules of appellate review are to be taken into account. A district court judgment is presumed valid and will not be set aside absent an affirmative showing of error by the appellant. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982). A finding that a party has not sustained its requisite burden will not be disturbed absent an arbitrary disregard of undisputed evidence. Krauzer v. Farmland Industries, Inc., 6 Kan. App. 2d 107, 626 P.2d 1223, rev. denied 229 Kan. 670 (1981). Because of the trial court’s advantageous position, the appellate court does not retry disputed factual issues nor pass on the credibility of witnesses and the weight to be given each piece of testimony. Driscoll v. Driscoll, 220 Kan. 225, 228, 552 P.2d 629 (1976); Sullivan v. Sullivan, 196 Kan. 705, 708, 710, 413 P.2d 988 (1966).
“Defendant contends sufficient evidence was presented to establish the three elements of common law marriage, i.e. (1) a capacity 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. In re Estate of Keimig, 215 Kan. 869, 872, 528 P.2d 1228 (1974). The trial court found there was insufficient evidence to support a finding of either the second or third elements. Conflicting testimony was presented on both. Plaintiff consistently denied a marriage agreement with defendant, and denied holding defendant out as her husband after their divorce on August 3, 1977. These denials suffice to support a negative finding against the one having the burden of proof. Driscoll, 220 Kan. at 228. However, it was also shown that on several occasions defendant asked plaintiff to remarry him; and, during the period they lived together, both parties filed separate tax returns as ‘unmarried head of household’ or single taxpayers. The evidence also indicated defendant was involved with another woman and told his family of his plans to marry that woman. The trial court did not err in finding a common law marriage did not exist between the parties.” 9 Kan. App. 2d at 64-65.
The next matter to be determined is plaintiff s motion for summary disposition on the issue relative to property division.
Supreme Court Rule 7.041 (232 Kan. cxvii) permits summary disposition of an appeal:
“In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision. Such an order may be entered on the court’s own motion after ten (10) days’ notice to the parties, citing the decision deemed controlling and providing an opportunity to show cause why such an order should not be filed.
“At any time during the pendency of the appeal, any party may move for summary disposition, citing the prior controlling decision. The motion shall be served on opposing counsel who may respond within ten (10) days. Thereafter, the court may enter an order summarily affirming or reversing, or denying the motion.”
Plaintiff contends Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971), is dispositive of the issue of whether a district court, having found no common law marriage to have existed, may order an equitable division of the property accumulated during the period of cohabitation.
We do not agree. Perrenoud involved a situation where a divorce was granted in California with the plaintiff husband being awarded custody of the minor children who were residing in California with him except when his ex-wife had them for holidays in Kansas. At the end of one summer vacation the wife refused to return the children to California. The husband sought to enforce the California custody order in Johnson County, Kansas, by habeas corpus proceedings. The wife filed for a divorce action in Wyandotte County, Kansas. Perrenoud is clearly not a prior controlling appellate decision on the issue before us and the motion for summary disposition is, accordingly, denied.
We turn now to the final issue which is whether the trial court erred in holding it lacked authority to make an equitable division of the property accumulated by the parties during the post-divorce cohabitation period without benefit of formal or common law marriage.
The Court of Appeals in discussing the issue stated:
“Error is also asserted in the refusal of the trial court to make an equitable division of property.
“It is to be noted that a division of the property accumulated by these parties to the date of their divorce on August 3, 1977, was effected by the decree rendered on that date and, in light of the fact the parties did not remarry, the property division then adjudicated is final and may not now be disturbed. Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974); Richardson v. Richardson, 3 Kan. App. 2d 610, 599 P.2d 320, rev. denied 226 Kan. 792 (1979). However, we believe the court was in error in not considering and exercising its discretion in directing a division of the property accumulated by the parties during the period they lived together following their divorce. By their pleadings, both plaintiff and defendant sought such relief.
“In the very early case of Fuller v. Fuller, 33 Kan. 582, 586-87, 7 Pac. 241 (1885), the court considered the effect of a void marriage and stated:
“ ‘It is our opinion, however, that in all judicial separations of persons who have lived together as husband and wife, a fair and equitable division of their property should be had; and the court in making such division should inquire into the amount that each party originally owned, the amount each party received while they were living together, and the amount of their joint accumulations.’
“In Werner v. Werner, 59 Kan. 399, 401-02, 53 Pac. 127 (1898), in again considering a void marriage, the court stated:
“ ‘Strictly speaking, this action as it was tried was not a divorce proceeding, but it was rather one to annul a void marriage. Although instituted under the statutes to obtain a divorce, the pleadings were so drawn and the issues so shaped that it was within the power of the court to grant relief independently of the statutes relating to divorce, and it rendered a decree of nullity rather than a decree of divorce. . . .
“ ‘. . . But independently of the statute of divorce, we think the court had authority to decree, not only an annulment of the marriage, but also the division of the property which had been jointly accumulated by the parties. It was an equitable proceeding, and, within its equity power, the District Court had full jurisdiction to give adequate relief to the parties.’
“Reese v. Reese, 132 Kan. 438, 295 Pac. 690 (1931), was an action wherein the plaintiff sought an accounting with the defendant for property accumulated by them while they lived together as husband and wife without being married. The court held it was proper to render judgment in favor of the plaintiff for an accounting of the property accumulated by them while living together as husband and wife without being married, and to give her a proper portion of that property. The court quoted from Fuller and from Werner, and noted:
“ ‘The plaintiff is not seeking to recover as the wife of the defendant. She is not seeking to recover from the defendant on a contract. She is not seeking to recover property held by the defendant in his own right. She is seeking to recover a part of the property which she assisted in accumulating and which justly belongs to her.’ 132 Kan. at 441.
“In Benewiat v. Benewiat, 181 Kan. 621, 313 P.2d 251 (1957), a common law marriage was alleged by the plaintiff and denied by the defendant. The plaintiff filed her reply alleging that, if a common law marriage was found not to exist, there should be an equitable and just division of property described in her petition, which was the result of the joint earnings and labor of the parties during the time they lived together as husband and wife. In holding the reply erroneously stricken, the court stated:
“ ‘G.S. 1949,60-1506, provides that when parties appear to be in equal wrong the court may, in its discretion, refuse to grant a divorce, and in any such case, or in any other case where a divorce is refused, the court may make an equitable division and disposition of the property of the parties as may be proper, equitable and just. This, in reality, is what plaintiff sought in her reply. The action was one purely equitable in nature, and, under the circumstances, the court had jurisdiction to grant or deny the relief sought by the pleadings in the case.’ p. 623.
“When judgment was rendered in the case before us, K.S.A. 60-1606 (Weeks) was in effect and provided in part:
“ ‘If a decree of divorce, separate maintenance or annulment is denied other than for the equal fault of the parties the court may nevertheless make any of the orders authorized by this section for the benefit of the minor children of the parties or for the equitable division of the property of the parties.’ Emphasis added.
“In Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971), a case alleging common law marriage, in affirming the conclusion that such did not exist and there were no marital ties to be severed by a divorce:
“ ‘Mr. Schrader’s final complaint revolves around the trial court’s failure to change the custody of the children from their mother. It is true that K.S.A. 60-1606 provides substantially, in part, that even though a decree of divorce be denied, the court may make provision for the custody and support of minor children. Hence, the court could have entered a custody order in this case had it believed there was any occasion to do so.’ 207 Kan. at 352. See also Scimeca v. Scimeca, 1 Kan. App. 2d 70, 561 P.2d 904 (1977).
“Even though the court found the parties had not remarried and a decree of divorce was denied, the court, under either K.S.A. 60-1606 as it then existed or in the exercise of its inherent power to do equity independent of the statute, was authorized to make an equitable division of the property accumulated by the parties during the period they were living together.
“Plaintiff asserts defendant’s failure to raise the issue of property division until the motion for new trial bars him from raising that issue on appeal. Predecessor statutes to K.S.A. 60-1606 have been construed as giving the trial court discretion to divide property even where no request or demand in the pleadings is made. Fincham v. Fincham, 160 Kan. 683, 690-91, 165 P.2d 209, modified 161 Kan. 753, 173 P.2d 244 (1946); McCormick v. McCormick, 100 Kan. 585, 586-87, 165 Pac. 285 (1917). As noted in Fincham, courts are not compelled to make a division of property rights but they may do so, and whether they will do so rests within their discretion. Cf. K.S.A. 1982 Supp. 60-1606.
“Here the court did not exercise its discretion but avoided the issue entirely with the conclusion it was powerless to do so. We deem this is to be error and, accordingly, this cause is remanded for further hearing and division of such property as may have been jointly accumulated by the parties or acquired by either with the intent that both should have an interest therein during the period they lived together following their divorce on August 3, 1977, all in such manner as the court in its discretion may find to be just and equitable.” 9 Kan. App. 2d at 65-67.
We have no difficulty in concluding the Court of Appeals correctly held the trial court “in the exercise of its inherent power to do equity independent of the statute [K.S.A. 60-1606 (Weeks)], was authorized to make an equitable division of the property accumulated by the parties during the period they were living together.” The cases cited by the Court of Appeals relative thereto adequately support this conclusion. In addition to the portion of Werner v. Werner, 59 Kan. 399, 53 Pac. 127 (1898), cited by the Court of Appeals, we add the following:
“The court has the same power to make equitable division of the property so accumulated as it would have in case of the dissolution of a business partnership.” 59 Kan. at 403.
We have difficulty, however, with the conclusion of the Court of Appeals that K.S.A. 60-1606 (Weeks) authorizes the trial court to make a division of the property under the circumstances herein. The applicable version of the statute provides:
“The court may grant or refuse a divorce when the parties are found to be in equal fault, except that where the court finds incompatibility it may not refuse to grant a divorce on that ground. In either event the court may make any of the orders authorized by K.S.A. 60-1610 except the restoration of a maiden name if the divorce is refused. If a decree of divorce, separate maintenance or annulment is denied other than for the equal fault of the parties the court may nevertheless make any of the orders authorized by this section for the benefit of the minor children of the parties or for the equitable division of the property of the parties.” Emphasis supplied.
The district court held there was no common law marriage between the parties. As stated in Perrenoud v. Perrenoud, 206 Kan. 559:
“A valid marriage between the parties in a divorce action is a prerequisite upon which jurisdiction is based, and a divorce is the judicial dissolution of a marriage relationship.” Syl. ¶ 1.
Is a finding no marriage existed synonymous with the denial of a divorce within the purview of K.S.A. 60-1606 .(Weeks)? We believe not.
Benewiat v. Benewiat, 181 Kan. 621, 313 P.2d 251 (1957), cited by the Court of Appeals, does indicate property may be divided pursuant to G.S. 1949, 60-1506 (predecessor to K.S.A. 60-1606 [Weeks]) where no common law marriage is found to exist, but goes on to categorize the action as “purely equitable in nature.” p. 623.
Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971), also relied upon by the Court of Appeals, does not squarely address the issue before us. In Schrader the parties had been married and divorced and had subsequently resumed cohabitation. A second divorce action was commenced to dissolve the alleged common law marriage. The trial court found no common law marriage existed. The defendant appealed claiming error inter alia on the trial court’s failure to change custody of the minor child to him. Custody had been granted in the original divorce action to the plaintiff. The opinion states the trial court treated the custody issue as “a motion to change custody in the old divorce case.” In any event, the custody issue in Schrader really revolved around the judicial decision, on the merits, not to change custody rather than the authority of the trial court to determine the matter.
We conclude K.S.A. 60-1606 (Weeks) does not authorize a district court to make an equitable division of the property of the parties after a finding that no common law marriage existed. Language indicating otherwise in Benewiat and Schrader is disapproved. As previously held herein, the trial court did have authority, in the exercise of its inherent power to do equity, to make an equitable division of the property — said authority being independent of K.S.A. 60-1606 (Weeks). We, therefore, approve and adopt the ultimate conclusion of the Court of Appeals as follows:
“Here the court did not exercise its discretion but avoided the issue entirely with the conclusion it was powerless to do so. We deem this to be error and, accordingly, this cause is remanded for further hearing and division of such property as may have been jointly accumulated by the parties or acquired by either with the intent that both should have an interest therein during the period they lived together following their divorce on August 3, 1977, all in such manner as the court in its discretion may find to be just and equitable.” 9 Kan. App. 2d at 67.
The judgment of the Court of Appeals is affirmed as modified; the judgment of the district court is affirmed in part and reversed in part with directions.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by Rodney Fosnight from his conviction of aggravated robbery, K.S.A. 21-3427, resulting from his jury trial in Montgomery District Court. Three issues are presented: Whether the evidence was sufficient to sustain the trial court’s denial of defendant’s motion for judgment of acquittal and to sustain the conviction; whether defendant’s absence from a hearing in chambers, when his counsel asked leave to withdraw, constituted reversible error; and whether the sentence imposed pursuant to the habitual criminal statute, K.S.A. 1983 Supp. 21-4504, should be set aside based upon prejudice inflicted upon the defendant at the in-chambers hearing.
The guidelines applicable to consideration of the first issue have been repeatedly stated. A trial judge, in passing on a motion for judgment of acquittal, must determine whether upon the evidence — giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact therefrom — a reasonable mind or a rational trier of facts might fairly conclude guilt beyond a reasonable doubt. State v. Hutton, 232 Kan. 545, 550, 657 P.2d 567 (1983), quoting State v. Williams, 229 Kan. 290, 296, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981). On appellate review, the question presented is whether all of the evidence adduced at the trial, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the accused guilty beyond a reasonable doubt. State v. Pham, 234 Kan. 649, 675 P.2d 848 (1984); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979); Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781, reh. denied 444 U.S. 890 (1979). Appellate courts look only to the evidence in favor of the verdict; they do not weigh the evidence; and if the essential elements are sustained by any competent evidence, the conviction stands. State v. Pham, 234 Kan. 649.
The defendant was charged and convicted of the July 20, 1981, aggravated robbery of Jim Riedle in Montgomery County, Kansas. The essential elements of that offense, pursuant to K.S.A. 21-3427 and under the third amended information filed in this case, are:
(1) that the defendant intentionally took property from the person or presence of Jim Riedle;
(2) that the taking was by force or threat of force;
(3) that the defendant was armed with a deadly weapon; and
(4) that the act occurred on or about July 20, 1981, in Montgomery County, Kansas.
Jim Riedle, an assistant manger of a Quik Trip store in Independence, Kansas, identified the defendant as the man who robbed him. He testified in substance that a young man wearing a yellow raincoat or rain jacket and carrying a .22 caliber rifle entered the store, pointed the gun at Riedle, and ordered him to get a paper bag and put money in it. Riedle complied and the man left the store taking with him the gun and the bag containing about $600. Smith, an accomplice, testified that Fosnight committed the robbery and that the two fled on foot. A yellow raincoat and a .22. caliber rifle were found outside a home in the vicinity of the Quik Trip store. Another witness testified that both Smith and Fosnight acted suspiciously later that same evening, and that they “slouched down in the back seat like they didn’t want to be seen” when they rode past the Quik Trip store in the back seat of the witness’s car. Defendant, in his brief, bases his argument on the lack of credibility of Riedle and Smith. Though Smith’s testimony differed from earlier statements, and though there were some conflicts in Riedle’s testimony, we cannot weigh the evidence; the issue of the weight of the evidence was properly left to the jury. We conclude that there was substantial competent evidence to support the verdict, that the trial court correctly denied defendant’s motion for judgment of acquittal, and that the evidence is sufficient to convince an appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
We turn now to the second issue. After all of the defense witnesses except the defendant had testified, defense counsel asked for a recess to chambers for the purpose of taking up motions. The jury trial was recessed, and the judge, counsel, the defendant and the codefendant retired to chambers. Counsel for Fosnight asked that the matter be taken up with just counsel present, and he waived the defendant’s right to be present. Fosnight and his codefendant were excused by the judge, and both defendants left the judge’s chambers. Fosnight’s counsel then said:
“Very simply, I’m caught in a classic awkward professional situation where there are things that I know that come to me through attorney-client privilege, and what can I say, except that on that basis without disclosing any more to the Court, I respectfully move to withdraw.”
Counsel for the State then speculated at length as to the reason for the motion, concluding that defense counsel must be aware that the defendant intended to perjure himself, and that the defense counsel cannot, under the code of ethics, be a party to such action. The trial judge denied the motion to withdraw, commenting that counsel had done an excellent job, and suggesting that counsel advise the defendant as to the penalties for peijury and the possibility that it might be a third felony conviction if the defendant committed peijury and were prosecuted and convicted of that offense. The trial then resumed. The defendant was sworn and took the witness stand. His attorney asked: “Mr. Fosnight, is it your desire to tell the court some things today?” Defendant responded affirmatively, and counsel said: “Okay, go ahead.” Without further questioning by his attorney, defendant then proceeded to tell his story.
The Code of Professional Responsibility, as adopted by the House of Delegates of the American Bar Association, has been adopted by this court and governs the conduct of attorneys within this state. See 232 Kan. clxxv et seq. Canon 4, entitled A Lawyer Should Preserve the Confidences and Secrets of a Client, provides in applicable part:
“DR 4-101 ....
“(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: “(1) Reveal a confidence or secret of his client.
“(C) A lawyer may reveal:
“(3) The intention of his client to commit a crime and the information necessary to prevent the crime.”
Canon 7, entitled A Lawyer Should Represent a Client Zealously Within the Bounds of the Law, provides in part:
“DR 7-102 Representing a Client Within the Bounds of the Law.
“(A) In his representation of a client, a lawyer shall not:
“(4) Knowingly use perjured testimony or false evidence.
“(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
“(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”
The Standards Relating to the Defense Function, adopted by the American Bar Association, Approved Draft, 1971, discusses the situation with which trial counsel was faced in this case. The pertinent standard reads:
“7.7 Testimony by the defendant.
“(a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer’s independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must advise his client against taking the witness stand to testify falsely.
“(b) If, before trial, the defendant insists that he will take the stand to testify falsely, the lawyer must withdraw from the case, if that is feasible, seeking leave of the court if necessary.
“(c) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises during the trial and the defendant insists upon testifying falsely in his own behalf, it is unprofessional conduct for the lawyer to lend his aid to the perjury or use the perjured testimony. Before the defendant takes the . stand in these circumstances, the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing the fact to the court. The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant’s known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument.”
For cases where this situation has arisen, see Annotation, Rights and Duties of Attorney in a Criminal Prosecution Where Client Informs Him of Intention to Present Perjured Testimony, 64 A.L.R.3d 385 et seq.
This problem has previously been before this court. In State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970), the accused informed his counsel of a new version of the events at issue four days before trial was scheduled to commence. Believing the concocted story to be false, the attorney informed his client that he would not be a party to perjury. The accused replied that he was willing to run the risk of perjury and insisted that the trial proceed on the basis of the new version. Counsel promptly informed the trial judge of his client’s avowed intention to commit perjury and of his demand that counsel assist him in the unethical conduct, but the attorney divulged no confidential attorney-client communications. Counsel asked leave to withdraw. The trial court denied the motion. Trial proceeded; defendant did not testify. Following his conviction defendant appealed, contending as his principal complaint that the trial court erred in refusing his attorney’s motion to withdraw. Justice O’Connor, speaking for a unanimous court, said:
“Looking first at the propriety of Mr. Anderson’s actions after he learned of the defendant’s ‘new’ version of the facts and his insistence upon the defense being conducted along that line, we are of the opinion Anderson acted according to the moral and ethical obligations required of him as a member of the legal profession.
“The law requires honest, loyal, genuine, and faithful representation of a defendant by his attorney, whether employed or court-appointed. (State v. Brown, 204 Kan. 430, 464 P.2d 161; State v. Calhoun, 194 Kan. 378, 399 P.2d 886.) A lawyer’s professional duty requires him to be honest with the court and to conform his conduct to recognized legal ethics in protecting the interests of his client. Counsel, however, is never under a duty to perpetrate or aid in the perpetration of a crime or a dishonest act to free his client. Neither is he required to stultify himself by tendering evidence or making any statement which he knows to be false as a matter of fact in an attempt to obtain an acquittal at any cost. In conducting his task, counsel should be guided by the standard ‘all fair and honorable means,’ as laid down by Canon 5 of the American Bar Association Canons of Professional Ethics (198 Kan. xvii), in discharging the duty imposed by that canon ‘to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.’ For a few of the decisions speaking of these ethical considerations, see, Jackson v. United States, 258 F. Supp. 175, affirmed, 384 F.2d 375, cert. denied, 392 U.S. 932, 20 L.Ed.2d 1392, 88 S.Ct. 2298; Bowler v. Warden, Maryland Penitentiary, 236 F. Supp. 400; United States v. Von Der Heide, 169 F. Supp. 560; Williams v. Beto, 354 F.2d 698 (5th Cir., 1965); Wood v. United States, 357 F.2d 425 (10th Cir., 1966), cert. denied, 385 U.S. 866, 17 L.Ed.2d 94, 87 S.Ct. 129. Also, see, Canons, 15, 16, 22, 31, and 32.
“The high ethical standards demanded of counsel in no way mollify the fair, full and loyal representation to which an accused is entitled as a part of due process. They are entirely consistent with the objective of our legal system — to ascertain an accused’s guilt or innocence in accordance with established rules of evidence and procedure designed to develop the facts truthfully and fairly. Counsel, of course, must protect the interests of his client and defend with all his skill and energy, but he must do so in an ethical manner.
“We perceive nothing violative of the confidentiality inherent in the attorney-client relation by Mr. Anderson’s making known to the court defendant’s avowed intention of presenting peq'ured testimony. While as a general rule counsel is not allowed to disclose information imparted to him by his client or acquired during their professional relation, unless authorized to do so by the client himself (State v. Leigh, 178 Kan. 549, 289 P.2d 774), the announced intention of a client to commit perjury, or any other crime, is not included within the confidences which an attorney is bound to respect. (Canon 37; also, see, K.S.A. 60-426[fe][l].) Moreover, the record does not disclose the specific details of any communications between the defendant and his counsel were ever divulged by Anderson to the court or the prosecution. When Anderson learned that the defendant would not agree to the presentation of a defense consistent with the facts defendant initially related to him, and which were substantiated by Anderson’s own independent investigation, he acted according to the dictates of his own conscience and his professional obligation to the court, and properly asked to be relieved from his assignment.
“When the trial judge became informed of counsel’s predicament, he was faced with a difficult decision calling for the exercise of sound judicial discretion. The right to counsel, which the court was obligated to safeguard for the accused’s benefit, contemplates the guidance of a responsible, capable lawyer devoted to his client’s interests. (Ray v. State, 202 Kan. 144, 446 P.2d 762.) As long as the trial court had a reasonable basis for believing that the attorney-client relation had not deteriorated to a point where appointed counsel could no longer give effective aid in the fair presentation of a defense, the court was justified in refusing to appoint new counsel.
“A careful study of the record convinces us that the situation confronting the court, and about which defendant now complains, was precipitated by the defendant himself. On the morning of trial when Anderson asked the court for permission to withdraw, he told the court he had previously asked the defendant to request that another attorney be appointed in his stead but defendant refused because he ‘desired the prejudicial error’ remain for purposes of appeal. Defendant in no way denies his attorney’s statement, as evidenced by the colloquy set forth above at the close of the state’s evidence. Obviously, the defendant wished to dictate the conduct of his defense in a manner which the law does not countenance, and by complicating the situation, hoped to gain some advantage, both at trial and on appeal. One who by his own acts invites error is in no position to complain or take advantage of it on appeal. (State v. Cantrell, 201 Kan. 182, 440 P.2d 580, cert. denied, 393 U.S. 944, 21 L.Ed.2d 282, 89 S.Ct. 315.) Despite the fact that defendant then changed his stance and, according to Anderson, refused to cooperate and to divulge just what his testimony would be, Anderson, with commendable professional candor and patience, stated he was prepared to represent the defendant to the best of his legal ability.
“Defendant, by his devious methods, invited the only course of action available to the trial judge if the case was to be disposed of with any reasonable degree of dispatch. The effective and efficient administration of criminal justice requires that a trial court not yield to every whim and demand of a defendant. Had the court granted counsel’s motion to withdraw, the same predicament could easily have been precipitated by defendant with respect to any new counsel that might have been appointed.
“The trial judge’s confidence in Mr. Anderson’s capability to remain in the case was well placed, in our view. In addition to presenting the motion in limine, Anderson thoroughly cross-examined the state’s witnesses, particularly as to the identity of the person who committed the robbery. He made an opening statement for the defense and presented the testimony of an attorney present at the lineup with regard to the defendant’s behavior and appearance, which, of course, was relevant to the question of identification. Further,' defendant was fully informed by counsel, as well as the court, of his right to take the stand and ‘tell his story,’ but defendant declined to do so.
“Success can never be deemed the measure of whether or not an accused has had the effective assistance of counsel. The representation accorded defendant was far more than token or perfunctory in nature, and there can be no question about its adequacy. (Baker v. State, 204 Kan. 607, 464 P.2d 212; State v. Brown, supra.)
“Under all the facts and circumstances, we hold that the trial judge did not abuse his discretion to the prejudice of defendant’s substantial rights by requiring Anderson to remain as counsel. (See, State v. Way, 204 Kan. 375, 461 P.2d 820; State v. Walker, 202 Kan. 475, 449 P.2d 515.)” 205 Kan. at 236-239.
The rules stated and applied in Henderson are equally applicable here.
Under the rules stated above, counsel for Fosnight took one of the courses available to him. He asked for leave to withdraw without disclosing to the trial court any confidential information disclosed to him by his client. When that motion was denied, counsel properly permitted his client to tell his story from the witness stand, without engaging in direct examination of the client as a witness in the conventional manner. He identified the witness as the defendant and then permitted him to tell his story to the jury without further questioning or encouragement. Counsel did not violate the Code of Professional Responsibility. The in-chambers conference added nothing to the proceedings here, and did not inform the trial judge of anything he would not have surmised at once had counsel simply put the defendant on the stand and permitted him to proceed to tell his story without encouragement or help from counsel.
Defendant cites K.S.A. 22-3405, which provides in part:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” (Emphasis supplied.)
Defendant contends that he was prejudiced by not being present at the in-chambers conference because his counsel was not representing him at that hearing, and that he was sentenced more harshly as a result of that conference.
The matter of the withdrawal of counsel, upon being advised that his client intends to commit peijury, is a matter governed by ethical standards and is, therefore, a matter of law. We have frequently held that in-chambers conferences dealing with legal or procedural questions are not stages of the trial at which a defendant’s presence is required in order to avoid prejudice. State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983) (in-chambers inquiry into juror’s outside knowledge of the case); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982) (in-chambers conference regarding exercise of peremptory challenges); State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980) (in-chambers conference on questions of law presented in motions in limine); State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979) (in-chambers hearings concerning motion for judgment of acquittal and juror misconduct, where defense counsel stated that defendant waived her.right to be present); State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977) (in-chambers conference concerning jury instructions).
In Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978), defense counsel abruptly stopped questioning the defendant and requested a recess. In chambers, with the defendant absent, counsel made a motion to withdraw. He did not state any reason for the motion. The motion was denied, trial proceeded, defendant was convicted, and the defendant on appeal claimed error. The Ninth Circuit held that the lawyer’s actions unequivocally informed the trial judge that the defendant was going to perjure herself, and thus the defendant was denied a fair trial. Lowery, however, differs materially from the case at hand since in that case trial was to the court, not to a jury. Here, the jury was not informed in any manner of the substance of the in-chambers conference, and we find that the defendant’s right to a fair trial was not prejudiced.
The appellate court in Lowrey also held that “nothing occurred off the record during the chambers conference that rendered appellant’s absence constitutionally improper. The subject of the off-the-record conference was purely procedural and appellant’s presence was not required.” 575 F.2d at 729. Similarly, defendant Fosnight was not prejudiced in the proceedings here.
The final issue is whether the sentence should be set aside. Contrary to defendant’s contention, the record does not indicate that the trial judge determined to invoke the habitual criminal act at the time of the in-chambers conference. He merely reminded counsel what could occur if the defendant committed perjury and were later to be convicted of that offense, and he asked counsel to so advise his client. The State had already given notice that it intended to invoke the habitual criminal act, and the trial court could not do so on its own initiative. K.S.A. 1983 Supp. 21-4504. The sentence imposed seven months later was within the statutory limits, ánd we find nothing in the record to indicate prejudice to the defendant in its imposition.
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The opinion of the court was delivered by
Prager, J.:
This is an interlocutory appeal taken by the State from pretrial orders of the district court of Barton County suppressing certain evidence of the State and excluding the same from the trial of the defendant, Chester Newman. The defendant was charged with arson, K.S.A. 21-3718; burglary, K.S.A. 21-3715; and theft, K.S.A. 21-3701(<z). The Court of Appeals in an unpublished opinion dismissed the interlocutory appeal for want of jurisdiction. The Supreme Court granted the State’s petition for review.
For purposes of this appeal, the facts are undisputed. On January 12,1982, the Good Times Club located in Barton County was damaged by fire. An investigation revealed arson as the cause; stereo equipment located within the club was discovered missing after the fire. In the course of their investigation, Barton County sheriffs officers interviewed Catherine Newman, defendant’s wife. She told them what she had observed the night of the fire concerning the defendant’s activities. She stated that she had accompanied defendant to Hutchinson where she observed defendant sell stereo equipment. The officers, using this information, went to Hutchinson and located the purchaser and also the stereo equipment allegedly stolen from the club prior to the fire. The purchaser of the equipment identified defendant Newman as the one from whom he made the purchase. Defendant was subsequently charged with arson, burglary, and theft.
Prior to the pretrial conference, defendant filed a motion to suppress his wife’s testimony and all testimony and evidence obtained as a result of her statements to investigating officers. The prosecution filed a motion to endorse additional witnesses who would testify as to evidence of a prior crime allegedly committed by defendant in Russell County for which defendant had been tried and acquitted. The trial court took both motions under advisement and subsequently sustained the defendant’s motion and denied the prosecution’s motion. Additional and more specific facts will be presented later in the opinion.
The State filed this interlocutory appeal pursuant to K.S.A. 22-3603 which provides as follows:
“22-3603. Interlocutory appeals by the state. When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in die trial Court shall be stayed pending determination of the appeal.” (Emphasis supplied.)
Defendant contends that this court does not have jurisdiction to hear the interlocutory appeal and that the court should dismiss the appeal. It is the position of the State that the district court made an order suppressing evidence which is' essential to its case and it, therefore, is entitled to an interlocutory appeal. The determination of the issue presented requires us to consider K.S.A. 22-3603 and the Kansas decisions which discuss the scope of the issues which will be considered on an interlocutory appeal by the State. This specific question has never before been presented to the Supreme Court.
In dismissing the State’s interlocutory appeal in this case, the Court of Appeals relied upon its decision in State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980), which provides an extensive discussion on the jurisdiction of a Kansas appellate court to hear an interlocutory appeal by the State under K.S.A. 22-3603. Simply stated, Boling made a distinction between a trial court ruling suppressing evidence obtained in violation of constitutional rights and a ruling excluding evidence because of the statutory rules of evidence. It concluded that interlocutory appeals may properly be taken from the former but not from the latter. In Boling, the court noted that piecemeal appeals are frowned upon in this state, particularly in criminal cases, where the defendant’s constitutional right to a speedy trial is involved. State v. Ramirez, 175 Kan. 301, 263 P.2d 239 (1953). The Court of Appeals was obviously concerned about unnecessary delays which would occur in criminal prosecutions, if the State were permitted to appeal every evidentiary ruling of a trial court entered prior to trial.
The opinion in Boling acknowledged that the Kansas cases have implicitly recognized appellate jurisdiction of interlocutory appeals from an order which prohibits the introduction of relevant evidence for reasons other than the involuntariness of a confession or the illegality of a search and seizure under K.S.A. 22-3215 and 22-3216. In this regard Boling stated:
“Nevertheless, in each of those cases the order had a purpose closely akin to that of the general exclusionary rule. That is, it served either to vindicate constitutional rights or as a sanction for official conduct deemed prejudicial to the defendant, and in either case to deter such conduct in the future.
“When ‘other crimes’ evidence is examined against the kinds of evidence which have been subject to ‘suppression’ orders which have been found appeal-able, it is apparent that there is a qualitative difference. Under [State v.] Bly [215 Kan. 168, 523 P.2d 397 (1974)] and cases following it, the admissibility of evidence of other crimes or civil wrongs depends on a weighing of relevance and materiality against possible prejudice. The court here found that the proposed evidence would be ‘not very material.’ This is the type of discretionary eviden tiary ruling made regularly in the course of every trial. No constitutional rights are involved and no deterrent effect is sought.” pp. 377-78.
Boling was recently cited in State v. Martin, 233 Kan. 148, 150, 660 P.2d 563 (1983), where the court said:
“The purpose of K.S.A. 22-3603 is to permit appellate review of pretrial rulings which may be determinative of the case. State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977). See also State v. Boling, [citation omitted], which provides a thorough analysis of the statutory scheme and the difference between an order ‘suppressing’ evidence obtained in violation of constitutional rights and one ‘excluding’ evidence because of evidentiary rules.”
It is important to note that the precise jurisdictional issue presented in this case was not before the court in State v. Martin, which simply held that'K.S.A. 22-3603 does not permit the State to take an interlocutory appeal from a trial court’s order holding the State could not grant a witness immunity from prosecution for peijury. The opinion in Martin emphasizes the trial court had not entered an order suppressing or excluding evidence proffered by the State.
In discussing K.S.A. 22-3603, the court in Boling observed that the statute, by permitting review before trial, eliminates the double jeopardy problems arising where the State secures a reversal of a trial court’s evidentiary ruling, but only after trial and acquittal. It noted that the purpose of K.S.A. 22-3603 is described by the Judicial Council comment to the statute as follows:
“The foregoing sections are intended to permit Supreme Court review of trial court rulings on pretrial motions which may be determinative of the case. The committee believed that in the case of trial court rulings which suppress evidence essential to proof of a prima facie case, the prosecution should have an opportunity for review in the Supreme Court if a substantial question exists as to the correctness of the trial court’s decision.” (Emphasis supplied.)
The Judicial Council comment was relied upon by the court in upholding the constitutionality of K.S.A. 22-3603 in State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977).
The Boling opinion then turned to other sections of the Kansas Code of Criminal Procedure to find what an order “suppressing evidence” is. Those sections are K.S.A. 22-3215 which authorizes a pretrial motion to “suppress” a confession or admission, and K.S.A. 22-3216 which authorizes a pretrial motion to “suppress” illegally seized evidence. The Boling court concluded that these two statutes together with K.S.A. 22-3603 provide an integrated statutory scheme for dealing with important — indeed essential — evidentiary rulings on issues having constitutional dimensions. However, the court stated that the scheme does not envision an interlocutory appeal.on every run-of-the-mill evidentiary ruling against the State, even though made before trial.
Boling relied primarily upon an Illinois case, People v. Van De Rostyne, 63 Ill. 2d 364, 349 N.E.2d 16 (1976), as the basis for recognizing a distinction between evidence suppressed on constitutional grounds and evidence excluded on evidentiary grounds. The Illinois Supreme Court in that case held that an interlocutory appeal by the State was to be allowed only when the order excluding evidence was based on the involuntariness of a confession or the illegality of a search and seizure. At the time Boling was handed down, the Court of Appeals did not have the benefit of People v. Young, 82 Ill. 2d 234, 412 N.E.2d 501 (1980), where the Illinois Supreme Court rejected the narrow interpretation of Van De Rostyne and held that the State may appeal from a pretrial suppression order which substantially impairs its ability to prosecute the case involved. Young, therefore, held that the term “suppressed evidence” was to have a broader meaning than evidence which is illegally obtained. Thus the Illinois courts today do not apply the “constitutional/evidentiary distinction” between pretrial orders as made in Van De Rostyne and by the Kansas Court of Appeals in Boling.
As noted in Boling, in Kansas we have at least three cases which would indicate that the broader interpretation of the term “suppressing evidence” in K.S.A. 22-3603 prevails here. In State v. Dotson, 222 Kan. 487, 565 P.2d 261 (1977), this court, without mention of the jurisdictional question, entertained an interlocutory appeal by the State from a pretrial order suppressing an out-of-court identification. In State v. Eubanks, 2 Kan. App. 2d 262, 577 P.2d 1208, rev. denied 225 Kan. 846 (1978), the Court of Appeals, again without mention of the jurisdictional question, entertained an interlocutory appeal by the State from an order suppressing the testimony of a police officer who could not produce his field notes. A third case is State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976), which held in an interlocutory appeal by the State that the district court did not abuse its discretion under the circumstances of the case by conditionally striking the testimony of two prosecution witnesses, the State having lost the written statements of the witnesses and thus being unable to produce them when ordered to do so pursuant to K.S.A. 22-3213(2). We also note State v. Williams, 4 Kan. App. 2d 651, 610 P.2d 111 (1980), which determined an interlocutory appeal by the State pursuant to K.S.A. 22-3603 from the order of a district court suppressing the results of a blood test.
The Court of Appeals in its unpublished opinion in this case stated as follows:
“This case demonstrates the desirability of allowing interlocutory appeal by the State in situations in which such an appeal is not currently available. In cases such as this where the evidence excluded may have been determinative of the case (see State v. Burnett, 222 Kan. 162, 563 P.2d 451 [1977]), and where the State’s admissible evidence is so depleted that the State cannot in good conscience continue prosecution, some opportunity to appeal should be available. However, as we understand K.S.A. 22-3603 and cases decided under that statute, no such relief is currently authorized. We therefore dismiss for lack of jurisdiction."
We have concluded that the narrow interpretation of the term “suppressing evidence” in K.S.A. 22-3603 set forth in Boling should be rejected and should not be followed in this state. We hold that the term “suppressing evidence” as used in that statute is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only “constitutional suppression” but also rulings of a trial court which exclude State’s evidence so as to substantially impair the State’s ability to prosecute the case. This was the rule adopted by the Supreme Court of Illinois in People v. Young.
This broader interpretation is also consistent with the standards relating to criminal appeals adopted by the American Bar Association Project on Standards for Criminal Justice. Standards Relating to Criminal Appeals § 1.4 (1970), provides in part as follows:
“1.4 Prosecution appeals.
“(a) The prosecution should be permitted to appeal in the following situations:
“(i) from judgments dismissing an indictment or information on substantive grounds, such as the unconstitutionality of the statute under which the charge was brought, or for failure of the charging instrument to state an offense under the statute;
“(ii) from other pretrial orders that terminate the prosecution, such as upholding the defenses of double jeopardy, autrefois convict, autrefois acquit, or denial of speedy trial;
“(in) from, pretrial orders that seriously impede, although they do not techni catty foreclose, prosecution, such as orders granting pretrial motions to suppress evidence or pretrial motions to have confessions declared involuntary and inadmissible.
Such judgments are likely to rest upon principles that ought to be clearly and uniformly applied throughout the state.” (Emphasis supplied.) pp. 8-9.
We are convinced that this broad interpretation of K.S.A. 22-3603 is consistent with the stated purpose of that section as expressed by the Judicial Council comment at the time it was adopted — that the section is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case. We wish to emphasize, however, that the appellate courts of Kansas should not take jurisdiction of the prosecution’s interlocutory appeal from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved. Interlocutory appeals are to be permitted only where the pretrial order suppressing or excluding evidence places the State in a position where its ability to prosecute the case is substantially impaired.
In order to carry out this purpose of permitting interlocutory appeals by the State only in the cases referred to, the prosecutor should be prepared to make a showing to the appellate court that the pretrial order of the district court appealed from substantially impairs the State’s ability to prosecute the case. Such a showing may be required either on order of the appellate court or when appellate jurisdiction of the interlocutory appeal is challenged by the defendant-appellee. Rased upon the reasoning set forth above, we take jurisdiction of the State’s interlocutory appeal in this case and will proceed to determine those issues which we find fall into the category of trial rulings which substantially impair the State’s ability to prosecute the case.
The first issue to be determined is whether the trial court erred in holding that the proffered testimony of defendant’s wife, Catherine Newman, was inadmissible at trial, because such testimony was privileged under K.S.A. 60-423(b) and 60-428(c) of the Kansas Code of Civil Procedure which is applicable in criminal proceedings. At the preliminary hearing, the State advised the court that the wife’s testimony would be in substance as follows: That on the night the Good Times Club burned down, Catherine Newman was awakened by her husband, the defendant; that he left home, then returned and got a crowbar, and left again. That they drove in their car near the Good Times Club and saw that it was on fire. After they returned to their home, she saw her husband unloading stereo speakers including those taken from the Good Times Club. Later, she and defendant went to Hutchinson where she was present when certain conversations took place between her husband and John Palmer in regard to the purchase of the stereo components. She observed her husband sell the same to Tom Mule. She and her husband then returned to their home at Great Bend. The trial court suppressed this evidence in its entirety, holding that the marital privilege applied.
It should be noted that this evidence falls into three categories:
(1) Conversations in private between Catherine and defendant;
(2) acts of the defendant in handling the stereo components and their observation of the burning of the Good Times Club;
(3) conversations and acts of defendant which were a part of the negotiations and sale of the stereo components at Hutchinson in the presence of third persons. In the trial court, the State did not offer to have Catherine Newman testify as to her conversations with defendant when they were alone. The proffered testimony concerned only the acts of defendant observed by Catherine Newman and the transaction, including defendant’s conversations and acts, having to do with the purchase and sale of the speakers in Hutchinson by and to third persons.
The trial court suppressed the State’s proffered testimony on the basis of K.S.A. 60-423(fe) and K.S.A. 60-428(a), holding that all of defendant’s acts and conversations constituted privileged confidential communications within the statutory provisions.
K.S.A. 60-423(b) provides:
“(b) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse.” (Emphasis supplied.)
K.S.A. 60-428(a) provides:
“(a) General rule. Subject to K.S.A. 60-437 and except as otherwise provided in subsections (b) and (c) of this section, a spouse who transmitted, to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife. The other spouse or either his or her guardian or conservator may claim the privilege on behalf of the spouse having the privilege.” (Emphasis supplied.)
We will first consider the admissibility of the wife’s testimony as to defendant’s conversations and actions in Hutchinson where third parties were present. This testimony of Catherine Newman was clearly admissible under this court’s decision in State v. Glover, 219 Kan. 54, 547 P.2d 351 (1976), which held that a communication between a husband and wife in the presence of or overheard by a third person is not within the protection of the privilege granted by K.S.A. 60-423(h). In Glover the court stated:
“The general rule concerning confidentiality is stated in 81 Am. Jur. 2d, Witnesses, § 155, in these words:
“‘. . . [T]he broad general rule followed by nearly all of the courts is that a conversation, communication, or transaction between husband and wife, or a statement made by one to the other, in the presence of or overheard by a third person is not within the protection of the privileged communications rule. . . .’ (p. 194.)
“See, also 97 C.J.S., Witnesses, § 268, pp. 766-768. In Vol. VIII Wigmore, Evidence in Trials at Common Law, [Revised by McNaughton], § 2336, pp. 650-651, the author succinctly states:
“ ‘. . . Commonly, the presence of a third person within hearing will negative a marital confidence; so, too, the intended transmission of the communication to a third person. . . .’
“While State v. Gray, 55 Kan. 135, 39 Pac. 1050, was decided many years before the enactment of 60-423(£>), the holding therein accords with the authorities mentioned and the import of the statute as we read it. In the Gray opinion it is stated:
“ . . Communications between husband and wife are not confidential when made in the presence of third parties. . . .
“ ‘. . . Whatever is said in the presence and hearing of third persons has none of the characteristics or attributes of a confidential communication. There is no secrecy about it. It is then published to the witnesses, who are in no sense parties to the conjugal relation. . . .’ (pp. 143-144.)” p. 58.
Based upon Glover, we have no hesitancy in holding that whatever communications occurred in this case while a third person was present are not confidential communications pro tected by the statutory marital privilege. The trial court thus erred by excluding that portion of the proffered testimony of Catherine Newman.
The next question is whether Catherine Newman’s observations of defendant’s actions, as distinguished from his words, constitute protected confidential communications under the marital privilege. In other words, is a spouse’s act a communication within the meaning of the statutory provision? We think it clear that certain acts consisting of gestures or signs or body movements may constitute a privileged communication. Thus, there may be types of nonverbal communications which should properly be considered as communications within the meaning of the statute. The issue we have presented here, however, is whether a wife’s observation of her husband’s actions in taking possession of and handling stolen property would constitute a communication within the marital privilege.
This is a novel question which has not heretofore been presented to the Kansas appellate courts. Simply stated, the question is this: Is the marital privilege limited to information directly and intentionally conveyed by words, oral or written, or does it include information derived by one spouse from observations of the acts of the other? At the outset, we must recognize that there is a great deal of conflict in the decisions of various courts throughout the United States as to the admissibility of a spouse’s testimony as to his or her observation of particular acts of the husband or wife. The present weight of authority in the United States is on the side of including observations of a spouse’s acts as being within the scope of confidential marital communications. There is an extensive annotation on this subject in 10 A.L.R.2d 1389, where many cases on both sides of the issue are discussed. The general rule is also recognized and cases are set forth in 81 Am. Jur. 2d, Witnesses §§ 161 through 166.
We note, however, that the modern trend of the cases and the preponderance of the learned treatises written on the subject are against such a broad and liberal interpretation of the marital privilege. 8 Wigmore on Evidence § 2337 (McNaughton Rev. 1961), observes:
“§2337. Communications, not noncommunicative acts. The privilege has for its object the security from apprehension of disclosure — a security in consequence of which confidences will be freely given and not withheld. The protection therefore extends only to communications, not to acts which are in no way communications. The reasoning is analogous to that which establishes a similar limitation for communications between attorney and client ....
“Nevertheless, the statutes in some jurisdictions extend the privilege to knowledge of any fact acquired in the marital relation. There is at first sight some plausibility in this extension. The confidence, it may be argued, which the husband or wife desires, and the freedom from apprehension which the privilege is designed to secure, must be supposed to be equally desirable for noncommunicative conduct as for communications.
“The difficulty with this argument is that it goes too far. The rationale of the privilege is clearly inapplicable to a case, for example, where the wife, unknown to the husband, observes him disposing of a dead body in the outhouse. Since the husband did not take the wife into his confidence, it would be nonsense for the tribunal to deprive itself of the wife’s evidence on the ground that compulsory disclosure in such cases would discourage marital confidence.” p. 657.
McCormick on Evidence § 79, p. 165 (2d ed. 1972) urges similar restriction of the marital privilege on the basis that extensions beyond verbal or written communications are unjustified. The authorities and the cases which take the position that observed acts should not be included within the privilege do so on the basis that public policy favors such a restrictive construction of the privilege, since observations of criminal actions are not the type of communication contemplated by the privilege of confidential communication as being in the public interest to preserve a well-ordered, civilized society by preserving the peace and harmony of a family. See for example Kerlin v. State, 352 So. 2d 45 (Fla. 1977).
A reason for the wide variation in the rules applied in the various jurisdictions is that the rules of evidence of some states are based upon common law court decisions, and also because the statutory language may vary from state to state. Some of the state statutes expressly include observed acts as well as communications within the scope of the marital privilege.
The task presented to us in this case is to interpret the Kansas statutes in a manner consistent with what we find to be the intention of the framers of the Kansas Code of Civil Procedure and in a way most beneficial to the people of this state. In K.S.A. 60-407, the general principle of law is adopted that all relevant evidence is admissible unless there is a specific statute excluding some particular type of evidence. K.S.A. 60-407 states, without equivocation, that, except as otherwise provided by statute, every person is qualified to be a witness; no person has a privilege to refuse to be a witness; no person is disqualified to testify to any matter; no person has a privilege to refuse to disclose any matter or to produce any object or writing; and no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing. It is thus the philosophy of the Kansas Code of Civil Procedure that relevant evidence is admissible unless some public policy expressed by statute excludes it.
It should be noted that K.S.A. 60-428(a) states that a spouse, who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship. This language is important. It emphasizes that to have a communication there must be a transmission of information. It is difficult to see how the term “communication” could logically mean anything else. This same concept of the term “communication” is contained in the other privilege sections of the Kansas code. K.S.A. 60-426(c)(2) defines a communication between an attorney and client as including advice given by the lawyer in the course of representing the client and includes disclosures of the client. Clearly a communication here means a transmission of information between the attorney and the client.
K.S.A. 60-427(a)(4) defines a confidential communication between physician and patient as meaning such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence. K.S.A. 60-429(c)(5) states that “penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations.
Considering these various sections of the Kansas code and the public interest involved, we have concluded that the statutory marital privilege between husband and wife does not extend to all observations of the acts of one spouse by the other. The marital privilege is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to the other. We bold that the trial court erred in suppressing the State’s proffered testimony of Catherine Newman as to her observation of the actions of the defendant in handling the stereo components and his actions in Hutchinson at the time the sale of the stereo components was negotiated and consummated.
The State also appeals the order of the district court suppressing all of the evidence in the case, including tangible evidence and the proffered testimony of witnesses, which was developed as the result of statements made by Catherine Newman to the investigating officers and to the county attorney. The record discloses that on February 2, 1982, approximately three weeks after the fire at the Good Times Club, defendant’s wife gave a statement under oath before the Honorable Don Alvord, district magistrate of Barton County. At that time, Catherine Newman was interrogated by Officer Teel of the sheriff s office and by the assistant county attorney. This transcribed statement shows that Mrs. Newman was given the Miranda warnings and was fully advised as to her constitutional rights. In this statement, Mrs. Newman told of her husband’s actions on the night of the fire, including his handling of the stereo equipment mentioned above, and also about certain communications with her husband on that evening. She also testified as to the transaction between her husband and third persons in connection with the negotiation and sale of the stereo equipment to a buyer in Hutchinson.
Defendant moved to suppress not only the testimony of Catherine Newman but also the testimony of all witnesses and tangible evidence subsequently uncovered by the investigating officers as a result of the statement given by Catherine Newman mentioned above. It was the contention of defendant that all of this evidence was inadmissible, because the testimony of Cath-, erine Newman was privileged by reason of K.S.A. 60-423(h) and 60-428(c), and all of the evidence and testimony later obtained was the “fruit of the poisonous tree” resulting from the violation of the marital privilege. The district court sustained the motion on that basis. The issue presented requires us to consider the nature and purpose of the “fruit of the poisonous tree” doctrine.
In State v. McBarron, 224 Kan. 710, 714, 585 P.2d 1041 (1978), the court noted:
“The fruit of the poisonous tree doctrine is one facet of the exclusionary rule of evidence, which bars the admissibility in a criminal prosecution of evidence obtained in the course of unlawful searches and seizures. In that context, the fruit of the poisonous tree doctrine is held to extend the scope of the exclusionary rule to bar not only evidence directly seized but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search. When applicable, the fruit of the poisonous tree doctrine bars not only derivative physical evidence, but also derivative testimonial evidence, such as confessions and admissions obtained as a result of confronting the accused with information learned in an unlawful search, and the testimony of witnesses discovered as a result of an unlawful search. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920); Nardone v. United States, 308 U.S. 338, 84 L.Ed. 307, 60 S.Ct. 266 (1939). The doctrine of the fruit of the poisonous tree was considered in State v. Deffenbaugh, 216 Kan. 593, 533 P.2d 1328 (1975) and in State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977).”
The initial question usually presented in cases where the fruit of the poisonous tree doctrine is invoked is whether the proffered evidence came into police hands as a result of unlawful police conduct. It is stated that the purpose of the doctrine is to prevent the State from using, in any manner prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of its agents and to deter illegal and unconstitutional actions on the part of the police. Although we have no Kansas cases on the subject, there are a number of cases throughout the country holding that, where there has been no unlawful police conduct, the reason for the rule fails and, therefore, the fruit of the poisonous tree doctrine should not be applied.
In Clark v. State, 159 Tenn. 507, 19 S.W.2d 228 (1929), the defendant’s wife gave statements to certain officers in regard to the defendant’s actions. Based upon this information, the officers made further investigation and obtained evidence of third parties on the basis of which the defendant husband was convicted. ' It was contended by defendant that, since the wife disclosed information in violation of the marital privilege, information and testimony resulting from her disclosure were incompetent. The Supreme Court of Tennessee rejected this contention. The court conceded that the wife would have been an incompetent witness against her husband as to these matters. There was no rule of law, however, which prevented a third person from instituting criminal proceedings based on facts learned through information given by the wife of the accused. The same rule was followed in Quinn v. State, 55 Okla. Crim. 116, 25 P.2d 711 (1933), which held, under similar factual circumstances, that facts which have been discovered by a competent witness are not to be excluded because the witness may have been put on track of them by information coming from the defendant or his wife. In State v. O’Bremski, 70 Wash. 2d 425, 423 P.2d 530 (1967), the Supreme Court of Washington noted that the exclusionary rule is neither a statutory enactment nor an express provision of the Fourth Amendment to the United States Constitution. It is rather a command, judicially implied, intended to impose restraints upon law enforcement officers and to discourage abuse of authority when constitutional immunity from unreasonable search is involved, citing Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961). It noted that in each case the rights of the accused must be balanced against the rights of the public.
In a later case, State v. Osborne, 18 Wash. App. 318, 569 P.2d 1176 (1977), the Washington court held that the fruit of the poisonous tree doctrine does not apply to bar the admission of evidence derived from facts obtained from the wife that would not have been admissible at the trial under the marital privilege. A recent case holding to the same effect is Bishop v. State, 582 S.W.2d 86 (Tenn. Crim. App. 1979).
We have concluded that the trial court erred in suppressing the tangible evidence and the testimony of witnesses who were discovered by police investigation as a result of the statement given by Catherine Newman before the magistrate in Barton County. There is no contention, nor is there any evidence whatsoever in the record showing that the statement given by Catherine Newman was involuntary or obtained in any manner in violation of her constitutional rights. As discussed above, under the statutory marital privilege the defendant husband had the right to prevent his wife from testifying at the trial as to confidential communications between them. That privilege, however, does not bar the testimony of other witnesses discovered as the result of information lawfully obtained from defendant’s wife. We hold that the fruit of the poisonous tree doctrine is not applicable in the absence of a showing of police misconduct. The trial court thus erred in excluding the State’s proffered evidence.
The State also appealed initially from the order of the trial court excluding the testimony of witnesses concerning a prior burglary in Russell County in which defendant was charged and. tried but found not guilty. The State in oral argument conceded that trial court discretionary rulings are not a proper subject for an interlocutory appeal by the State. We assume that, when the issue is presented at the trial in this case, the trial court, on the basis of the evidence then before it, will reconsider the matter and exercise its discretion.
For the reasons set forth above, the judgment of the Court of Appeals dismissing the State’s interlocutory appeal is reversed. The judgment of the district court is reversed and the case is remanded to the district court for trial or further proceedings. | [
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The opinion of the court was delivered by
Miller, J.:
Do the appellate courts have jurisdiction to hear this appeal? The Court of Appeals dismissed for want of jurisdiction and we granted review. The jurisdictional question is the only issue we will decide in this case.
On February 23, 1987, the district court of Thomas County entered judgment against the Urbans, defendants and now appellants. The attorney who represented the Urbans at trial notified them of the judgment, and also declined to represent them on any appeal. On March 23, 1987, 28 days after the entry of judgment, the trial judge granted the defendants an additional 30 days to take their appeal. The ruling was made during a conference call between the judge and counsel for both plaintiffs and defendants, and was journalized on the same day. At that time, the Urbans were snowbound in their rural home, and had been unable to secure counsel to take their appeal. Within the 30-day extension, the Urbans secured new counsel and on April 22, 1987, filed their notice of appeal. On July 16, after notice, the Court of Appeals dismissed the appeal for lack of jurisdiction.
Appeals are governed by K.S.A. 60-2103(a), which reads in part as follows:
“60-2103. Appellate procedure, (a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.
“A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal.”
Here, there was no motion to amend or make additional findings of fact or to alter or amend the judgment, nor was there a motion for new trial; thus, the running of the time for appeal was not terminated by the timely filing of such a motion. The Urbans were aware that judgment had been entered.
Extensions of time are ordinarily governed by K.S.A. 60-206(b), which reads as follows:
“(b) Enlargement. When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge’s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under K.S.A. 60-250(b), 60-252(b), 60-259(b), (d) and (e) and 60-260(b) except to the extent and under the conditions stated in them.”
In Stanton v. KCC, 2 Kan. App. 2d 228, 577 P.2d 367, rev. denied 225 Kan. 845 (1978), the Court of Appeals held that K.S.A. 60-2103(a), having been enacted subsequent to K.S.A. 60-206(b), and being a statute which deals specifically with appellate procedure, takes precedence and limits the power of the trial court to grant extensions of time to take an appeal except where there is a showing of excusable neglect based on a failure of a party to learn of an entry of judgment. The Court of Appeals dismissed the appeal, and we denied the petition for review.
Stanton is distinguishable from the case at bar. The party seeking to appeal in Stanton did not request an extension of time within the 30-day period fixed by K.S.A. 60-2103(a), nor did the trial court grant an extension within that time. Thus, in Stanton, the party who wanted to appeal was at the mercy of the trial court to grant an extension. In the present case, motion was made for an extension within the 30 days for appeal, and had the extension been denied, a notice of appeal could have been filed within the statutory 30 days. In the present case, application for an extension was made within the 30-day period, the extension was granted, the appellants relied upon the ruling of the trial judge granting that extension, and the notice of appeal was filed within the extension granted.
At the time the United States Supreme Court decided the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962), Fed. R. Civ. Proc. 73(a) was in effect. See 12 Wright & Miller, Federal Practice and Procedure: Civil 2d § 3072 n.1 (1973). That rule permitted an extension of time for taking an appeal only “upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment,” language identical to that of our K.S.A. 60-2103(a). The facts in Harris were that within the 30-day time for taking an appeal counsel moved for an additional fourteen days, the extension was granted by the trial court, and the notice of appeal was filed on the fourteenth day but after the expiration of the 30-day statutory period. The Court of Appeals for the 7th Circuit dismissed the appeal. The United States Supreme Court reversed, stating:
“In view of the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect’ prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge’s ruling.” 371 U.S. at 217.
The unique circumstances doctrine is discussed in 4A Wright and Miller, Federal Practice and Procedure: Civil 2d § 1168 (1987), as follows:
“When employed in the context of an untimely appeal, the unique circumstances concept is based on a theory similar to estoppel. The Supreme Court seems to have concluded that a party ought not be denied an opportunity to appeal because of his failure to file a timely appeal when that failure resulted from reliance on action taken by the district court that generated a reasonable belief that an appeal could be initiated at a later date.” (pp. 501-02.)
The District of Columbia Court of Appeals clearly and concisely explained the unique circumstances doctrine in Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1406 n.25 (D.C. Cir. 1983):
“Courts long have permitted parties to maintain otherwise untimely appeals in ‘unique circumstances’ — those in which the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period, provided that the court’s action occurs prior to expiration of the official period and that the appellant files a notice of appeal before expiration of the period apparently judicially extended.”
In Tobin Constr. Co. v. Kemp, 239 Kan. 430, 721 P.2d 278 (1986), we considered, but found inapplicable under the facts of that case, the unique circumstances doctrine. In Tobin, judgment for plaintiff was entered in the district court. The plaintiff, dissatisfied with the award, prepared and served a motion to alter or amend judgment. The motion was left in the trial judge’s office late on the evening of the tenth day. The trial judge was out of town and did not actually see or know of the motion for several days thereafter. We held that the motion was not timely filed, because of the procedure employed, and thus Tobin’s cross-appeal was out of time. We considered the unique circumstances doctrine stated in Harris, but we determined that the facts in Tobin did not come within that doctrine.
Here, the Urbans requested an extension of time prior to the expiration of the original statutory period. The trial court, apparently not knowing it was without authority to do so, granted an extension of time. The Urbans relied in good faith upon the trial court’s action extending the appeal period, and they filed their notice of appeal within the extension of time granted by the trial court. Had the trial court denied the motion, counsel for the Urbans could have filed a timely notice of appeal.
The 10th Circuit recognized and applied the unique circumstances doctrine in Stauber v. Kieser, 810 F.2d 1 (10th Cir. 1982), wherein the plaintiff had relied upon the district court’s improper granting of an extension of time to file a motion to alter or amend the judgment. The 10th Circuit stated:
“In these ‘unique circumstances,’ it would now work a great hardship on plaintiffs to dismiss the appeal as untimely. . . . The court is of the opinion that to do so would not be in the best interests of justice.” 810 F.2d at 1-2.
Here, the purported extension was for a reasonable period of time, 30 days, the same length of time as the appeal time fixed by statute. Under the facts of this case, we conclude that we should apply the doctrine of unique circumstances.
The judgment of the Court of Appeals is reversed, and the case is remanded to that court with directions to reinstate the appeal and determine the matter on its merits. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal of a civil action wherein R. B. Enterprises, Inc., unsuccessfully challenged the constitutionality ofK.S.A. 1986 Supp. 8-116a(b). The defendant State of Kansas cross-appeals the district court’s denial of its motion for judgment of involuntary dismissal and its motion for the imposition of stenographic costs on R. B. pursuant to K.S.A. 60-2002(a) and 60-2003(5).
This dispute arose from the following facts. R. B. Enterprises, Inc., is a used car dealership located solely in Kansas. Seventy-five percent of the cars R. B. purchases for resale come from outside the State of Kansas. It sells approximately 60% of these cars in its retail operation in Manhattan. The other 40% of its cars are sold wholesale, often through auctions in other states.
When R. B. sells a car which has a Kansas title, it merely endorses the title over to the purchaser. When it buys a car in Colorado, however, the transaction is more complex. A Colorado title provides only one space for assignment. Dealers which have aplace of business in Colorado may attach an affidavit and make a reassignment; out-of-state dealers are not authorized to do this. It is therefore difficult for R. B., a Kansas dealer, to sell used cars purchased in Colorado because, in transferring the title to itself, it uses the only available assignment space on the title. R. B. is thus forced to apply for a Kansas title. To obtain a Kansas title, R. B. must comply with K.S.A. 1986 Supp. 8-116a(b). This statute provides a used car titled in another jurisdiction must be inspected before a Kansas title will be issued. Thus R. B. must bring the car to Kansas for inspection even if it is going to resell the car in another state.
R. B. buys many of its cars from auctions around the country, especially in Colorado, Texas, Oklahoma, and Missouri, but complains only of problems in Colorado. There is no evidence other states do not allow multiple assignments on their titles. Kansas allows two reassignments by dealers. K.S.A. 1986 Supp. 8-135(c)(2).
Let us look at the history of Kansas vehicle inspection laws. The forerunner of K.S.A. 1986 Supp. 8-116a is found at K.S.A. 8-1750 et seq. (repealed L. 1984, Ch. 35, § 6). This act required the inspection of used vehicles sought to be sold at retail or registered for the first time in Kansas. K.S.A. 8-1754(a). Although the inspection was primarily for safety purposes, K.S.A. 8-1753, vehicle identification numbers were checked and recorded in order to control stolen vehicles. The Superintendent of the Kansas Highway Patrol was given authority to accept inspections carried out by states with laws similar to Kansas. K.S.A. 8-1756.
In 1983, objections to the program caused the introduction of Senate Bill No. 288, which in its original form abolished routine inspections. The Kansas Department of Revenue and the Highway Patrol protested the abolition of inspections, expressing concern that Kansas would become a dumping ground for stolen vehicles if vehicles titled for the first time in Kansas were not required to be inspected for vehicle identification numbers. In response to the objections, a new section requiring such inspections was added to the bill before its enactment in March of 1984. L. 1984, ch. 35, § 5. Although this section was repealed by Senate Bill No. 591 in May of 1984, it was replaced by New Section 11(b), which was quite similar but added the $10 charge for inspections. L. 1984, ch. 25, §§ 11, 13. This new section is codified at K.S.A. 1984 Supp. 8-116a(b), and states in pertinent part:
“[A]ny person making application for any original Kansas title for a used vehicle which is, at the time of making application, titled in another jurisdiction, shall, as a condition precedent to obtaining any Kansas title, have such vehicle checked by the Kansas highway patrol for verification that the vehicle identification number shown on the foreign title is genuine and agrees with the identification number on the vehicle. The verification shall be made upon forms prescribed by the division of vehicles which shall contain such information as the secretary of revenue shall require by rules and regulations. A charge of $10 per hour, or part thereof, with a minimum charge of $10, shall be made for checks under this subsection.”
It was this statute R. B. sought to have held unconstitutional by the district court. By the time of triál, however, the statute had again been amended. K.S.A. 1986 Supp. 8-116a(b) provides as follows:
“[Ajny person making application for any original Kansas title for a used vehicle which is, at the time of making application, titled in another jurisdiction, shall, as a condition precedent to obtaining any Kansas title, have such vehicle checked by the Kansas highway patrol for verification that the vehicle identification number shown on the foreign title is genuine and agrees with the identification number on the vehicle. Checks under this section may include inspection for possible violation of K.S.A. 8-611 and amendments thereto or other evidence of possible fraud. The verification shall be made upon forms prescribed by the division of vehicles which shall contain such information as the secretary of revenue shall require by rules and regulations. A charge of $10 per hour or part thereof, with a minimum charge of $10, shall be made for checks under this subsection. When a vehicle is registered in another state, but is financed by a Kansas financial institution and is repossessed in another state and such vehicle will not be returned to Kansas, the check required by this subsection (b) shall not be required to obtain a valid Kansas title or registration.”
In spite of the amendment, R. B. did not seek to amend its petition to change the statute citation. The district court held the amended statute presented the same controversy as the 1984 law and treated the petition as if amended. It therefore held the State was incorrect in arguing that R. B.’s petition was moot.
The State argues the district court erred in denying its motion for involuntary dismissal because R. B. did not amend its petition. It argues even if the district court would have allowed an amendment to R. B.’s petition, it could not do so when R. B. failed to move for such an amendment. The State points out it timely advised the district court of the issue and did not impliedly consent to an amendment by failing to object at trial, K.S.A. 60-215(b). It contends the amendments were significant: the amended statute authorizes odometer checks and adds an exemption for financial institutions, issues which R. B. now raises in support of its appeal. See L. 1985, ch. 40, § 1; ch. 41, § 1.
The amendment to the statute did not affect the issue raised by R. B., leaving the same ultimate issue for resolution. We therefore agree with the trial court and treat the petition as if formally amended to include the amended statute citation.
Under K.S.A. 1986 Supp. 8-116a(b), an applicant for a new title in Kansas must produce the foreign title at the time of the vehicle inspection. This prevents the problem of “paper cars,” wherein worthless or nonexistent cars are titled and insured, then reported stolen to collect the insurance.
The inspections are carried out by the Kansas Highway Patrol or its designees as authorized by statute and take no more than 15 minutes. The inspectors match the vehicle identification number, shown on the foreign title, with the identification number on the vehicle to prevent “paper washing” of stolen cars. This is also prevented by checking the documents themselves for discrepancies or alterations. The vehicle identification number (VIN) plate is checked to ensure its authenticity, the odometer is checked to see that its numbers are properly aligned, and the general appearance of the car is compared with the mileage given on the odometer. A check is made to see if the car is listed as stolen, and it is noted if the vehicle is “gray market,” i.e., not manufactured for the United States market in compliance with Federal environmental safety standards.
The State contends there is good reason to single out foreign vehicles for inspection. Car theft, odometer fraud, and “paper car” scams are more likely to be perpetrated across state lines, both into and out of Kansas, because the confusion caused by their “paper trails” makes it less likely the original perpetrator will be ascertained. It is also likely “gray market” vehicles will be taken to Kansas to be titled because it is among the states which do not require proof of federal environmental safety standard compliance prior to titling. Thus, the State argues, vehicle inspection is a reasonable exercise of the police power of the State of Kansas.
R. B.’s sole contention on appeal is that K.S.A. 1986 Supp. 8-116a(b) violates the commerce clause, U. S. Const, art. I, § 8, clause 3. We begin our constitutional review of the statute by presuming it to be valid. We do not ask what the legislature should do but what it can do. Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976). Statutes not facially discriminatory which cause only incidental burden to interstate commerce are unconstitutional only if that burden is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc. 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970). There are three questions this court must ask in considering whether the challenged statute violates the commerce clause. Hughes v. Oklahoma, 441 U.S. 322, 336, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979).
The first question is whether the statute discriminates against interstate commerce either in its effect or on its face. The State contends the district court erred in denying its motion at the close of R. B.’s case for judgment of involuntary dismissal on the grounds K.S.A. 1986 Supp. 8-116a(b) does not restrain or burden interstate commerce. The court held the statute facially discriminatory because it is interstate commerce which gives rise to the operation of the statute, stating: “If one buys a used car in another state and brings it into Kansas, then he must comply with the inspection requirement of K.S.A. 8-116a prior to being able to obtain a certificate of title. If, however, one purchases a used vehicle in Kansas, no such requirement to have an inspection exists.” R. B. agrees, declaring the State has no interest in its sale of cars outside Kansas.
We agree with the district court that K.S.A. 1986 Supp. 8-116a(b) is facially discriminatory against out-of-state used vehicles for which Kansas titles are sought and is thus a burden on interstate commerce. This shifts the burden to the State to show the burden on interstate commerce is incidental to the purpose of the registration and is outweighed by the benefits derived from the inspections. Under the second prong of Hughes, we must determine whether these benefits serve a legitimate state purpose.
The State argues the district court and R. B. are confused in believing the State’s interest is in the sale of the cars; rather, the interest of the State is in the protection of the integrity of its title program. The State claims R. B.’s real complaint is that it cannot reassign the title to a used car under Colorado law without establishing a place of business within the state. The State of Kansas does not require R. B. to bring a vehicle back to Kansas for an inspection in order to sell it. It only requires an inspection when R. B. applies for a Kansas title. Such a title implies the State has approved the vehicle and its paperwork. The issuance of a Kansas title can obliterate or “wash away” title defects; states having a reputation for “easy washing” become dumping grounds for suspect vehicles and titles.
R. B. complains Kansas should make an exception for vehicles which, although granted Kansas title, are meant for out-of-state sale. But, a vehicle sold out of state may eventually come back into Kansas, and any problems with it or its paperwork are more easily caught at the beginning of its paper chain. There is also no way of ascertaining whether a particular vehicle is in fact intended for sale outside the State of Kansas. The State cannot track the progress of each vehicle after granting title. If vehicles represented as bound for other states were allowed to be titled without inspection, the law would be made ineffective.
The State further argues it does not require inspections for the purpose of burdening interstate commerce, but it does so to eliminate those situations where fraud or theft can easily be disguised. The legislature enacted a law to prevent the most obvious abuses. The statute does not apply, for example, to new vehicles, regardless of their origin. It does not apply to used cars simply because they cross the state line, but is applied only if the owner of such car wishes to change a foreign title to a Kansas title. K.S.A. 1986 Supp. 8-116a(b), K.S.A. 1986 Supp. 8-135(c)(9).
The State further points out the statute requires two other types of vehicles to be inspected, regardless of point of origin. These are reconstructed cars and non-highway to highway vehicles. K.S.A. 1986 Supp. 8-116a(a); K.S.A. 1986 Supp. 8-198(e). The State requires these vehicles to be inspected because, similar to out-of-state used cars, they present unique opportunities for criminal profit. See Senate Bill No. 591; L. 1984, ch. 25, § 10(e).
The State’s evidence was that the purpose of the statute is to prevent consumer fraud and that automobile theft and false titling of vehicles is a potent area for such illegal endeavors. We hold there is a legitimate state interest in preventing consumer fraud. We further hold the State met its burden of proof in showing K.S.A. 1986 Supp. 8-116a(b) effective in accomplishing the State’s purpose. Thus, we conclude the burden on interstate commerce created by the act is merely incidental to the reasonable exercise of Kansas police power in preventing theft and fraud.
R. B. nevertheless contends the statute is a protectionist measure which discriminates against out-of-state cars for no reason other than their origin, in violation of Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978). If this argument is correct, violation of the commerce clause has reached epidemic proportions.
The Uniform Vehicle Code and Model Traffic Ordinance requires inspection of vehicles previously registered in another state before a certificate of title is issued. Uniform Vehicle Code § 3-104(c) (1984 Supp.) At least a dozen states in this country have statutes requiring inspection of such vehicles before a title will be issued. See, e.g., Ala. Code § 32-8-35 (1975); Conn. Gen. Stat. § 14-171 (1985); Fla. Stat. § 319.23 (1985); Ky. Rev. Stat. Ann. § 186A.115 (Bobbs-Merrill 1986 Supp.); Minn. Stat. § 168A.04 (1986); Ohio Rev. Code Ann. § 4505.06 (Page 1986 Supp.); Or. Rev. Stat. § 803.210 (1987); R.I. Gen. Laws § 31-3.1-4 (1982); Tex. Stat. Ann. art. 6687-1 (Vernon 1987 Supp.); Wash. Rev. Code § 46.12.030 (1985); Wis. Stat. § 342.06 (1985-86); Wyo. Stat. § 31-2-103 (1987 Supp.).
R. B. further argues the statute is an improper revenue raising measure hidden under the guise of an exercise of the police power. It directs our attention to K.S.A. 1986 Supp. 8-116a(d), which provides if the highway patrol performs an inspection, the entire fee of $10 is deposited in the State general revenue fund. The statute provides no limitation to the use of these fees. If a designee performs the inspection, the designee keeps $9 and remits $1, which is also placed in the general revenue fund without limitation imposed on its use.
In Panhandle Eastern Pipe Line Co. v. Fadely, 183 Kan. 803, 806-08, 332 P.2d 568 (1958), we held a plan unconstitutional whereby the State general revenue fund received 20% of fees collected by the state corporation commission. This court held fees cannot be collected over the amount needed to defray the legitimate costs of a program affecting interstate commerce. The State argues Panhandle Eastern held reimbursement to a general fund was unconstitutional only if it was facially apparent that part of the funds were to be used for purposes other than the administration of the program or if remuneration was above the costs of the program. The State contends the statute shows no such facial purpose and points out the total costs of the program are not met by the fees imposed.
The State argues the issue is moot. Senate Bill No. 109, effective July 1, 1987, now provides that fees collected from the inspections shall be placed in a “vehicle identification number fee fund.” L. 1987, ch. 41, § 1(e).
The district court held the evidence clearly showed the cost of administering the inspection program is higher than the fees collected. Evidence was presented that in 1986, $270,000 was deposited in the state general fund from inspection fees. The evidence relied upon was that the inspection program cost the state $500,000 a year. Findings of fact by the district court which are supported by substantial competent evidence will not be disturbed by this court. See Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 243, 736 P.2d 882 (1987). We hold R. B.’s argument that the inspection law is a revenue measure is without merit for two reasons: It does not yield excess revenue over the cost of inspection, and the fees are not placed in the general fund.
The final prong of the Hughes test is whether the State’s interest could be equally well promoted by a means which does not discriminate against interstate commerce. R. B. points out an exception to the inspection requirement was made in 1985 for Kansas financial institutions. This exception now allows a Kansas financial institution to acquire Kansas title to a vehicle it finances without inspection when the vehicle is registered in another state, repossessed in another state, and not returned to Kansas. K.S.A. 1986 Supp. 8-116a(b).
The State argues a thief is less likely to need the services of a financial institution in order to obtain a car, or that having a financial institution involved makes criminal behavior less likely to occur because of the institution’s careful inspection of its debtor.
The exemption, furthermore, applies only to vehicles registered in another state. The requirement of registration offers safeguards not present in situations where the vehicles are only assigned. Under Kansas law a vehicle cannot be registered unless the applicant presents acceptable evidence of ownership and applies for an original certificate of title. K.S.A. 1986 Supp. 8-135(c).
The decision by the legislature to create the exemption is analogous to the situation presented in Main v. Taylor, 477 U.S 131, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986), where the Court upheld a ban on importation of golden shiners, a kind of baitfish, although the State of Maine allowed importation of salmonids. Safeguards existed for the importation of salmonids which were not present for baitfish. The Court held the State may single out areas needing police protection while exempting areas adequately covered by other procedures. We so hold.
R. B. presents other examples which it contends proves the State failed to meet its burden of proving nondiscriminatory alternatives could not meet its objectives as well as the contested statute. R. B. suggests 15 U.S.C. § 1981 et seq. (1982) provides a system which detects odometer rollbacks with less impact on interstate commerce and less inconvenience to the consumer. It claims the State has alternative means for checking VIN errors and stolen vehicles which do not discriminate against interstate commerce because they apply to all vehicles titled in Kansas. The State’s evidence revealed that mandatory inspection of all vehicles upon which a title transfer is sought would be a better deterrent to fraud and theft than the inspection provided by statute, but such a program would not be cost-effective since most theft and fraud involves out-of-state vehicles.
We hold the State met its burden of showing there are no nondiscriminatory alternatives which can meet its objectives as well as the program provided by the statute. The district court so found with the support of substantial competent evidence. We will not disturb those findings on appeal. Holly Energy, Inc. v. Patrick, 239 Kan. 528, 722 P.2d 1073 (1986).
The final issue is the cross-appeal. The State argues the district court erred in denying its motion to determine the taxability of the costs of the depositions of State witnesses which were received in evidence. The State sought to impose upon R. R. the stenographer’s charge of $1,090 for transcription of the depositions. K.S.A. 60-2002(a) provides that costs shall be allowed to the party in whose favor judgment is rendered unless the district judge provides otherwise. K.S.A. 60-2003(5) allows stenographic charges for depositions which are used in evidence to be included in those costs.
The district court denied the motion in order to avoid a “chilling effect” on the litigation of bona fide constitutional claims. The State cites Betts v. General Motors Corp., 236 Kan. 108, 118-19, 689 P.2d 795 (1984), in support of its contention that concern with chilling effects is improper in application to non-extraordinary costs, i.e., those enumerated in K.S.A. 60-2003. In Betts this court held the district court did not abuse its discretion in refusing to allow the prevailing defendant an award of extraordinary expenses beyond those allowed under K.S.A. 60-2003. The State contends a “chilling effect” is avoided by not assessing extraordinary expenses against a losing party except in bad faith cases pursuant to K.S.A. 60-2007. Non-extraordinary costs do not have such a chilling effect, it argues, and the legislature should be considered to have so determined when it enacted the statutes allowing costs.
This court will review the taxing of costs by the district court only to determine whether there has been an abuse of discretion. Negley v. Massey Ferguson, Inc., 229 Kan. 465, 472-73, 625 P.2d 472 (1981). Only if this court finds no reasonable person would have denied the taxing of the costs to R. B. will the district court be found to have abused its discretion. See Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 459, 711 P.2d 1330 (1985). We find no abuse of discretion. All other issues raised were considered and determined not to merit further discussion.
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The opinion of the court was delivered by
Holmes, J.:
James J. Shehan appeals his convictions by a jury of one count of first-degree murder (K.S.A. 21-3401) and one count of aggravated burglary (K.S.A. 21-3716). We affirm the district court.
The principal issue on appeal is whether the district court committed reversible error in refusing to give a requested jury instruction on voluntary intoxication as set forth in PIK Crim. 2d 54.12. The facts will be stated only briefly as the details surrounding the heinous crimes are not necessary to determine the issues on appeal.
The body of Bernice Lawler, an elderly widow, was found on the morning of May 31, 1986, in her home in Overland Park. She had been brutally beaten to death and possibly raped. James J. Shehan and Christopher Chambers, a codefendant, were employees of a lawn service that regularly took care of Mrs. Lawler’s lawn. They had been at her house on May 30, 1986, working on her yard, and subsequently they were charged with the murder of Mrs. Lawler. The murder took place sometime between 5:15 p.m. on May 30, when the victim was last seen alive, and 10:15 a.m. the next morning, when neighbors discovered the body. Shehan and Chambers were given separate trials. There was considerable evidence linking appellant to the crimes. Appellant has contended from the outset that he had no knowledge of, and had nothing to do with, the death of Mrs. Lawler. He testified he and Chambers spent the entire night together drinking and fishing, and that they were not even in Johnson County the night the murder was committed.
The first point on appeal is that the trial court committed reversible error in not giving a requested instruction on voluntary intoxication pursuant to K.S.A. 21-3208(2). Shehan testified at trial that during the evening and nighttime hours of May 30 and early morning of May 31 he and Chambers had consumed substantial amounts of beer and whiskey and had shared two or three joints of marijuana, and that appellant had one “hit” of LSD. However, he also testified that he remembered everything that happened that night, describing their activities in minute detail, that he had nothing to do with the death of Mrs. Lawler, and that he was not in the area of her home that night. On cross-examination of the defendant the following exchange occurred:
“Q. (By Mr. Morrison) Mr. Shehan —
“A. Yes, sir.
“Q. —-you’re relying on the defense of voluntary intoxication, is that correct?
“A. I’m not relying on any defense, except the fact that I didn’t do it.
“Q. Well, so isn’t what you’re telling us that you didn’t do it and if they, you know, and aside from that you’re too drunk to remember, right? They don’t buy that?
“A. I remember everything that happened that night.”
At no time did the defendant ever contend that he was intoxicated, that he couldn’t remember what happened, or that he might have been confused about his activities and whereabouts on the night of the murder.
Appellant was charged with first-degree murder under both the theory of premeditated murder and the felony-murder rule, with the underlying felony to support the latter theory being aggravated burglary. It was asserted before the trial court, and is asserted here, that as both premeditated murder and aggravated burglary are specific intent crimes, appellant was entitled to have the jury instructed on voluntary intoxication. K.S.A. 21-3208(2) provides:
“(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
Appellant argues that even though he presented no evidence he was intoxicated and even though he denied any connection with the crimes, he was entitled to the requested instruction solely because he testified he and Chambers had ingested a substantial amount of liquor and drugs. The trial judge in denying the instruction stated:
“The motion to include the voluntary intoxication instruction on the part of the defense is considered and the same is denied. The Court’s view on that subject is that it would be an appropriate instruction under any circumstances in which the defendant admitted and there was before the jury evidence that the defendant was at the time and at the location where the crime is alleged to have occurred.
“In the instant case, number one, the defendant has testified that although he had consumed substantial quantities of beer, some bourbon, if I recall the testimony correctly, and I believe a couple of marijuana cigarettes, and a hit of LSD, the defendant’s testimony is that at all times during the night of May 30th and the early morning hours of May 31st, that he knew where he was, what he was doing and that he was not at 6916 Woodson, Overland Park, Johnson County, Kansas. It’s the Court’s view that only if the defendant denied —-I’m sorry, only if he admitted to being intoxicated and being on the premises that the consumption of alcohol would in any way, shape or form come into play.
“. . . [Yjou’ve got to be present where the accident occurs or where the crime is committed for the issue of intoxication to be of any significance. My view is that the — being in the presence of the crime scene would be a necessary condition precedent, and that’s the basis upon which the Court refuses the instruction.”
Although the court was correct in denying the instruction, we are of the opinion that the basis for the refusal was erroneous. The general rule in Kansas is that the trial court has a duty to instruct the jury on the law applicable to the theories of both the prosecution and the defendant as long as they are supported by competent evidence. State v. Farmer, 212 Kan. 163, 165, 510 P.2d 180 (1973).
No Kansas case has been located which prohibits a defendant from asserting an alibi defense as well as offering evidence of voluntary intoxication to negate an element of the crime charged. To the contrary, it has long been recognized that ordinarily a defendant in a criminal case may present and rely upon inconsistent defenses. In State v. Hunter, 241 Kan. 629, Syl. ¶ 7, 740 P.2d 559 (1987), the court held that a defendant is not precluded from asserting compulsion as a defense even though he denies commission of the crime. The court cited the general rule that inconsistent defenses are generally permissible in criminal prosecutions. The general rule that intoxication may be asserted even when the defendant relies upon an alibi is stated in 5 Am. Jur. Proof of Facts 2d (1987 Supp.), p. 28, as:
“[T]he defendant may deny the commission of the offense and submit evidence, such as alibi evidence, in support of such denial, while at the same time presenting evidence of intoxication sufficient to prevent the formation of the necessary intent.”
See People v. Hansma, 84 Mich. App. 138, 269 N.W.2d 504 (1978); and State v. Kills Small, 269 N.W.2d 771 (S.D. 1978). We agree that a defendant in a criminal case may rely upon voluntary intoxication to show a lack of specific intent even though he also relies upon other defenses which may be inconsistent therewith.
We conclude the trial court was in error in refusing the requested instruction on the basis that Shehan relied on the defense of alibi and contended he had nothing to do with the crime. However, where the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court. State v. Durst, 235 Kan. 62, 69, 678 P.2d 1126 (1984). Thus, even though the court erred in the basis for its ruling, if there was not sufficient evidence to submit the issue of intoxication to the jury, no instruction was required and there would be no reversible error.
The degree of proof necessary in Kansas to establish a submissible issue of voluntary intoxication was considered in the recent case of State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985). The court stated:
“Where the crime charged requires a specific intent, voluntary intoxication may be a defense and an instruction thereon is required where there is evidence to support that defense. State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, and whether he was drunk to such extent is a question for the trier of the facts to decide, under proper instructions. 21 Am. Jur. 2d, Criminal Law 8 155; State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985).” 238 Kan. at 360. (Emphasis added.)
In State v. Payton, 229 Kan. 106, 622 P.2d 651 (1981), the defendant argued on appeal that his requested instruction on voluntary intoxication was erroneously denied. This court reviewed the record for evidence of defendant’s intoxication to determine the propriety of the trial court’s ruling that the evidence was insufficient to warrant submission of the issue to the jury. The court concluded, “The evidence did not show the appellant was intoxicated to the extent that his ability to form the requisite intent was impaired.” 229 Kan. at 114.
There must be some evidence of intoxication upon which a jury might find that a defendant’s mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent to commit the crime. Here, although Shehan testified he and Chambers together disposed of a substantial quantity of liquor and drugs, there was no evidence that, as a result thereof, appellant was intoxicated or that his mental faculties were impaired. To the contrary, the evidence presented by the appellant, when viewed in the light most favorable to him, negates a showing of intoxication. We have carefully considered the authorities relied upon by appellant and find them readily distinguishable from this case. We hold that under the facts of this case there was not sufficient evidence to require the giving of the requested instruction and, therefore, no reversible error occurred.
Next, the appellant asserts that it was error for the court not to give instructions on the lesser included offenses of voluntary manslaughter and involuntary manslaughter even though they were not requested at trial. The court is under a duty to give instructions on a lesser included offense pursuant to K.S.A. 1986 Supp. 21-3107(3) only when there is evidence under which the defendant might reasonably be convicted of the lesser offense. State v. Pearson, 234 Kan. 906, Syl. ¶ 6, 678 P.2d 605 (1984). We have carefully reviewed the record and fail to find evidence which would require the court to give instructions on the lesser included offenses of manslaughter.
Finally, appellant contends it was error for the court to admit in evidence two allegedly gruesome photographs of the victim and a videotape of the crime scene. In State v. Yarrington, 238 Kan. 141, 708 P.2d 524 (1985), we held:
“The admissibility of photographic evidence lies within the discretion of the trial court, and its decision to admit such photographs must be accepted on appellate review absent a showing of an abuse of discretion.” Syl. ¶ 3.
“The law is well settled in this state that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. Following State v. Pearson, 234 Kan. 906, Syl. ¶ 5, 678 P.2d 605 (1984).” Syl. ¶ 4.
A review of the record in this case discloses no abuse of discretion in the admission of the photographs or videotape.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by First Federal Savings & Loan Association of Beloit (First Federal) from a summary judgment granted against it and in favor of InterFirst Bank Greenspoint, of Houston, Texas, (InterFirst) based upon First Federal’s dishonor of its letters of credit, and also from a summary judgment entered in favor of InterFirst on First Federal’s counterclaim alleging impairment of collateral. This case comes before us by transfer from the Court of Appeals. First Federal contends that the motion for summary judgment was not timely served; there were fact issues precluding the entry of summary judgment; the drafts issued upon the letters of credit were not in strict compliance with the terms of the letters; InterFirst made an election of remedies by filing a direct action in a Texas court; and InterFirst improperly released some 209,000 shares of Fuddruckers common stock held as collateral for the underlying loans, to the prejudice of First Federal.
The facts are complicated, and must be set out in some detail. First Federal, a Beloit, Kansas, savings and loan association, issued its Irrevocable Transferable Letter of Credit in the amount of $300,000, being No. 019, to InterFirst, a Texas state bank, on July 26,1983. The letter was directed to InterFirst Bank Greenspoint, and reads in part as follows:
“Gentlemen:
“We hereby establish our Irrevocable Transferable Letter of Credit # 019 in your favor at the request and for the account of Paul J. Chainey, Jr. and W. J. Kassuba personally at 12700 Northborough Drive, Suite 222, Houston, Texas, 77067, for a sum not exceeding in all U.S. dollars Three Hundred Thousand and no/100 (U.S. $300,000) available by your sight draft drawn on us and accompanied by a statement signed by an officer of InterFirst Bank — Greenspoint or its transferee or assignee which states that Paul J. Chainey, Jr. and W. J. Kassuba have not performed satisfactorily under the terms of a contract or obligation to that financial institution.
“All drafts so drawn must be marked ‘Drawn Under First Federal Savings and Loan Association of Beloit, Kansas, Letter of Credit No.0I9 dated July 26, 1983.’
“The original of the Letter of Credit must accompany all drawing.
“We hereby engage with you that all drafts drawn under and in compliance with the terms of this credit will be duly honored by us.”
InterFirst, on July 29, 1983, loaned $300,000 to Paul J. Chainey, Jr., and Walter J. Kassuba. The loan was secured by the letter of credit. Kassuba is not a party to this lawsuit as he was not successfully served in Kansas. A second Irrevocable Transferable Letter of Credit was similarly issued by First Federal to InterFirst in the amount of $100,000, being No. 022, on October 20, 1983. Once again, InterFirst loaned Chainey and Kassuba $100,000 which was secured by letter of credit No. 022.
Chainey and Kassuba did not pay InterFirst; InterFirst demanded payment on the letters of credit; First Federal refused to honor the letters of credit. This action followed.
First Federal was a federally chartered savings and loan association, and the majority of its stock was owned by First Kansas Holding Company (Holding Company). First Federal owned a subsidiary, First Kansas Service Corporation (Service Corp.), which maintained offices in Houston, Texas, and was involved in the mortgage brokerage service.
In March 1983, Chainey was employed as executive vice-president and managing officer of Service Corp., and he was so employed at the time the first letter of credit was issued. In September of 1983, he became vice-president of First Federal, and he resigned that position on September 24, 1984. He owned a 50% interest in the Holding Company, which in turn held 63% of the stock in First Federal. During this time, Chainey owed to First Federal $325,000, which debt was secured by a mortgage. Chainey, together with three other persons, Kassuba, Neil Niewald, and Cameron Douthitt, organized Texas Mortgage Resources (TMR). Chainey was an officer, director, and 25% owner of TMR, which was in the secondary mortgage brokerage business in Houston. TMR operated out of the same office as Service Corp., which was also in the mortgage brokerage business.
Neil Niewald was the president and managing officer and a director of First Federal until September 24, 1984. He also owned stock in the Holding Company which held 63% of the stock of First Federal, and he was one of the organizers, officers, and directors and a 25% owner of TMR. As president of First Federal, he issued both of the letters of credit described above.
The purpose of the loans from InterFirst to Chainey and Kassuba, secured by the letters of credit, was to provide working capital for TMR. Jerry Clark, a senior vice-president of Inter- First, made the loans. He was provided with the financial statements of both Chainey and Kassuba. Chainey’s financial statement revealed he was executive vice-president of Service Corp., as well as 50% owner of the Holding Company which held 63% of the stock of First Federal. Although Chainey and Kassuba executed their notes to InterFirst personally, and TMR was not a signatory thereof, Clark knew the purpose of the loans and knew that they were to be repaid by TMR. Refore making the loans, Clark called First Federal and spoke with the controller. The purpose of the call was to obtain a detailed financial statement from First Federal. Clark told the controller that his need for the financial statement of First Federal was related to a letter of credit to be issued by First Federal to InterFirst to secure Chainey’s indebtedness.
InterFirst made yet a third loan to Chainey and Kassuba on March 15, 1984, in the amount of $250,000. These funds were used to purchase a time certificate of deposit for TMR to satisfy Federal National Mortgage Association requirements. A promissory note for the $250,000 was executed by Chainey and Kassuba. That note was not secured by a new letter of credit, but by the two earlier letters by cross-collateralization. Roth the loan application and the security agreement stated that the collateral to secure the loan would be 45,000 shares of Fuddruckers stock. The loan application recited: “We don’t have and will not have stock cert.’s.” Chainey gave InterFirst a Voting Trust Certificate No. 17, dated February 20, 1984, for 209,905 shares of Fuddruckers stock. Chainey further executed in blank an irrevocable stock power and a Federal Reserve Form U-l, which set forth the security interest in 45,000 shares of Fuddruckers stock. Inter-First notified the trustee of the Voting Trust of its possession of the Voting Trust Certificate, and a few days later by separate letter asked that the trustee accept the letter as InterFirst’s notification of assignment of 45,000 shares of Fuddruckers, Inc., common stock by Paul Chainey, Jr. The trustee of the Voting Trust acknowledged in writing the assignment of 45,000 shares of Fuddruckers stock to InterFirst. When the original loans of $300,000 and $100,000 simultaneously matured, a new loan application was submitted and approved, and a new promissory note for $400,000 was executed by Chainey and Kassuba. The letters of credit were given as collateral for the renewed loan. The new note required monthly interest payments and quarterly principal payments. The $250,000 note matured: Chainey and Kassuba made a $25,000 principal reduction, and the note was renewed in the amount of $225,000. There was no change in collateral for the renewal note.
Only interest was paid on the $225,000 note, making it current up to November 15, 1984. On the $400,000 note, a principal payment of $20,000 was made and interest was paid to October 15, 1985. Nothing further was paid on the notes.
On January 25, 1985, sight drafts, letters, and the original letters of credit were prepared by InterFirst for presentation to First Federal. On January 28, 1985, First Federal acknowledged receipt of the same. A signed statement by a vice-president of InterFirst, accompanying the sight drafts, recited that Chainey and Kassuba had “not performed satisfactorily under the terms of a contract or obligation to InterFirst.” Also on January 28, 1985, InterFirst made demand upon Chainey and Kassuba for payment on the $400,000 and the $225,000 notes. On February 25, 1985, InterFirst commenced this action in the District Court of Mitchell County, Kansas. On April 24, 1985, InterFirst filed an action against both Chainey and Kassuba in the District Court of Harris County, Texas, seeking recovery on the two outstanding promissory notes. In September 1985, InterFirst sold the 45,000 shares of Fuddruckers stock for $275,000. The $225,000 note plus accrued interest was paid, and the balance of over $25,000 was placed in a certificate of deposit. When it matured, the principal and interest were applied to the $400,000 note.
The first issue concerns the timeliness of the motion for summary judgment. First Federal contends that notice was not received ten days before the motion was set for hearing as required by K.S.A. 1986 Supp. 60-256(c). The records disclose that in November 1985, InterFirst filed a motion for summary judgment. That motion was denied, but the trial court stated that the issues presented in the motion for summary judgment “may be re-presented or re-instituted at the Pretrial Conference.” A second motion for summary judgment was filed by InterFirst on June 5, 1986, and noticed for hearing at the pretrial conference on June 12. The second motion contained the same request for judgment on the letters of credit, on the same grounds urged in the earlier motion, and additionally sought summary judgment on First Federal’s counterclaim against InterFirst for alleged impairment of collateral. The motions were argued fully at the pretrial conference. The trial judge did not rule at that time, but allowed both parties to file supplemental memoranda. There was no request for additional or later oral argument. Upon receipt of the supplemental memoranda from counsel, the trial judge entered summary judgment for InterFirst, both on its principal claim against First Federal for dishonor of the two letters of credit, and on First Federal’s counterclaim alleging impairment of collateral. As to the first portion of the motion for summary judgment, First Federal had some six months’ notice of that claim by InterFirst. First Federal was also aware that the matter could be raised at the pretrial conference. We have held that even when such a motion is renewed orally at pretrial conference, the trial court may rule upon it. Powell v. City of Haysville, 203 Kan. 543, 545, 455 P.2d 528 (1969).
With regard to the other portion of the motion, counsel for First Federal participated fully in the argument on the motion and later submitted a memorandum in support of First Federal’s position. We have defined harmless error as that which does not prejudice the substantial rights of a party. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986) (citing City of Ottawa v. Heathman, 236 Kan. 417, 426, 690 P.2d 1375 [1984]). While there may have been procedural error with regard to the notice given on the second part of the motion for summary judgment, First Federal’s counsel made no objection to proceeding with oral argument on the same, and the trial court afforded counsel an adequate opportunity to brief the matter and submit additional memoranda, which was done. The error was harmless, and forms no basis for a reversal.
Next, First Federal contends that there was fraud in the transaction, and an allegation of fraud raises a question of fact for the jury. As we said in Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 9, 605 P.2d 545 (1980), “The existence of fraud is ordinarily a question of fact.” And see Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 64, 643 P.2d 100 (1982).
The gist of First Federal’s argument is that, when InterFirst made the loan, its loan officer had before him sufficient information to put InterFirst on notice that Chainey had substantial interest in both TMR, First Federal, and the Holding Company. Furthermore, First Federal contends that in view of the statutory limits imposed upon financial institutions on loans to officers, InterFirst should have investigated the authority of Niewald, the president of First Federal, to issue the letters of credit. We do not agree. The loan officer called the controller of First Federal before making the loan, thus putting First Federal on notice that InterFirst was expecting letters of credit to secure a loan to Chainey. The facts upon which First Federal relies simply disclosed to InterFirst’s loan officer that Chainey had an interest in various financial corporations and apparently was financially solvent. The fraud was obviously that of First Federal’s officers. We find nothing in the record which indicates that InterFirst was put on notice of the fraud being committed by the officers of First Federal and its subsidiary, Service Corp. Further, “fraud in the transaction,” as that phrase is used in K.S.A. 1986 Supp. 84-5-114(2), must stem from the conduct of the beneficiary against the customer, not by the customer against the issuer of the letter of credit. See White & Summers, Uniform Commercial Code § 18-6 (2d ed. 1980).
Here, there was no fraudulent conduct by InterFirst, the beneficiary of the letters, against the customer, Chainey, nor was there any fraudulent conduct by InterFirst as against First Federal. The purpose of a letter of credit is to allow the beneficiary to rely thereon, rather than solely upon the credit of the customer. The exception to the issuer’s duty to honor letters of credit has been narrowly construed by the courts. See New York Life Ins. Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977); First Arlington Nat’l Bk. v. Stathis, 90 Ill. App. 3d 802, 413 N.E.2d 1288 (1980); O’Grady v. Bank, 296 N.C. 212, 250 S.E.2d 587 (1978). Fraud in this connection is defined in an annotation in 25 A.L.R.4th 239, 247 as of “such an egregious nature as to vitiate the entire transaction.”
First Federal bases its claim of fraud upon InterFirst’s duty to investigate further. The information provided to InterFirst by Chainey’s financial statement was scant and sketchy indeed, compared to the actual information possessed by First Federal at the same time. We find no duty upon InterFirst to make further investigation at the time it accepted the letters of credit and made the loans. Summary judgment was properly entered on this issue.
Next, First Federal argues that summary judgment was improperly entered on the issue of lack of authority of Niewald, its president, to issue the letters of credit. First Federal contends that InterFirst’s knowledge of the same facts relied upon in the point last discussed impaired its ability to rely on Niewald’s apparent authority to issue the letters of credit. We do not agree. Further, First Federal disputes Niewald’s authority, contending that under the bylaws he was required to secure approval from the board of directors before issuing letters of credit. However, First Federal ratified Niewald’s action in two ways, thus making the issues of knowledge and apparent authority moot. First Federal was notified by the Federal Home Loan Bank of the issuance of the letters of credit in early September 1984. After obtaining such knowledge, First Federal failed to notify Inter-First or complain of any wrongdoing or unauthorized act by Niewald. There was no repudiation of Niewald’s issuance of the letters of credit, once the issuance became known to First Federal’s board. We have held that, upon acquiring knowledge of an agent’s unauthorized act, the principal should promptly repudiate the act, otherwise the act will be presumed ratified and affirmed by the principal. See Schraft v. Leis, 236 Kan. 28, 37, 686 P.2d 865 (1984), and authorities there cited. By failing to object to Niewald’s issuance of the letters of credit, First Federal effectively ratified the allegedly unauthorized act. First Federal further ratified Niewald’s acts by executing an escrow agreement with Kassuba on November 13, 1984, wherein First Federal agreed to “honor the Letters of Credit with InterFirst Bank Greenspoint, Houston, Texas, or its successors.”
We have frequently held that an unauthorized act of an agent may be ratified by a principal, and when ratified is the equivalent of an original grant of authority. Osborn v. Grego, 226 Kan. 212, 216, 596 P.2d 1233 (1979); and see cases there cited.
First Federal admitted that Niewald had apparent authority to issue the letters of credit. The admission was later retracted and it was contended by First Federal that while Niewald had apparent authority to issue letters of credit on behalf of a customer, that apparent authority would not be apparent to an officer of another bank. Again, First Federal seeks to raise the “knowledge” of InterFirst, disclosed by the financial statement given by Chainey at the time he sought the original loan. We hold that this financial statement did not raise any red flags which would require InterFirst to investigate the authority of Niewald, as president of First Federal, to issue the letters of credit. Niewald was unknown to InterFirst, and it had no reason or duty to question his authority. We hold that summary judgment was properly entered on this issue.
First Federal next contends that the drafts were not in strict compliance with the terms of the letters of credit. K.S.A. 1986 Supp. 84-5-114(1) and (2) allow an issuer to dishonor drafts that are not in compliance with the letter of credit. First Federal claims that the drafts were presented for payment in the sum of $400,000 while only $380,000 was due on the promissory notes secured by the letters of credit. Additionally, First Federal contends that when the drafts were presented, it had not been established that Chainey and Kassuba had not “performed satisfactorily” on their notes to InterFirst. The trial court found no fraud on the part of InterFirst and concluded that the documents presented were in substantial compliance with the letters of credit.
While only $380,000 principal was due on the $400,000 note, over $14,000 in interest had accrued at the time InterFirst presented the letters of credit to First Federal for payment. Additionally, the letters of credit were secondary collateral for the $225,000 loan. Chainey and Kassuba were in substantial default on all of these obligations to InterFirst at the time InterFirst processed its draft and demanded payment from First Federal. Accompanying the draft was a statement from a vice-president of InterFirst stating that Chainey and Kassuba “have not performed satisfactorily under the terms of a contract or obligation to InterFirst Bank Greenspoint, Houston, Texas”. We need not here decide whether the standard for demands on payment of letters of credit should be strict compliance or substantial compliance. We hold that the drafts and documents submitted by InterFirst strictly complied with the terms of the letters of credit. This issue has no merit.
First Federal contends that InterFirst made an election of remedies, after this case was pending, by filing a separate and direct action against Chainey and Kassuba in Texas. First Federal relies upon Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 411-12, 548 P.2d 1238 (1976), where we said:
“The doctrine of election of remedies is an application of one phase of the law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions. . . . The test of inconsistency of remedies is a factual and logical one. To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.”
InterFirst, prior to commencing this action, served First Federal with a draft and several attached documents, including an affidavit of its vice-president stating that Chainey and Kassuba “had not performed satisfactorily under the terms of a contract or obligation to InterFirst.” InterFirst is bringing this action to enforce the letters of credit for the simple reason that Chainey and Kassuba did not pay according to the terms of their notes with InterFirst. Similarly, it brought an action in Texas, seeking judgment against Chainey and Kassuba, contending that Chainey and Kassuba did not pay according to the terms of their notes and obligations to InterFirst. We see nothing inconsistent or repugnant between these two actions. InterFirst is simply attempting to recover the proceeds of a bad loan, plus the accrued interest thereon. It matters not whether that sum is paid by First Federal on the letters of credit which were security for the loan, or whether the sum is paid by Chainey and Kassuba. Once InterFirst has been fully paid, in either action, then the other case should be dismissed. Payment, however, has not occurred. We find no inconsistency in the actions.
Finally, First Federal contends that InterFirst improperly released 209,905 shares of Fuddruckers stock which it held as collateral for the underlying loans, thus impairing First Federal’s rights in that collateral. The facts, however, do not support this contention. Chainey executed a written security agreement to InterFirst, specifically giving InterFirst a security interest in 45,000 shares of Fuddruckers stock. The same document indicated that the stock was not certificated. Chainey at that time gave InterFirst a Voting Trust Certificate, showing Chainey’s ownership interest in 209,905 shares of Fuddruckers common stock. InterFirst recorded the receipt of the Voting Trust Certificate in its collateral register to show 45,000 shares of stock were held to secure indebtedness. The trustee of the Voting Trust confirmed the assignment of 45,000 shares. Simultaneously with the creation of the security interest, InterFirst perfected its security interest in 45,000 shares.
The Voting Trust stock was uncertificated. Chainey did not place in InterFirst’s hands stock certificates for 209,905 shares of Fuddruckers stock; Chainey simply provided a document indicating his ownership of that many shares of stock at the time he specifically gave InterFirst a security agreement in 45,000 of those shares. InterFirst subsequently sold the 45,000 shares and returned the Voting Trust Certificate for 209,905 shares to Chainey, since it had no interest beyond the 45,000 shares.
We see no reason to go into a lengthy discussion of the provisions of the Uniform Commercial Code, and to determine whether Texas law or Kansas law applies. Both states have adopted the Uniform Commercial Code, and the outcome is the same under the statutes of either state. Simply put, InterFirst had no interest beyond the 45,000 shares, and its return of the Voting Trust Certificate to Chainey did not impair the collateral available either to it, or to First Federal, in the only property which was subject to the security agreement, 45,000 shares.
We conclude that the judgment of the District Court of Mitchell County was correct, and it is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a sex discrimination action filed by Robert Williams under K.S.A. 44-1009(a)(l) wherein Williams contends the policies of his employer, Kansas Gas & Electric Co. (KG&E), allowing leaves of absence for female employees suffering from pregnancy-related disabilities but not allowing leaves of absence for male employees suffering work-related disabilities, are unlawful. The Kansas Commission on Civil Rights (KCCR) held in Williams’ favor. On appeal, the district court held in favor of KG&E. The KCCR and Williams appeal from the decision of the district court.
Williams commenced his employment with KG&E on October 28, 1981. Three days later he injured his shoulder while at work breaking down truck tires. This accidental injury was not reported to KG&E for several months. In June 1982, Williams reinjured his shoulder at work and Williams applied for workers’ compensation benefits. Surgery was necessary to repair the injury. Williams sought a leave of absence from KG&E to avoid termination, but the request was denied. On August 27, 1982, surgery was performed on Williams’ shoulder. On September 10, 1982, Williams’ physician sent a letter to KG&E which stated Williams would be released for work in eight weeks. In September 1982, Williams was terminated as he had used up his sick leave and was unable to return to work. In October 1982, Williams again requested a leave of absence which was denied.
In mid-December 1982, Williams was released by his physician and filed for unemployment compensation benefits. The workers’ compensation claim was resolved on January 6, 1984, with Williams receiving a 15% work disability. On April 16, 1984, Williams returned to work for KG&E in the same position he previously held with seniority to be calculated as of the reinstatement date.
On January 28, 1983, Williams filed the sex discrimination complaint herein with the KCCR alleging KG&E’s refusal to grant him a leave of absence constituted sex discrimination under K.S.A. 44-1009(a)(l), which provides in part:
“(a) It shall be an unlawful employment practice:
“(1) For an employer, because of the . . . sex ... of any person ... to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment ... or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive.”
K.A.R. 21-32-2, issued by the Commission, provides that it shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits. Fringe benefits include “medical, hospital, accident, life insurance and retirement benefits; profit sharing and bonus plans; leave and other terms, conditions and privileges of employment.”
K.A.R. 21-32-6, also issued by the Commission, provides:
“(a) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is prima facie discrimination.
“(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth and recovery therefrom, are for all job related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.
“(c) Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such termination is discriminatory if it has a disparate impact on employees of one sex and is not justified by business necessity.
“(d) Childbearing must be considered by the employer to be a justification for a leave of absence for female employees for a reasonable period of time. Following childbearing, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original job or to a position of like status and pay without loss of service, credits, seniority or other benefits.”
Kansas Administrative Regulations, when adopted, have the force and effect of law. Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, Syl. ¶ 1, 592 P.2d 456 (1979); K.S.A. 1987 Supp. 77-425.
KG&E’s sickness/injury allowance policy contains paragraph S20.502(2), which provides:
“An employee whose disability (for other than compensable accidents) prevents his return to duty at the expiration of the allowances provided in the above schedule will normally be terminated at the expiration of the period of scheduled allowances. Leave (without pay) may be extended when requested by the Department Head and with Executive approval. Procedures outlined under the Leave of Absence policy should be followed to extend employee status.”
KG&E later adopted L10.104, which provides:
“Female employees who are qualified for sickness or injury allowance benefits are eligible at their election to a leave of absence (without pay) or to earned sick leave pay when medically unable to work because of pregnancy, provided other provisions of the sick leave policy are observed as required of all employees. This is six (6) weeks or less in most pregnancies. Female employees who intend to continue their KG&E employment and desire additional time off prior to and/or following childbirth or do not have sickness or injury benefits available will, upon request, be placed on a Leave of Absence without pay.”
The evidence is uncontroverted that all male and female employees are treated equally by KG&E under S20.502(2).
Female employees qualified under L10.104 have a right to seek leaves of absence thereunder for pregnancy-related disabilities. Williams and the KCCR contend that the special provi sions relative to pregnant employees constitute unlawful discrimination against male employees. We do not agree.
It is easy to mouth platitudes to the effect that employers should consider all employees as “its” and determine all employment policies on that basis. The extremists would declare that any deviation from this so-called ideal is unlawful. Such a position ignores the real world. Homo sapiens are either male or female. The role of bearing children falls on the female sex. As a result of our changing society, more than 50% of adult women of childbearing age work outside the home. For a variety of reasons, an ever-increasing number of households are headed by single women. Such households, economically, lag far behind their counterparts headed by single males or married couples. In recent years, considerable national attention has been focused on this problem and its causes and means of correction. One of the principal causes of the situation is the detrimental effect childbearing has on the career success of women. Let us assume three college graduates enter the market force at age 21 years with comparable jobs with the same employer. Two are women and one is a man. All three progress up the company ladder for four years. The man decides to have a family. His wife bears children. This decision has no detrimental effect on his career and in fact may enhance it if the company favors “family” men in promotions. Woman A is a single career-oriented person and/or is infertile. She bears no children and progresses uneventfully up the company ladder. Woman B is a fertile woman with the natural desire to have a family. With no company policy protecting her, bearing a child makes her drop off the rung of the company ladder she has attained. When she rejoins the labor force, she starts at the bottom again. With the birth of a second child she again drops off the rung of the ladder she is climbing. Ten or fifteen years into our example, the man and woman A in our example have a lead up the company ladder that woman B can never hope to catch. By now woman B may be divorced or widowed and the head of a three-person household. So, she now has substantial economic needs and lower income to meet such needs than do the man and woman A. Yet each of the three individuals was substantially equal in abilities and earning capacity at age 21.
The district court viewed KG&E’s policy set forth in L10.104 as a form of affirmative action. That is, the policy was not intended to give pregnant women an advantage over males and nonpregnant female employees, but to give them an opportunity to remain equal with their male and female counterparts in the company. Williams and the KCCR consider this to be an outrageous position for the district court to take and claim it is error of the grossest kind. Appellants contend the district court erred in refusing to apply the three-pronged test set forth in Woods v. Midwest Conveyor Co., 231 Kan. 763, Syl. ¶ 2, 648 P.2d 234 (1982):
“The burden of proof in a proceeding under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.”
The district court initially held the three-pronged test of Woods inapplicable as this was an affirmative action policy. Later, in its denial of Williams’ motion for reconsideration, the district court held that the first prong had to be answered in the negative as the challenged policy was not discriminatory. The district court was impressed by the fact that KG&E’s policy set forth in L10.104 was in accordance with the Commission’s pregnancy leave requirements set forth in K.A.R. 21-32-6.
Some attention should be given to federal legislation in this area, although this action is predicated upon K.S.A. 44-1009(a)(1). The purpose of Title VII of the Civil Rights Act of 1964 is “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). In 1976, the United States Supreme Court ruled, in General Electric Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401 (1976), that discrimination on the basis of pregnancy was not sex discrimination under Title VII. In re sponse to the Gilbert decision, Congress passed the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k) (1982), which specifies that sex discrimination includes discrimination on the basis of pregnancy. Congress intended through the PDA to provide relief for working women and to end discrimination against pregnant workers. A sponsor of the PDA stated, “The entire thrust . . . behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.” California Federal S & L Assn. v. Guerra, 479 U.S. 272, 289, 93 L. Ed. 2d 613, 107 S. Ct. 683 (1987) (quoting 123 Cong. Rec. 29658 [1977]).
Had a female employee of KG&E incurred the identical shoulder injury Williams did, it is uncontroverted her request for a leave of absence would have been denied just as Williams’ request was. Obviously, she could not claim sex discrimination based on the leave permitted pregnant female employees. The company’s policies treat both sexes the same for on-the-job injuries. Were Williams to prevail herein on the basis of sex discrimination, then the only group without leave privileges would be nonpregnant female employees — a clear example of sex discrimination. Under KG&E’s policies a pregnant employee with a shoulder injury like Williams would be treated the same as Williams as the disability would not be pregnancy-related.
We conclude that the district court did not err in holding that the challenged policies of KG&E did not constitute sex discrimination under K.S.A. 44-1009(a)(l).
For their second issue, appellants contend the district court erred in failing to state the controlling legal principles it relied upon and, alternatively, misapplied the appropriate legal standards. This alternative ground has been discussed in the preceding issue. Failure to apply the proper standard of proof to the evidence has been held to be error in a discrimination case. Sigurdson v. Isanti County, 386 N.W.2d 715 (Minn. 1986).
In the case before us, all significant facts were undisputed. Basically, a question of law was presented. In its original opinion, the district court held the three-pronged Woods test inapplicable as this was a matter akin to affirmative action — removing a barrier holding back a previously discriminated against minor ity rather than a policy of discrimination against a group. In its decision on reconsideration, the district court adhered to this position but specifically found no discrimination under prong one of Woods, which ended further consideration of the Woods test.
There are no findings on disputed facts before us so the burden of proof applied by the district court has little significance on review. Under the circumstances herein, this court is essentially determining a question of law based upon statutes, regulations, and undisputed facts. We, therefore, decide the matter based upon our own determination of the applicable law. We conclude this issue is without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allegruoci, J.:
Gary Moore was convicted by a jury of one count of rape, K.S.A. 1986 Supp. 21-3502, and one count of aggravated incest, K.S.A. 1986 Supp. 21-3603. He was sentenced to five to twenty years’ and two to five years’ imprisonment, respectively, to run concurrently. Defendant appeals, contending that the trial court erred in admitting into evidence prior sexual relations between him and the victim without a limiting instruction and in denying defendant’s motions for mistrial and new trial based on statements by the prosecuting attorney in closing argument. Defendant also contends that aggravated incest is a lesser included offense of rape.
The basic facts are not in dispute. B.M. is the daughter of the defendant. B.M. testified that, from the time she was six to when she was twelve years old, the defendant had frequently engaged in sexual intercourse and oral sex with her. The defendant ceased this activity when B.M. threatened to tell her mother. The defendant and B.M.’s mother later separated.
In July 1984, the defendant indicated to B.M. that he was sorry that the prior sexual activities had occurred, and B.M. moved into the defendant’s house in AltaVista, Kansas. In August 1984, the defendant took B.M. to a beer keg party in Wabaunsee County. After they returned home, B.M. went to her bedroom and fell asleep. B.M. testified that she was awakened later in the night by the defendant, who entered her room and engaged in sexual intercourse with her, to which she did not consent and against which she did not resist out of fear. In August 1984, B.M. was sixteen years old.
We first consider defendant’s contention that the crime of aggravated incest (K.S.A. 1986 Supp. 21-3603) is a lesser included crime of rape (K.S.A. 1986 Supp. 21-3502) and that, therefore, while he might be convicted of either aggravated incest or rape, he could not be convicted of both. K.S.A. 1986 Supp. 21-3107(2) provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) a crime necessarily proved if the crime charged were proved.”
K.S.A. 1986 Supp. 21-3107(2)(a) was discussed in State v. Long, 234 Kan. 580, 675 P.2d 832 (1984). In Long, this court held that theft (K.S.A. 1986 Supp. 21-3701) is a lesser included offense of robbery (K.S.A. 21-3426), even though the two crimes contain separate and distinct elements, and thus would not fall under clause (d) of 21-3107. 234 Kan. at 587-92. This court found that robbery and theft were traditionally considered to be different degrees of the same generic crime of larceny, and that theft would therefore be an included crime of robbery under clause (a) of 21-3107. 234 Kan. at 590-92.
For purposes of K.S.A. 1986 Supp. 21-3107(2)(d), on the other hand, an offense is considered an included crime when “all [of the] elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense.” State v. Coberly, 233 Kan. 100, 107, 661 P.2d 383 (1983). If the lesser offense requires proof of an element which is not required of the greater offense, it is not a lesser included offense. State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). Under this test, the crime of rape has been held to include as lesser included offenses the crimes of aggravated assault (K.S.A. 21-3410), State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); and indecent liberties with a child (K.S.A. 1986 Supp. 21-3503), State v. Coberly, 233 Kan. 100. The crimes of adultery (K.S.A. 1986 Supp. 21-3507), State v. Platz, 214 Kan. 74, 519 P.2d 1097 (1974); lewd and lascivious behavior (K.S.A. 1986 Supp. 21-3508), State v. Davis, 236 Kan. 538, 694 P.2d 418 (1985); and aggravated sexual battery (K.S.A. 1986 Supp. 21-3518), State v. Galloway, 238 Kan. 415, are not lesser included offenses of the crime of rape.
K.S.A. 1986 Supp. 21-3603 defines aggravated incest:
“(1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
“(2) The following are prohibited acts under subsection (1):
“(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
Rape is defined by K.S.A. 1986 Supp. 21-3502:
“(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following 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 two crimes may both arise from an act of sexual intercourse. However, each of the crimes requires additional elements which are not required by the other crime. Aggravated incest requires that the prohibited sex act be performed with a victim under 18 years of age who is within the required degree of kinship, and that the offender is aware of the relationship. These elements are not required to convict a defendant of rape. Rape requires that the act of sexual intercourse be performed without the consent of the victim and that the victim’s resistance has been overcome by force, fear, or another designated circumstance. These elements are not required to convict a defendant of aggravated incest. Aggravated incest is not a crime which is necessarily proved if the crime of rape is charged and proved.
Nor have incest and rape been traditionally considered to be different degrees of the same generic offense for purposes of K.S.A. 1986 Supp. 21-3107(2)(a). Rather, the crimes of incest and rape in Kansas and other states have been considered to be separate and independent crimes. In State v. Learned, 73 Kan. 328, 85 Pac. 293 (1906), the defendant was charged with six counts of incest. The defendant contended that the prosecution was barred since he had previously been convicted of charges of statutory rape arising from the same act of sexual intercourse. This court disagreed, stating:
“The distinctive ingredient of the crime of incest is the relationship of the parties, while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand, evidence that would convict of statutory rape would not suffice to convict of incest, as the relationship is wanting. Hence the crimes, although committed by the same act, are different crimes; and a prosecution for one is no bar to a prosecution for the other. (The State v. Patterson, 66 Kan. 447, 71 Pac. 860.)” 73 Kan. at 331.
In Wiebe v. Hudspeth, 163 Kan. 30, 32, 180 P.2d 315 (1947), this court again addressed the same issue of “whether one act of intercourse could be the basis of two charges — statutory rape and incest — providing the other elements of each offense were present.” Relying upon Learned, the court held that the defendant could be charged in the same information with statutory rape and incest, even where the charges arose from a single act of sexual intercourse, and affirmed the defendant’s convictions on both charges.
42 C.J.S., Incest § 1(c) states: “Rape and incest have been recognized as wholly different or independent offenses. The crime of incest is not a lower degree of the crime of rape, and is not included therein.” State v. Learned, 73 Kan. 328, is one of the authorities cited for this statement. This work continues, stating that, in jurisdictions where mutual consent is not required as an element of incest, “the same act may constitute both rape and incest.” 42 C.J.S., Incest § 1(c), p. 504. The present definition of aggravated incest in Kansas does not require mutual consent. K.S.A. 1986 Supp. 21-3603.
Other jurisdictions have also found that the crimes of rape and incest are separate offenses. In State v. McCall, 245 Iowa 991, 999-1000, 63 N.W.2d 874 (1954), the Iowa Supreme Court stressed the distinct nature of the two crimes:
“Rape is basically a crime of force perpetrated upon a female. It is always against her consent, either actual or conclusively presumed, as in the case of a female under the age of consent.
“The crime of incest is fundamentally different from rape [because] incest is sexual intercourse between persons too closely related. It is comparable with adultery, which is sexual intercourse between persons one or both of whom are married to third persons.”
Stewart v. State, 35 Tex. Crim. 174, 32 S.W. 766 (1895), held that a prior acquittal of the defendant on a charge of rape does not bar a subsequent prosecution on a charge of incest for the same act of sexual intercourse.
“While the testimony might show that it was one and the same transaction, yet the offenses are distinct, and each requires a different character of proof. The same person might be innocent of the charge of rape, while in the same transaction he might be guilty of incest, and an acquittal for the rape does not bar a prosecution for the incest.” (Emphasis added.) 35 Tex. Crim. at 177.
The Supreme Court of Ohio addressed the issue of whether incest was “an inferior degree to the offense of rape” in State v. Labus, 102 Ohio St. 26, 32, 130 N.E. 161 (1921). The court held that incest was not a lesser degree of rape, stating: “In the popular sense, naturally, incest would be regarded as inferior in degree to rape; but that is not the legal significance attached to these words in criminal practice.” 102 Ohio St. at 34. Rather, incest and rape were “inherently and essentially so different in their nature, character, and atrocity as to belong to an entirely different class of crimes.” 102 Ohio St. at 33. See also People v. Hawk, 36 Mich. App. 147, 193 N.W.2d 177 (1971) (holding incest not a lesser included offense of statutory rape); State v. Daniels, 169 Ohio St. 87, 8 Ohio Op. 2d 56, 157 N.E.2d 736 (1959) (holding the crime of incest is neither a lesser degree of aggravated rape nor a lesser crime included within the crime of aggravated rape).
Other jurisdictions have also addressed the issue of whether a defendant may be convicted of both incest and rape for the same act of sexual intercourse. In State v. Harvell, 45 N.C. App. 243, 248, 262 S.E.2d 850 (1980), the court stated:
“By his third assignment of error, defendant contends the court erred in denying defendant’s motion to merge the charges of incest and rape. We do not agree. Rape requires force, incest does not. Incest requires kinship, rape does not. Obviously, they are different offenses. They have different elements and are therefore distinct offenses even though one crime was committed during the perpetration of another.”
Similarly, in State v. Haston, 64 Ariz. 72, 166 P.2d 141 (1946), the Arizona Supreme Court affirmed the defendant’s convictions for rape and incest where both offenses arose from the same act of sexual intercourse.
The defendant in the present appeal makes one argument, analogizing the present case to that in State v. Coberly, 233 Kan. 100. In Coberly, this court held that indecent liberties with a child (K.S.A. 1986 Supp. 21-3503) was a lesser included offense of the crime of rape (K.S.A. 1986 Supp. 21-3502). 233 Kan. at 108. The analogy is not persuasive.
In Coberly, although the crime of indecent liberties with a child contains an element not required by the crime of forcible rape (that the victim is under 16 years of age), the crime of indecent liberties with a child nonetheless was held to be an included crime of rape. The court held that, under all the facts and circumstances of the case, proof of the charged crime of rape necessarily proved the crime of indecent liberties with a child.
Coberly is distinguishable from the present case. Aggravated incest requires proof, not only that the victim is under 18 years of age, but also that the offender and victim were within the required degree of consanguinity and that the offender was aware of the relationship. As noted earlier, the crimes of incest and rape have been recognized as protecting different interests. The crime of rape exists to punish — and deter — acts of sexual intercourse to which the female partner does not consent. The crime of incest exists to punish — and deter — sexual acts between close family members.
The legislature has recognized the distinct nature of the two offenses of rape and aggravated incest. Unlike rape and indecent liberties with a child, which are designated as “SEX OFFENSES,” K.S.A. 1986 Supp. 21-3502, -3503, the crime of aggravated incest belongs to a separate article of the criminal code, under which are classified “CRIMES AFFECTING FAMILY RELATIONSHIPS AND CHILDREN.” K.S.A. 1986 Supp. 21-3603. Unlike Coberly, where no identifiable interest existed in punishing the defendant for the crimes of both rape and indecent liberties with a child, in the present case the separate charged offenses of rape and aggravated incest serve markedly different interests: the former by punishing an act of compelled, nonconsensual sexual intercourse; the latter by punishing the commission of an act of sexual intercourse upon a close family member.
In the present case, the defendant intruded upon both interests in forcing his daughter to engage in sexual intercourse with him, and each crime requires proof of elements not present in the other. We find, therefore, that aggravated incest is not a lesser included offense of the crime of rape and the defendant was properly convicted of both crimes.
The defendant next contends that the trial court erred in admitting evidence of prior sexual relations between him and the victim, B.M., without also granting a limiting instruction. Prior to trial, the defendant filed a motion in limine, seeking to prevent the introduction of any testimony relating to “other alleged acts of sexual intercourse or sexual misconduct.” The trial court overruled the motion, ruling that the State could introduce such evidence under K.S.A. 60-455, after first proffering it for a review by the trial court, or, independently of K.S.A. 60-455 and without an initial proffer, as evidence relevant under the Supreme Court ruling in State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981). At trial, the State exercised the latter option and, pursuant to Crossman, called B.M. as a witness, who testified that the defendant had frequently engaged in sexual intercourse and oral sex with her from the time she was six years old to the time she was twelve.
In Crossman, this court stated:
“[I]n cases of crimes involving illicit sexual relations or acts between an adult and a child, evidence of prior acts of similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.” 229 Kan. at 387.
Because the evidence was admissible independent of K.S.A. 60-455, a limiting instruction was not required. 229 Kan. at 386. In State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982), the court followed Crossman, holding that evidence of a discordant marital relationship, including the defendant’s prior violent acts and threats of death made against his wife, was admissible in a trial of the defendant for murder of his wife, independent of K.S.A. 60-455 and without a limiting instruction.
The present defendant’s argument focuses only upon a statement by the court in Green that the counsel for the defendant in that case had not requested a limiting instruction. Therefore, he argues, since his counsel requested a limiting instruction, a different result is compelled.
The defendant misinterprets the basis for the court’s holdings in Crossman and Green. Although it is true the defendant in Green had not requested a limiting instruction, that fact was not the basis for the court’s holding. Rather, Green was based upon the high degree of relevance that the evidence had to corroborate the testimony of a witness as to the act charged, to establish the relationship of the parties, or to establish the existence of a continuing course of conduct between the parties. Green, 232 Kan. at 120-21. As in Crossman, a key part of the defense in the present case was an attack upon the credibility of the victim’s testimony. The Crossman court based its ruling, not upon the failure of the defendant to request a limiting instruction, but upon its finding that “[t]he entire complex family relationship, including prior sexual encounters between Lori and defendant, is highly relevant in this case” to the credibility of the victim’s testimony. Crossman, 229 Kan. at 387.
Because, in the present case, evidence of prior sexual relations between the defendant and the victim was admissible independent of K.S.A. 60-455, no limiting instruction was required. 229 Kan. at 386. The request by the defendant for a limiting instruction does not compel a different result.
The defendant’s final contention is that the State’s attorney made two inappropriate remarks during his closing argument to the jury, and that the district court erred in denying the defendant’s subsequent motions for a mistrial and for a new trial.
The first comment of the State’s attorney cited as improper by the defendant is the following:
“In fact, the course of the whole defense in this case [B.M.] is made out to be quite a monster, a teenager who is totally uncontrollable. But until the defendant took the stand there’s been no evidence whatsoever that he is in fact innocent and as the Court informed you you can decide if he’s telling you the truth.
“I had the right to cross examine that man but if he’ll lie for defense counsel he’ll lie for me too.
“MR. BARRY: Your Honor, I would object to that.
“THE COURT: Sustained. The Jury will disregard that.”
The second asserted improper remark was:
“You also heard Mr. Jones testify in response to questions from the defense as to how he reached his conclusions. That he also based some of his decisions on information that he had gotten from Oklahoma. Those were health care professionals also and they agreed and they believed [B.M.].
“MR. BARRY: Objection, Your Honor, that miseharaeterizes the evidence.
“THE COURT: The Jury will recall what the evidence was.”
An improper remark made by the prosecuting attorney during closing argument will not provide a basis for reversal when the jury has been instructed to disregard the remark, unless it was so prejudicial as to be incurable. State v. Hollis, 240 Kan. 521, Syl. ¶ 11, 731 P.2d 260 (1987); State v. Pursley, 238 Kan. 253, 265,
710 P.2d 1231 (1985); State v. Johnson, 229 Kan. 42, 45-46, 621 P.2d 992 (1981). Misconduct which consists of a prosecuting attorney “going outside the record or in commenting on inadmissible testimony in the heat of final argument must be so gross and flagrant as to deny the accused a fair trial.” State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976).
The analysis of this court in Thompson was summarized by the Court of Appeals in State v. Dill, 3 Kan. App. 2d 67, 75-76, 589 P.2d 634 (1979):
“(1) Is the misconduct so gross and flagrant as to deny the accused a fair trial (i.e are the objectionable statements likely to affect the jurors to the defendant’s prejudice)? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors?”
The jury was instructed to disregard the first comment by the State’s attorney, and there is no indication that this instruction failed to cure any prejudice'to the defendant. As to the second comment, we find it was not so gross and flagrant as to deny the defendant a fair trial.
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The opinion of the court was delivered by
McFarland, J.:
Clarence L. Grubbs appeals his jury trial convictions of two counts of rape (K.S.A. 1986 Supp. 21-3502) and two counts of aggravated robbery (K.S.A. 21-3427).
The sole issue on appeal is the sufficiency of the evidence supporting the convictions. In such challenges the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Dressel, 241 Kan. 426, 427, 738 P.2d 830 (1987); State v. Bird, 240 Kan. 288, 298-99, 729 P.2d 1136 (1986); State v. McKibben, 239 Kan. 574, 585, 722 P.2d 518 (1986).
Two separate incidents are involved in the convictions herein. Each will be considered separately. The principal issue at trial was identity.
VICTIM S.S.
On October 22, 1985, S.S. was working as a receptionist in a Topeka optometrist’s office. She was alone in the office at 4:35 p.m. when a young black man entered and stood at her desk. He stated that he had missed an earlier appointment and wanted to reschedule his appointment. While S.S. was checking the appointment book, the man moved behind her, covered her mouth with his left hand, and held a knife to her throat with his right hand. He then raped S.S., took sixty-two dollars from her purse, and left.
5.5. described her assailant as being in his early twenties, a neat-looking, well-groomed black man with a medium build, medium complexion, and fairly short hair. He was clean shaven and had no mustache. Based on her husband’s height, she estimated her attacker’s height and weight as approximately 5 foot 8 inches and 150 to 160 pounds. She described his clothing as a dark blousy jacket and dark baggy khaki pants. S.S. stated the man had been in the office about a week earlier.
5.5. was shown a six-picture photo lineup on the night of the attack and determined that her attacker was not among those pictured. The following week she was shown a second six-picture photo lineup and immediately identified the photograph of Clarence Grubbs as the rapist. At trial S.S. positively and unequivocally identified Clarence Grubbs as her attacker and the man who had been in the office earlier. The office had been well lighted on both occasions, and S.S. had ample opportunity to study her attacker’s features. A cautionary instruction on eyewitness identification was given.
A rape kit was prepared at a local hospital. Seminal fluid was found to be present, but nothing bearing on the identity of the donor was detected.
Defendant testified as to his whereabouts on the day of the crimes, but there was no corroboration relative to the crucial time period herein.
Defendant argues that the photo lineups presented to S.S. resulted in his misidentification. Defendant appears to take the position that the photos were impermissibly suggestive, as his photo was the only one fitting the description given by the witness. We have viewed the photos and are satisfied that such was not the case. Further, defendant points out that S.S. knew the police had a suspect when she came to the police station to view the lineup. This is certainly not unusual in photo lineup situations.
After carefully reviewing the record, we are satisfied that there was sufficient competent evidence to support the guilty verdicts relative to the rape and aggravated robbery of S.S.
VICTIM T.J.
On October 28, 1985, T.J. was working at a dry cleaning establishment in South Topeka. At approximately 6:00 p.m. a black man entered the premises and inquired about cleaning prices. T.J. asked him what type of clothes he wanted cleaned and he said it was a man’s suit. The price was quoted and he turned to leave. He then brandished a knife and ordered T.J. to lock the front door, which she did. He took money from the store’s cash register and money bag. He then raped T.J. and took money from her purse.
At trial T.J. testified that her attacker was a black man, approximately 5-foot-8 to 5-foot-9 inches tall and weighing approximately 150 pounds. He had no facial hair and did not wear glasses. He was wearing a black jacket with a yellow stripe on one side and military-style camouflage pants. She identified two exhibits as being the jacket and pants worn by her attacker. Testimony revealed that the jacket and pants belonged to the defendant and that the jacket had been seized pursuant to a search warrant from the defendant’s bedroom approximately 48 hours after T.J. was raped. The camouflage pants had been taken from a residence the defendant was moving into at the time of the execution of the search warrant.
T.J.’s description of her attacker given to the police shortly after the commission of the crimes was consistent with her trial testimony. During the evening following the attack, T.J. viewed 50 photographs but could not identify any. The next day she picked defendant from a group of six photos. She positively and unequivocally identified defendant at trial as her assailant. Fibers found at the scene and on T.J.’s clothing were consistent with defendant’s jacket admitted at trial.
Defendant testified he had been assisting a minister to move during the crucial time period. The minister testified defendant did not arrive until approximately 8:00 p.m. Other aspects of defendant’s version of the events of October 28 were uncorroborated and in some instances controverted.
T.J. was seventeen years old at the time of the offense, and an honor student at Highland Park High School. She testified that cross-racial identification was no problem for her as approximately 50 percent of the student body of her school is black. She testified that the lighting was good in the store and that she had ample opportunity to see her assailant’s features. She further testified that she made a conscious effort to study the man’s features so she could later identify him if given the opportunity.
A rape kit was prepared at a local hospital. It was determined by KBI forensic examiner Susan Scholl that T.J. was a secretor, and had type B blood with PGM subtype 1+. The vaginal smear showed the presence of seminal fluid and a PGM subtype 2+1+. Defendant’s PGM subtype is 1+1-. Ms. Scholl testified the PGM subtype 2+ could not have come from defendant. Inasmuch as T.J. had been a virgin prior to the attack, the possibility that the 2+ subtype came from a prior donor was eliminated. Later, additional samples were taken from T.J. and defendant which confirmed their respective PGM subtypes. Obviously, the vaginal mixture present after the rape could not be replicated for additional testing.
In State v. Washington, 229 Kan. 47, 55, 622 P.2d 986 (1981), we concluded the Multi-System polymorphic enzyme analysis method of serological testing was sufficiently accepted as reliable by the scientific community to justify admission into evidence. PGM is one of the polymorphic enzymes analyzed in the Multi-System methodology. See State v. Washington, 229 Kan. at 49. Moreover, we stated as dictum in Washington that courts throughout the United States held admissible in criminal prosecutions blood grouping tests as relevant evidence tending to prove the identity of the accused as the criminal, to establish the accused’s presence at the scene of the crime, or to corroborate other evidence that a crime had in fact occurred. 229 Kan. at 54-55.
There was no testimony at trial relative to the degree of accuracy in PGM testing from vaginal swabs after sexual intercourse to identify or exclude donors nor as to any degrees of error in such testing. There was no testimony relative to the time lapse between the taking of the vaginal swab and the testing at the KBI laboratory.
Defense counsel submitted additional authority to this court in support of its position that defendant could not be convicted of the T.J. rape by virtue of the PGM test results. Interestingly, included in this material was an article entitled The Typing of Phosphoglucomuta.se in Vaginal Material and Semen by Price, Davies, Wraxall, Martin, Parkin, Ernes, and Culliford, which appeared in Vol. 16, p. 29 of the 1976 edition of the Journal of Forensic Science Society. The article states, inter alia:
“These workers also studied the effects of temperature and humidity on the PGM patterns obtained from three fresh semen samples from normal donors representing the common PGM types, in both liquid and stain conditions. No anomalies were found that could be considered applicable to the situations found in forensic casework. Rees and Rothwell (1975) also examined PGM typing in seminal stains. They found one instance in which a stain made from a semen sample from a person of type PGM 1 gave a PGM 2-1 result when tested at an age of seven days. However, stains made from the same sample and tested after two and seventeen days gave a PGM 1 result. The authors offer no explanation for this finding and do not comment on the possibility that a clerical error may have been responsible.
“In the same paper, Rees and Rothwell reported results from the typing of 62 vaginal swabs taken shortly after intercourse from women attending a fertility clinic. In two instances, both of which concerned couples whose partners were of blood type PGM 1, a swab gave a PGM 2 result, and in another a PGM 2-1 result was obtained from a couple of type PGM 1. Duplicate swabs from two of these couples also gave the anomalous results. Unfortunately, there are no photographs of these discrepant band patterns in the paper and, therefore, it is difficult to assess these findings. Rees and Rothwell conclude that it is unwise to type semen on vaginal swabs by use of PGM polymorphism. However, we believe that such a decision should not be made when it is based on the results obtained from material from a clinic, as in these circumstances there can be no guarantee that the anomalies are not due to the presence of semen from a third party whose existence is unknown to the researchers.
“Furthermore, the concentration of semen on the swabs that gave anomalous results was so low that it is unlikely that the results were due to changes in seminal PGM type, and the authors have made no separate study of the typing of vaginal PGM.” p. 30.
Defendant contends, in essence, that the PGM testing excluding him as the donor of semen found in T.J. conclusively established his innocence and that the jury’s finding of guilt is, therefore, not supported by the evidence. Defendant does not go so far as to contend that such evidence mandates a directed verdict, an alien procedure in criminal cases, but, rather, that a jury in such circumstances is required to find a defendant not guilty, irrespective of other evidence in the case.
For many years it was considered proper in Kansas to instruct juries that the weight to be afforded expert testimony was to be determined by the jury. The present PIK Criminal position is found at PIK Crim. 2d 52.14, wherein it is stated:
“52.14 EXPERT WITNESS
“The Committee recommends that there be no separate instruction given on the expert as a witness.
“Comment
“See PIK 2d 250, Expert Witness and Notes on use. The Committee believes that an expert should be considered as any other witness as set forth in PIK 2d 52.09, Credibility of Witnesses.”
PIK Crim. 2d 52.09 states:
“52.09 CREDIBILITY OF WITNESSES
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.
“Notes on Use
“This instruction should be given in every criminal case. See K.S.A. 22-3415, Laws applicable to witnesses. See K.S.A. 60-417, Disqualification of witness; interpreters. See also K.S.A. 60-419, 420, 412 and 422 covering necessity of knowledge or experience on the part of a witness, evidence relating to credibility, limitation on evidence of conviction of crimes and other limitations on admissibility of evidence affecting credibility.”
The witness credibility instruction given herein was as follows:
“INSTRUCTION NO. 11
“It is for you to determine the weight and credit to be given to the testimony of each witness. You have a right to use the knowledge and experience which you possess in common with persons in general, in regard to the matter about which a witness has testified. You may take into account the ability and opportunity to observe and know the things about which they have testified, memory, manner, and conduct while testifying, and interest they may have in the result of this trial, and the reasonableness of their testimony considered in the light of all the evidence in this case.”
No complaint is made as to the form of this instruction.
The transcript of T.j.’s testimony shows her to be a strong, credible witness. A cautionary eyewitness instruction was given. The jury obviously chose to believe T.J. and other incriminating testimony rather than the expert witness. Under the law of Kansas as reflected in the instruction given, the jury had the right and duty to determine the weight and credit to be given the testimony of each witness. Do the rather unique circumstances presented herein operate to deprive the jury of its right to determine what weight shall be afforded to the testimony of each witness? We think not. Defendant’s contention herein would result in the expert’s conclusion that defendant was not the donor of seminal fluid found in the victim’s vagina constituting an absolute legal bar to a conviction of the crime of rape and the robbery herein, irrespective of any other evidence admitted. Expert witnesses cannot be the ultimate determiners of guilt or innocence and thereby usurp the role of the jury under our system of jurisprudence. There was substantial competent evidence supporting the convictions of the crimes committed in the T.J. incident and, accordingly, the convictions cannot be disturbed upon appeal when challenged on sufficiency of the evidence grounds.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the special administrator from a judgment of the district court holding that a voluntary conservatee could make inter vivos gifts to his co-conservators and others without court approval. The Court of Appeals affirmed in part and reversed in part the judgment of the district court in an unpublished opinion. We granted the special administrator’s petition for review.
In July 1980, Fred A. Marcotte filed a voluntary petition for conservatorship with the Finney County District Court. The petition stated that Marcotte was 77 years old and required the appointment of a conservator “because I am physically incapacitated and am unable to properly manage my property.” The district court accepted the petition on July 18, 1980, and appointed a nephew and niece of Marcotte’s, Charles L. Winter and Darlene M. Graff, as co-conservators.
Mr. Marcotte died testate on October 25, 1983. On December 23, 1983, Winter and Graff, who are also the co-executors of Marcotte’s will, filed a petition for probate of the will; The bulk of Marcotte’s estate passed in equal proportions to eight beneficiaries. On January 12, 1984, Winter and Graff filed a petition to terminate their conservatorship. The district court filed an order discharging Winter and Graff, and terminating the conservator-ship, on January 13, 1984.
Winter and Graff filed an inventory and valuation of Marcotte’s estate with the probate court on July 24, 1984. On December 7, 1984, five beneficiaries under Marcotte’s will filed a petition to set aside the court’s order discharging Winter and Graff as conservators. They alleged that Winter and Graff had failed to provide yearly accountings as required by K.S.A. 59-3029, that the beneficiaries had not received notice of the proceedings to terminate the conservatorship, and that the final inventory of the conservatorship failed to present an accurate, full, and final account of the property remaining in the conservatorship. On August 27, 1986, Gerald O. Schultz was appointed as special administrator to represent the estate of Fred A. Marcotte in the conservatorship proceedings.
The transactions challenged, first by the five beneficiaries and subsequently by special administrator Schultz, are a series of gifts made by the co-conservators, Winter and Graff, during the course of the voluntary conservatorship. From 1980 to 1983, $146,000 in gifts were made. Of these gifts, $92,000 in mutual funds was given to either Winter or Graff, their spouses, or their children. The Graff family received $49,000 in gifts during this period, $24,500 of which was received by Darlene Graff. The Winter family received $43,000, $24,500 of which was received by Charles L. Winter. Neither the co-conservators nor their families had received gifts of mutual funds prior to the conservatorship’s being established.
The co-conservators, Graff and Winter, testified that they never consulted with Fred Marcotte and never verified his intent in making the gifts. The gifts were initiated by Oliver Hester, a stockbroker and dealer in mutual funds. Hester would call them and inform them that Marcotte had made some gifts and would instruct them to write out a check in a certain amount. The conservators never made an attempt to independently verify Marcotte’s wishes. The checks were then used to purchase the mutual funds, which Hester sold on a commission. Graff and Winter testified that they both later thanked Marcotte for his gifts, but never discussed with him the nature or the size of the gifts they had received.
On October 31, 1986, the district court ruled that the gifts made by Marcotte after May 27, 1983, were made while he was mentally incapacitated, and voided the gifts of approximately $24,000 in mutual funds made after that date. Finding Marcotte mentally competent prior to May 27, 1983, the court held that he could dispose of personal property by inter vivos conveyance during the conservatorship without court approval or control, and upheld the validity of the gifts of mutual funds made prior to May 27, 1983.
The Court of Appeals, in holding that a voluntary conservatee may not dispose of personal property by inter vivos conveyance without court approval, ruled that the gifts “must be returned to the estate.” The Court of Appeals, however, held that the penalty provisions of K.S.A. 59-1704 did not apply in the present case. We granted the special administrator’s petition for review.
The Court of Appeals correctly rejected the trial court’s conclusion that a voluntary conservatee may dispose of personal property by inter vivos conveyance without court approval. The trial court based its conclusion upon our decision in Citizens State Bank & Trust Co. v. Nolte, 226 Kan. 443, 601 P.2d 1110 (1979), where we said:
“[W]e have concluded that a conservatee under a voluntary conservatorship cannot contract or deed away his property inter vivos without the prior approval of the conservator or, where required by statute, the approval of the district court. However, as established by [Union National Bank of Wichita v.] Mayberry [, 216 Kan. 757, 533 P.2d 1303 (1975)], he may make a testamentary disposition if the conservatee has testamentary capacity. In arriving at this conclusion, we are convinced that a contrary rule would defeat the primary purpose of the voluntary conservatorship statute to dignify old age by eliminating, in many instances, the stigma of having the elderly person declared incapacitated or incompetent. . . .
“It also appears to us that, if a voluntary conservatee were given the power in his discretion to dispose of his property inter vivos, it is doubtful that any person would want to accept the position of conservator, since such a conservator, although given responsibilities and duties, would really have no control over the estate of his conservatee. This would be an extremely difficult, if not an impossible situation.” 226 Kan. at 450-51.
The Court of Appeals concluded that the trial court’s reading of our decision in Nolte was too narrow:
“We do not read Nolte as making any distinction between real and personal property. Rather, the Nolte court couched the issue in terms of the capacity of a voluntary conservatee to make an inter vivos disposition of conservatorship assets. 226 Kan. at 446.
“If the conservatorship statutes are to mean anything at all, the conservators must exercise control over the estate, and conserve the assets of the conservatorship under their charge of responsibility. To permit the conveyances here to stand totally undermines the control mandated by the statutes.
“[Marcotte] could have terminated his voluntary conservatorship and given gifts or made conveyances to anyone of his choosing. He could have changed his will during the conservatorship (assuming testamentary capacity); the voluntary conservatorship does not inhibit testamentary disposition of property.
“Under Nolte and the statutory mandates, [Marcotte] lacked capacity to make or direct the making of the inter vivos conveyances of personalty without court approval and control.”
The conservators, Graff and Winter, have contended that a different result is compelled by Union National Bank of Wichita v. Mayberry, 216 Kan. 757, 533 P.2d 1303 (1975). In Mayberry, we held that a person subject to a voluntary conservatorship could change the designated payable-on-death beneficiary of savings bonds without the prior approval of the district court. However, Mayberry is not based upon any distinction between real and personal property, but upon the distinction between testamentary and inter vivos dispositions of property. The changing of the payable-on-death beneficiary designation in Mayberry was permissible because the transaction was testamentary in nature and, therefore, did not contravene the conservator’s obligation to manage the estate during the conservatee’s lifetime. 216 Kan. at 761; Nolte, 226 Kan. at 449. The Court of Appeals properly concluded that a voluntary conservatee may not dispose of personal property by inter vivos conveyance during the conservatorship without court approval.
However, the Court of Appeals erred in concluding that the penalty provisions of K.S.A. 59-1704 were not applicable in the present case. K.S.A. 59-1704 provides:
“Liability for conversion. If any person embezzles or converts to his or her own use any of the personal property of a decedent or conservatee, such person shall be liable for doublé the value of the property so embezzled or converted.”
Conversion is the unauthorized assumption or exercise of a right of ownership over goods or personal chattels belonging to another to the exclusion of the other’s rights. Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987); Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, 701 P.2d 934 (1985). The intent required for conversion is satisfied merely by the use or disposition of goods belonging to another. Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974); Farmers State Bank v. Haflich, 10 Kan. App. 2d 333, 699 P.2d 553 (1985). Good faith is not a defense to a charge of conversion. Farmers Grain Co. v. Atchison, T. & S.F. Rly. Co., 121 Kan. 10, 11, 245 Pac. 734 (1926). Clearly, the co-conservators converted $49,000 of the $96,000 in mutual funds to their own use. The Court of Appeals, in In re Estate of Engels, 10 Kan. App. 2d 103, 107-08, 692 P.2d 400 (1984), held that the penalty provisions of K.S.A. 59-1704 are mandatory, regardless of the conservator’s putative good faith.
In the present case, the Court of Appeals concluded that the penalty provisions of K.S.A. 59-1704 should not be imposed because the conservators did not solicit the gifts nor were the gifts a result of undue influence, fraud, coercion, or duress.
In Engels, the Court of Appeals said:
“Ehlebracht’s use of estate funds for his personal benefit was conversion, regardless of his professed belief that he could spend the money. See Speer v. City of Dodge City, 6 Kan. App. 2d 798, ¶ 1, 636 P.2d 178 (1981). Under the provisions of 59-1704, once a conversion by a fiduciary is found, the fiduciary ‘shall be liable’ for double the amount converted. The legislature’s use of the word ‘shall’ indicates to us that the penalty is mandatory.
“In Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 (1973), an innocent surety was held not liable for the penalty because 59-1704 was intended to punish wrongdoers. In construing 59-1704, the court declared that it is exemplary in character. 211 Kan. at 403.
“ ‘Exemplary or punitive damages go beyond actual or compensatory damages in that they are imposed, not because of any special merit in the plaintiff s case, but to punish the wrongdoer for his willful, malicious, oppressive or unlawful acts and to deter and restrain others from similar wrongdoings.’ 211 Kan. 397, Syl. ¶ 4.
“Thus the purpose of the statute is to punish the fiduciary who converts funds and to warn others that the conduct is improper. The failure to impose the penalty neither punishes Ehlebracht nor deters other fiduciaries from similar misconduct. The trial court erred in not imposing the conversion penalty.” 10 Kan. App. 2d at 108.
We agree. The conservators may have been innocent of undue influence, fraud, coercion, or duress, but conversion does not require any of these activities. Rather, as we previously noted, conversion arises from the unauthorized disposition of the personal property of another, regardless of the converter’s good faith. We are urged by the special administrator to apply the conversion penalty to the total amount of $92,000.00 in mutual funds received by the Winter and Graff families. K.S.A. 59-1704 specifically applies to funds converted to one’s own use and would therefore apply only to the $49,000.00 in gifts that went directly to the co-conservators. The gifts to other family members would not be subject to the conversion penalty. We conclude that the trial court and the Court of Appeals erred in failing to impose the conversion penalty on the gifts of mutual funds to the co-conservators.
The special administrator also makes three allegations of error of omission on the part of the Court of Appeals. He argues, first, that the Court of Appeals erred in failing to specifically order the co-conservators, Graff and Winter, to personally refund the invalidated gifts to the probate estate. The special administrator argues that, under the waste provisions of K.S.A. 59-1703, the conservators (or their bonding company) should be personally liable for the invalidated gifts and, second, that the Court of Appeals erred in failing to require the payment of statutory interest upon each invalidated gift. Finally, he argues that other gifts and expenses incurred by the co-conservators/co-executors, Graff and Winter, in the amount of $2,603.47 should also be invalidated. The special administrator-argues that, because the $2,603.47 in gifts and expenses were incurred after May 27,1983, the date on which the trial court ruled Marcotte had become incompetent, the gifts and expenses should be invalidated.
We note that the district court, in ruling that a voluntary conservatee may dispose of personal property by inter vivos conveyance without court approval, failed to address the personal liability of Graff and Winter, the imposition of statutory interest, or the $2,603.47 in gifts and expenses incurred after May 27, 1983.
As a general rule, issues raised for the first time on appeal will not be reviewed. However, we have recognized three exceptions to that general rule:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“(2) cases where consideration of a question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“(3) cases where a judgment of a trial court may be upheld on appeal even though the court may have relied on the wrong ground or assigned a wrong reason for its decision.” Johnson v. Kansas Neurological Institute, 240 Kan. 123, 126, 727 P.2d 912 (1986).
The gifts and expenses in question are listed in the annual accounting filed by the conservators. In addition, the co-conservator, Charles Winter, testified that he had made the payments and what they were for. The payments consisted of:
1. $457.00 to purchase a bed for Mr. Marcotte’s sister, Lena;
2. $300.00 to St. Peter’s Parish;
3. $75.00 for a hearing examination for Lena Marcotte;
4. $374.00 for the purchase of a hearing aid for Lena Marcotte;
5. $1,182.00 for airline tickets for co-conservators and their spouses to visit Uncle Oscar to help celebrate his 50th wedding anniversary; and
6. $214.00 for a rental car.
Clearly, these payments are “proved or admitted facts” and the extent of the co-conservators’ liability for the payments is a question of law and, therefore, comes within the first exception recognized in Johnson.
The purpose of a conservatorship is to control, manage, and preserve the assets of the estate during the conservatee’s life. The duties of a conservator are specifically set out by statute. K.S.A. 59-3019 provides, in part:
“A conservator shall be subject to the control and direction of the court at all times and in all things. Said conservator shall ... (3) pay the reasonable charges for the support, maintenance, and education of the conservatee in a manner suitable to the conservatee’s station in life and the value of the conservatee’s estate; ... (4) pay all just and lawful debts of the conservatee and the reasonable charges incurred for the support, maintenance, and education of the conservatee’s spouse and children; (5) possess and manage the estate, collect all debts and claims in favor of the conservatee, or with the approval of the court compromise the same; ... (7) invest all funds, except such as may be currently needed for the debts and charges aforesaid and the management of the estate . . . .”
K.S.A. 59-1703 provides, in part:
“No fiduciary shall make a profit by the increase, nor suffer loss by the decrease or destruction without such fiduciary’s fault, of any part of the estate ....
“A fiduciary shall not be accountable for debts due the decedent or conservatee which remain uncollected without fault on such fiduciary’s part, but where a fiduciary neglects or unreasonably delays to raise money by collecting debts or selling property, or neglects to pay over the money in his or her hands and by reason thereof the value of the estate is lessened, or unnecessary costs, interest, or penalties accrue, or the persons interested suffer loss, the same shall be deemed waste and the fiduciary shall be charged in his or her account with the damages sustained. . . .
“Any sale, lease or mortgage to the personal representative, his or her spouse, child or grandchild, agent or attorney in fact, or to any corporation in which he or she has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable unless: (1) The will or a contract entered into by the decedent expressly authorized the transaction; or (2) the transaction is approved by the court after hearing upon notice to interested persons.”
Black’s defines a fiduciary capacity as:
“One is said to act in a ‘fiduciary capacity’ or to receive money or contract a debt in a ‘fiduciary capacity,’ when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Black’s Law Dictionary 753 (4th ed. rev. 1968).
Unquestionably, these payments were not made for the benefit of the conservatee nor do they represent necessary expenses of the conservatorship. In making these payments, the co-conservators violated the statutory duty imposed on them by K.S.A. 59-3019. As such, the payments constitute waste for which the conservator is liable to the estate for the $2,603.47, together with interest from the date of payment as provided by K.S.A. 16-201.
The special administrator argues that the district court and the Court of Appeals also erred in simply requiring the co-conservators to return the gifts to the estate or, in lieu thereof, to refund the original purchase price of the mutual funds. The special administrator correctly points out that this allows the conservators to benefit from their improper acts by keeping the profits they made over the years from the mutual funds. The co-conservators, by purchasing the gifts for themselves and others, failed to invest the funds as required by K.S.A. 59-3019(7), thus depriving the estate of the use of these funds. In addition, the co-conservators had a “substantial conflict of interest” as to these transactions and, pursuant to K.S.A. 59-1703, all such transactions are voidable unless approved by the court after notice to interested parties. The payments by the co-conservators to purchase the gifts were unauthorized and violated their duty and obligation to conserve and invest these very funds for the benefit of the estate.
The conservatorship statutes require that a conservator must exercise control over the estate and conserve the assets of the conservatorship. Here, the gifts resulted in personal gain to the co-conservators and their families, and diminished the estate. In Rathbun v. Hill, 187 Kan. 130, Syl. ¶ 6, 354 P.2d 338 (1960), the court said:
“The general rule that executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility is as much a principle of ethics and practical honesty as it is of law.”
The co-conservators are therefore liable for the resulting loss to the estate. That loss is the amount paid by the co-conservators to purchase the gifts, together with interest on that amount from the date of payment as provided by K.S.A. 16-201.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court is reversed and remanded with directions to enter judgment consistent with this opinion. | [
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Per Curiam:
This is an original attorney discipline proceeding, filed by Bruce E. Miller, Disciplinary Administrator, against Frederick M. Jantz, of Garnett, Kansas, an attorney duly admitted and licensed to practice law in the State of Kansas. The facts are not disputed.
On May 4, 1987, Jantz deposited $8,534.61 in his attorney trust account at the Garnett State Savings Bank. This money had come to the attorney through protracted litigation and was to be held for his client, the John Deere Company, until various other aspects of the lawsuit were resolved. Jantz later withdrew the funds from his trust account and converted them to his personal use. This conduct was concealed from the client. Judge James J. Smith questioned Jantz on October 7, 1987, concerning the John Deere funds and Jantz told the judge that he had two trust accounts. On October 29, 1987, Judge Smith again questioned Jantz and Jantz at first provided a satisfactory explanation. Later during that conversation, however, Jantz admitted that he did not have the client’s money in any account. Judge Smith advised Jantz that these matters would be reported to the county attorney and to the disciplinary administrator. Judge Smith’s letter to the disciplinary administrator, dated that same date, forms the basis for this proceeding.
On November 5,1987, Judge Smith entered an order directing Jantz to pay the John Deere funds to the Clerk of the Anderson County District Court. On November 18 and 20, Jantz delivered payments to the Clerk totalling $8,534.61. The client funds have thus been fully restored.
A formal hearing was held before a disciplinary panel of the State Board for Discipline of Attorneys on September 16, 1988. Respondent appeared in person and by counsel. By answer, he admitted the charges filed against him by the disciplinary administrator. He did not dispute the charges, but offered substantial evidence in mitigation. The panel found that Jantz, by his actions, had violated DR 1-102 (1987 Kan. Ct. R. Annot. 123) and DR 9-102 (1987 Kan. Ct. R. Annot. 157-58) by withdrawing client funds in the sum of approximately $8,500 from his trust fund, and by converting said funds to his personal use; and that he had violated DR 7-102 (1987 Kan. Ct. R. Annot. 147) in concealing his misconduct from his client and in making false statements to Judge Smith.
The background information comes largely from the evidence in mitigation offered by respondent at the panel hearing. The panel summarized it in a unanimous report as follows:
“10. Prior to attending law school at the University of Kansas, Respondent was a life-long resident of McPherson, Kansas. Mr. Jantz’s father owned the John Deere dealership in McPherson, and Respondent’s representation of John Deere company stemmed from that relationship. Despite his admitted conversion of trust funds, Respondent continues to be retained by John Deere Company.
“11. After the death of Clark Howerton [Mr. Jantz’s senior law partner] in 1982, Respondent purchased a large older home, antique furniture, and two antique cars. Mr. Jantz described his relationship with Mr. Howerton as personal and dependent, and Mr. Jantz described the loss of Mr. Howerton as deeply painful. However, Respondent appears to have believed that the acquired law practice would support a lifestyle in excess of his actual means.
“12. Respondent’s father was diagnosed as having cancer in October, 1980, but the elder Jantz survived until August 16,1987. The added complication of a brain tumor was discovered during November, 1984, and Respondent began making frequent weekend trips to the family residence in McPherson. As his father’s condition worsened, Respondent visited the family each weekend and began to disregard his law practice. By the date of his father’s death, Mr. Jantz testified that his law practice could not support office overhead let alone his personal debts. Against this backdrop, Mr. Jantz began drawing client funds from his trust account.
“13. When confronted by Judge Smith during October, 1987, Mr. Jantz described his reaction as severe depression and embarrassment. Mr. Jantz remained in his residence for several days until Judge Smith, W. H. Craig of Garnett State Savings Bank, and R. G. Fraker, a Garnett clothier, appeared at his door. Those gentlemen were concerned about Respondent’s state of mind, and they urged him to face facts and deal with his problems. That evening, Mr. Jantz went to his office and prepared a complete list of his debts. He met with Judge Smith the following morning to discuss corrective action. An appointment was made that day with Carol George of the Southeast Kansas Mental Health Center. Respondent has met with Ms. George on a weekly basis to address [his] problems . . . and he plans to continue with counselling on an indefinite basis.
“14. Judge Smith contacted Richard O. Skoog to request representation of Mr. Jantz in disciplinary proceedings. Messrs. Fraker and Craig offered to manage his business accounts and expenses. Mr. Jantz removed himself as signatory from his general office account, giving control of his receipts and accounts payable to those businessmen. Arrangements were made to surrender his residence to the mortgagee by deed in lieu of foreclosure. Various furnishings and other personal property have been sold to liquidate other creditor claims, and Mr. Jantz has agreed to pay any deficiency resulting from the. resale of his home. Approximately $58,000.00 in debts have been paid to date, and Respondent believes that his law practice will support the payment of other indebtedness in full. He expects to owe no more than ten or fifteen thousand dollars by July, 1988.
“15. Mr. Jantz has taken steps to staff his law office within his means. A full-time secretary was hired recently, and Mr. Jantz has disposed of an office computer which is not essential to his practice.
“16. Respondent has apologized to Judge Smith and members of the Garnett bar for his misconduct and deceit. Judge Smith has recently appointed Respondent to serve as special prosecutor in five matters in which the [County] Attorney has conflicts of interest.
“17. Mr. Jantz reported his misconduct to Judge [Leighton]’ Fossey and requested extended supervision of his law practice, including full disclosure of general account and trust account transactions with unrestricted access to his office files. Judge Fossey will retire from the bench in late 1988, and he has volunteered to monitor and audit Respondent’s law practice. Mr. Jantz welcomes the active involvement and oversight in his personal and professional affairs by Judges Fossey and Smith and Messrs. Craig and Fraker.
“18. The testimony of Robert W. Wise [an attorney of McPherson, Kansas] is compelling. Mr. Wise is an experienced and respected member of the bar who has represented the Jantz family for 25 years and has known Respondent since childhood. Mr. Wise considers Mr. Jantz to be intelligent, responsible, and capable of conducting a successful law practice.
“19. Mr. Jantz has demonstrated that he is contrite and determined to permit no recurrence of the events leading to this proceeding. Apart from the offenses established herein, there is no evidence that Respondent is unfit or incompetent to practice law. On the contrary, the community of Garnett has demonstrated strong support for Mr. Jantz, and he testified that his practice has grown substantially in recent months.”
The conclusions of law and recommendations of the hearing panel are extensive and carefully drawn. The panel considered this an unusual and unique case, and for the reasons stated in their report, the panel recommends that respondent be disciplined by suspension, but that he be placed on probation under strict supervision for a period of two years, and be permitted to practice law during that time. We have previously disposed of disciplinary cases by imposing suspension, either for a fixed period of time or for an indefinite time, but we have not used probation nor have we “suspended” the execution of such suspension. However, we are inclined to follow the recommendations of the panel in this instance. Therefore, we set forth the conclusions and recommendations of the panel in full. They read as follows:
“CONCLUSIONS OF LAW AND RECOMMENDATIONS
“1. Respondent is guilty of serious misconduct including conversion of client funds and lying to the bench. Violations of DR 1-102, 7-102, and 9-102 are admitted by Mr. Jantz. Suspension from the practice of law is the customary and appropriate discipline for such conduct.
“2. Respondent has presented evidence of mitigating circumstances which is undisputed and persuasive. Mitigating factors do not justify or excuse professional misconduct, and Respondent has made no suggestion to the contrary. The privilege of practicing law presupposes that a lawyer is capable of recognizing misconduct and its impact on the profession. The imposition of discipline is automatic in this case, but the degree and duration of punishment must serve the interest of justice. With those qualifications, the hearing panel concludes that this matter is unique for the following reasons:
“a. Open and candid admission of misconduct to the client, bench and bar;
“b. Active cooperation with all participants in the disciplinary process;
“c. Prompt and voluntary repayment of the misappropriated funds;
“d. Confinement of misconduct to a brief interval of severe emotional distress (abated prior to the imposition of discipline and monitored by professional counselling of indefinite duration);
“e. Initiation and implementation of a suitable and adequate program of rehabilitation prior to the commencement of disciplinary proceedings and not imposing administrative burdens on the Supreme Court or the Disciplinary Administrator;
“f. Support of the rehabilitation effort by local judges and other members of the local bar;
“g. Acceptance of continued professional practice by clients;
“h. Confirmation from a reliable source, in this case, Robert W. Wise, former chairman of the KBA Ethics Committee, that Respondent can be expected to meet all professional obligations in the future in a manner worthy of the profession; and
“i. Unanimous conviction of the hearing panel and the Disciplinary Administrator that rehabilitation of Respondent will serve the interests of the profession, and that Respondent’s demeanor and conduct are sincere and uncontrived.
“3. Faced with this unique set of circumstances, and recognizing the March 1, 1988, amendment of Supreme Court Rule 203 [see Rule 203(a)(5), Rules Relating to Discipline of Attorneys, March 1,1988], the panel recommends that the Court enter and publish an Order of Discipline of Frederick M. Jantz on the following terms:
“a. That Respondent be disciplined by suspension from the practice of law pursuant to Supreme Court Rule 203(a)(2), said discipline being probated on the following terms and conditions pursuant to Supreme Court Rule 203(a)(5);
“b. That Respondent’s practice of law be supervised by the Honorable Leighton A. Fossey, Administrative Judge, Sixth Judicial District of the State of Kansas, or his designee, for a term of two (2) years after the date of this Order in the manner specified in writing from time to time by the supervising Judge or designee to the Disciplinary Administrator;
“c. That Respondent cooperate with all lay persons, health care providers, and other members of the bench and bar as may be required or approved by the supervising judge in the interest of completing his personal and professional rehabilitation;
“d. That upon report of any misconduct or non-compliance with these orders by 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 as circumstances may require; and
“e. Upon receipt of affidavits by Respondent and the supervising judge that Respondent has complied fully with the terms and conditions of this Order and that supervision is no longer necessary, the Disciplinary Administrator shall advise the Supreme Court in writing that the discipline of Respondent has terminated. If the supervising judge declines or fails to file an affidavit of compliance, the Disciplinary Administrator shall investigate to determine whether Respondent should be fully reinstated. In that event, the Disciplinary Administrator may recommend reinstatement, continuation of discipline on specified terms and conditions, or that other discipline be imposed.
“4. The hearing panel wishes to emphasize that the suspension of discipline is appropriate in exceptional cases only. The findings and recommendations of this panel are not intended to establish any form of precedent or standard for future proceedings involving any member of the bar. The ultimate considerations which influence this panel are (A) that immediate discipline of Respondent will not serve the interests of justice, and (B) that adequate safeguards have been initiated by Respondent to insure his full compliance with the disciplinary rules and orders of the Court. The Disciplinary Administrator has made no recommendation for the discipline of Mr. Jantz, and the hearing panel believes that the purposes of Supreme Court Rule 203(a)(5) are served in this instance. It is therefore respectfully recommended that the discipline of Respondent be abated to the extent set forth herein.”
We agree with the hearing panel that this case is unique for several of the stated reasons. The conduct complained of here took place within a very short period of time; there were no complaints against respondent prior to these incidents. These took place when respondent was under severe emotional distress, caused by the terminal illness of his father and his own financial problems. Mr. Jantz admitted his misconduct to the judge promptly. He has admitted the misconduct to his client and to the bar where he practices. He made prompt restitution of the funds, which were not at that time due the client but were paid by him into the hands of the clerk of the district court, to await further order of the court. By the time disciplinary proceedings were underway, Jantz had already made restitution, had commenced professional counselling (which is continuing), and had prepared a plan for retirement of his debts and financial obligations. We were told at the time of oral argument that he has made a substantial reduction of his obligations since the panel hearing in March of this year. His practice is growing, indicating that he is accepted by the members of the bench and bar as well as the residents of the community where he resides and practices.
We agree with the hearing panel that respondent’s conduct is indeed serious. The invasion by an attorney of client funds held in a trust account is a violation of the trust which is imposed upon every attorney. Similarly, the making of false statements by an attorney to a judge is a violation of the trust which is imposed upon attorneys by the Canons and which is expected of all members of the bar. We have rarely failed to disbar or suspend any attorney whose professional misconduct parallels that of the respondent. Nevertheless, the majority of this court is inclined to follow the recommendations of the hearing panel in this case. The help and guidance given by Judges Smith and Fossey and by Messrs. Fraker and Craig indicate their sincere interest in Mr. Jantz, and he has responded by taking substantial steps toward rehabilitation.
It is the Order of the Court that Frederick M. Jantz be and he is hereby disciplined by being indefinitely suspended from the practice of law; however, that discipline is hereby suspended and probated, and respondent is authorized to continue the practice of law under the terms and conditions proposed by the hearing panel and included within paragraphs Nos. 3 a, b, c, d, and e, set forth above, which terms and conditions are made a part of this dispositional order. We have contacted the Honorable Leighton A. Fossey, and he has agreed to attempt to supervise respondent’s practice of law. Respondent is required to cooperate with Judge Fossey; to make all of his files, bank statements, books, and records available to Judge Fossey at any and all times; and to pay any and all travel, telephone, or other expenses necessarily incurred by Judge Fossey in carrying out his supervisory duties.
Probation and supervision shall continue for a period of two years. Upon receiving the report of the Disciplinary Administrator required by paragraph 3 e above, either at the end of said two year period or in the interim, this court shall, upon notice to the respondent, make such order as justice and equity may require.
It is Further Ordered that this order be published in the Kansas Reports, and that respondent pay the costs of this proceeding. | [
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The opinion of the court was delivered by
Holmes, J.:
The Kansas Department of Revenue, Division of Vehicles, (the Department) appeals from an order of the district court overruling an administrative decision which denied plaintiff, Charles R. Vandever, the renewal of his Kansas driver’s license. The Court of Appeals, in an unpublished opinion filed April 21,1988, agreed with the district court’s determination that plaintiff could safely operate a motor vehicle and remanded the case for further proceedings. We granted the Department’s petition for review.
The facts are not disputed. In January 1985, at the age of 71, Charles R. Vandever applied for renewal of his Kansas driver’s license. Vandever has stipulated that his best-corrected visual acuities are 20/100 in his left eye and 10/200 in his right eye. After his renewal application was denied, Vandever sought and obtained an administrative hearing, because he did not meet the minimum visual acuity required by regulation in order to be eligible for a license, the Department affirmed its prior decision.
Vandever filed a petition in district court on May 31, 1985, seeking a de novo judicial review. On January 23, 1987, the district court heard evidence introduced by Vandever that he would suffer hardship without renewal of his driver’s license and that he was capable of driving safely despite his poor eyesight. After denying the Department’s motion for dismissal at the conclusion of the evidence, the district court found that the plaintiff was “capable of driving a vehicle safely” even though his visual acuity falls below 20/60 in each eye. The court reversed the Department’s denial of Vandever’s request to renew his license and directed the Department to grant him a license with the restrictions that he drive only during daylight hours and within a 35-mile radius of his home.
The Department appealed. The Court of Appeals held that the district court improperly admitted evidence of the hardship plaintiff would suffer if his driving privileges were not renewed. However, it found that the error was harmless. The Court of Appeals also held that the district court correctly considered evidence of whether the plaintiff could safely operate a vehicle, despite the fact that his vision did not meet the Department’s regulatory standards. The court then held that the district court had no authority to direct the Department to grant a license with restrictions specified by the court. The court reversed and remanded for a determination by the district court of whether Vandever is entitled to an unrestricted license. This court granted review.
The specific issue is whether the district court may order the issuance of a driver’s license when the applicant has failed to pass the eyesight examination required by statute and the regulations of the Department. Kansas statutes delegate to the secretary of revenue the authority to establish standards for the safe operation of motor vehicles. The Motor Vehicle Drivers’ License Act reads in part:
“The secretary of revenue shall adopt rules and regulations establishing qualifications for the safe operation of the various types, sizes and combinations of vehicles in each class of motor vehicles established in subsection (a).” K.S.A. 8-234b(d).
K.S.A. 8-237 states:
“The division of vehicles shall not issue any driver’s license to any person:
“(f) Who is required by the motor vehicle drivers’ license act to take an examination, unless the person has successfully passed the examination.”
K.S.A. 1987 Supp. 8-247 deals with expiration of licenses and examinations required for renewal. It provides in part:
“(d) Every driver’s license shall be renewable on or before its expiration upon application and payment of the required fee and successful completion of the examinations required hy subsection (e). Application for renewal of a valid driver s license shall be made to the division in accordance with rules and regulations adopted by the secretary of revenue. . . . Upon satisfying the foregoing requirements of this subsection, and if the division makes the findings required by K.S.A. 8-235b and amendments thereto for the issuance of an original license, the license shall be renewed without examination of the applicant’s driving ability. . . .
“(e)(1) Prior to renewal of a drivers license, the applicant shall pass an examination of eyesight and a written examination of ability to read and understand highway signs regulating, warning and directing traffic and knowledge of the traffic laws of this state. Such examination shall be equivalent to the tests required for an original driver’s license under K.S.A. 8-235d and amendments thereto. A driver’s license examiner shall administer the examinations without charge, and shall report the results of the examinations on a form provided by the division, which shall be submitted by the applicant to the division at the time such applicant applies for license renewal.
“(2) In lieu of the examination of the applicant’s eyesight by the examiner, the applicant may submit a report on the examination of eyesight by a physician licensed to practice medicine and surgery or by a licensed optometrist. The report shall be based on an examination of the applicant’s eyesight not more than three months prior to the date the report is submitted ....
“(4) The division shall determine whether the results of the written examination and the eyesight reported are sufficient for renewal of the license, and if the results of either or both are insufficient, the division shall notify the applicant of such fact and return the license fee. In determining the sufficiency of an applicant’s eyesight, the division may request an advisory opinion of the medical advisory board, which is hereby authorized to render such opinions.” (Emphasis added.)
Clearly, the legislature has delegated broad authority to the secretary of revenue over the particulars of driver’s license qualifications. Pursuant to the authority granted by K.S.A. 8-234b(d), the secretary of revenue adopted a regulation pertaining to vision requirements for licensees. In 1985, when plaintiff applied for renewal of his license, K.A.R. 92-52-1 read:
“92-52-1. Vision standards for drivers. The division of vehicles will use the following vision standards for driver’s license applicants:
“(a) Any applicant testing 20/40 or better in each eye separately at the examination station shall meet the vision requirements. Any applicant failing to meet this requirement shall be given a vision form and referred to a vision specialist of their choice.
“(b) Any applicant who has received a vision report from a vision specialist shall have 20160 or better vision with or without corrective lens in at least one eye in order to be eligible to be issued a drivers license.
“Applicants failing to meet any of the above standards may request an administrative review by the director of vehicles.” (Emphasis added.)
Although the regulation was amended effective May 1, 1987, the minimum visual standard remains the same.
The statutes provide for administrative review of a decision by the Department not to renew a license for certain reasons. K.S.A. 1987 Supp. 8-247(e)(6) provides in part:
“Any [renewal] applicant who is denied the renewal of such person’s driver’s license because of a mental or physical disability shall be afforded a hearing in the manner prescribed by subsection (b) of K.S.A. 8-255.”
K.S.A. 1987 Supp. 8-255(b) sets forth the procedure to be followed in requesting administrative review and the procedure to be followed at the hearing.
Finally, the Act also provides for the right to appeal an adverse administrative decision to the district court. K.S.A. 8-259(a), as it was worded at the time Vandever filed his petition for judicial review, read as follows:
“(a) Any person denied a license or whose license has been canceled, suspended, or revoked by the division . . . shall have the right to file a petition within sixty (60) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days’ written notice to the division and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this act: . . . Provided further, The trial on appeal as herein provided for shall be a trial de novo . . . .” (Emphasis added.)
Although the statute has been amended, the amendments are not pertinent to this appeal.
The controlling issue is whether the district court may ignore the vision standards adopted in K.A.R. 92-52-1 in determining whether plaintiff is entitled to renewal of his driver’s license.
Plaintiff does not challenge the validity of K.A.R. 92-52-1. Instead, he argues that the regulation’s authorizing statute, K.S.A. 8-234b(d), sets forth as an overall goal the safe operation of motor vehicles. He reasons, and the district court apparently agreed, that if plaintiff can safely operate a motor vehicle regardless of his visual acuity, the minimum vision standard embodied in the regulation may be ignored. We do not agree.
Regulations have the full force and effect of law if they are duly adopted pursuant to statutory authority for the purpose of carrying out the policy declared by the legislature in the statutes. Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 100, 697 P.2d 1279 (1985); Carpenter v. Johnson, 231 Kan. 783, 789, 649 P.2d 400 (1982); Goertzen v. State Department of Social & Rehabilitation Services, 218 Kan. 313, Syl. ¶ 1, 543 P.2d 996 (1975); State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, Syl. ¶ 3, 417 P.2d 255 (1966).
Plaintiff does not contend that the regulation establishing the minimum visual acuity is beyond the scope of the Department’s statutory authority, nor that it was adopted without following the proper statutory procedure. Instead, he argues that the administrative review provided for by the regulation itself would be meaningless unless it is for the purpose of allowing exceptions to the regulation’s vision requirement. He argues that the regulation merely creates a rebuttable presumption which may be overcome by an applicant who demonstrates that he can safely operate a vehicle. This construction is not supported by the language of the regulation read in the context of the pertinent statutes and is overly broad. The purpose of the administrative review is to ensure a fair determination of disputed facts. Here the key fact, plaintiff s visual acuity, was undisputed.
The Department was required to follow its own regulations and if it had failed to do so, the action would have been unlawful. See Tew, 237 Kan. at 100; Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, Syl. ¶ 1, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973); Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 317, 510 P.2d 1200 (1973), and cases cited therein. Likewise, it was improper for the district court to ignore the regulation by resorting to the general policy of “safe operation” set forth in the authorizing statute.
K.S.A. 8-234b(d) requires the secretary of revenue to adopt rules and regulations to implement the provisions of the Motor Vehicle Driver’s License Act, and K.S.A. 1987 Supp. 8-247(e) requires every applicant for a renewal driver’s license to pass an eyesight examination. Obviously, minimum standards for passing the eyesight examination must be established and adhered to if the statutes are to be properly applied. Absent any showing or contention that the visual acuity standards of K.A.R. 92-52-1 are unreasonable, arbitrary, unnecessary, or invalid, the regulation sets the minimum standard which may not be deviated from by application of a broad general concept of safe driving ability or by a showing that the driver may be capable of driving a vehicle safely.
Here, the sole issue before the district court was whether the plaintiff met the minimum vision standard required by the Department’s regulation. Whether plaintiff could safely operate a motor vehicle was not the issue, even though evidence introduced before the district court would support such a factual finding. As pointed out by the Court of Appeals in Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 758 P.2d 226, rev. denied 243 Kan. 777 (1988), even in cases where de novo judicial review of administrative action is authorized by statute, the review is nevertheless an appeal and is ordinarily limited to the issues raised before the administrative agency.
Rased upon the undisputed evidence that plaintiff did not meet the visual acuity standards required by the statutes and regulations, we conclude the district court erred in failing to sustain the Department’s motion to dismiss the action at the close of the evidence.
The judgment of the district court is reversed and the judgment of the Court of Appeals is also reversed.
Six, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an original action in quo warranto and mandamus filed in the Supreme Court by the Attorney General, the Secretary of Corrections, and the Director of the Kansas State Penitentiary. The plaintiffs challenge the decision of the Sedgwick County District Court which denied motions to quash two subpoenas duces tecum. The subpoenas in question directed officials of the Department of Corrections to produce documents pertaining to prison conditions at Kansas State Penitentiary at Lansing (K.S.P.) and the Kansas State Industrial Reformatory (K.S.I.R.).
Plaintiffs are Robert T. Stephan, Attorney General; Roger V. Endell, current Secretary of Corrections; and Steven J. Davies, Director of K.S.P. In their petition they name as defendants the Honorable Paul W. Clark, Judge of the Criminal Department, Eighteenth Judicial District, Sedgwick County; and Clark V. Owens II, District Attorney for the Eighteenth Judicial District. Also named are four individuals who are criminal defendants involved in sentencing proceedings in Sedgwick County. Tony R. Roat and Tony W. Kennedy are presently incarcerated at K.S.P. and have filed motions for modification of their sentences. Their motions were consolidated for hearing before Judge Clark. Virgil A. Faust and his codefendánt Horace House pled guilty to charges and are awaiting sentencing by Judge Clark.
The facts leading to the filing of this action are not in dispute. On July 16, 1987, a Department of Corrections official received a subpoena duces tecum from the Sedgwick District Court in the case of Tony R. Roat directing production of “any and all Federal guidelines, reports, and documents obtained by the Office of the Secretary of Corrections during 1987 relating to inmate conditions at Lansing Penitentiary.” The official filed a motion to quash the subpoena, asserting inter alia that the material sought was irrelevant to the case pending against Tony R. Roat, that Roat lacked standing to raise issues concerning inmate treatment at the penitentiary, and that the issue was not ripe for adjudication.
Subsequently, in the case of Virgil A. Faust, then Secretary of Corrections Richard D. Mills received a subpoena duces tecum with the following directions:
“Please bring with you all reports from the Department of Justice regarding prison conditions at Lansing Penitentiary and KSIR, all correspondence between the Department of Justice and the Department of Corrections or other attorneys or the Kansas Legislature or subcommittees regarding the conditions at Lansing Penitentiary and KSIR, and all material, reports, memoranda or other information provided to the Department of Justice, Kansas Legislature or subcommittees regarding conditions at Lansing Penitentiary or KSIR.”
The Secretary of Corrections filed a motion to quash that subpoena duces tecum on or about December 1, 1987.
In a hearing consolidating the cases, Judge Clark denied the motions to quash the subpoenas. The plaintiffs then filed this action on January 14, 1988, seeking an order of mandamus or quo warranto directing Judge Clark to quash the subpoenas duces tecum, or a peremptory order of mandamus pursuant to K.S.A. 60-802(b).
In response to plaintiffs’ further request, this court on January 22, 1988, issued an order restraining defendants from enforcing the subpoenas and from securing any similar subpoenas pending further orders of this court. The order also stayed proceedings in Sedgwick District Court relative to the subject matter of the petition.
Defendant Clark V. Owens, II filed a response admitting all of the plaintiffs’ allegations, adopting their arguments and legal authorities, and concurring in the relief sought by them. As defendant Owens has aligned himself with the position of the plaintiffs, he will be considered to be in the same category as the named plaintiffs. Defendants Kennedy, Roat, Faust, and House (hereinafter defendants Kennedy, et al.) filed a joint response and supporting memorandum on February 10, 1988. Judge Clark filed a separate response and supporting memorandum on the same date.
All parties urged this court to accept jurisdiction of the action and on March 7, 1988, this court issued an order doing so. See Mobil Oil Corporation v. McHenry, 200 Kan. 212, 239-241, 436 P.2d 982 (1968), and cases cited therein.
Although the original pleadings filed with this court assert four issues, the broad controlling issue is whether a sentencing court may compel the Department of Corrections to produce documents pertaining to prison conditions at particular correctional institutions to aid the court in deciding whether to sentence a criminal defendant to a term of incarceration pursuant to K.S.A. 1987 Supp. 21-4603(2)(a), or as an aid in deciding whether to modify a previous sentence pursuant to K.S.A. 1987 Supp. 21-4603(3). We conclude it may not and that the subpoenas in question should have been quashed.
K.S.A. 1987 Supp. 21-4603 provides in pertinent 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.”
The plaintiffs initially contend that a judge of the district court, in sentencing a felon to the custody of the Secretary of Corrections, may not determine the place of confinement. They assert that both statutory and case law are clear that only the Secretary of Corrections has the authority to confine a person to any particular correctional institution or facility under the Secretary’s supervision. K.S.A. 75-5206; K.S.A. 21-4609; State v. Bennett, 240 Kan. 575, 577, 731 P.2d 284 (1987); State v. Fowler, 238 Kan. 326, 333-35, 710 P.2d 1268 (1985). In Bennett, in response to the appellant’s complaint that he was not sentenced in a manner that would further vocational rehabilitation, this court said:
“It is the sentencing court th,at determines the length of the defendant’s incarceration. While that court can make recommendations regarding rehabilitation, the sentencing court cannot determine where the defendant will serve his time. That decision is statutorily to be decided by the Secretary of Corrections in the exercise of his discretion. Therefore, the defendant’s complaint lies not with the sentencing court but with the Secretary of Corrections. The issue of whether the Secretary of Corrections has abused the exercise of his discretion is not a justiciable issue on this direct appeal from the sentence imposed. The court has no jurisdiction to consider it on this appeal.” 240 Kan. at 577. (Emphasis added.)
Defendants Kennedy, et al. and Judge Clark concede that the district court may not direct or determine the place of confinement and that such determination must be made by the Secretary of Corrections.
Plaintiffs next argue that the conditions of confinement at a particular correctional institution are not relevant in a sentencing proceeding. Since the Secretary of Corrections has a variety of options for confining a felon, plaintiffs contend that it is inappropriate for the sentencing court to inquire into conditions at any one of the various institutions that might be designated by the Secretary in the event that the felon is sentenced to his custody.
Defendants Kennedy, et al. point out in response that the court may not knowingly impose an unconstitutional sentence, that K.S.A. 75-5228(a) prohibits incarceration in a correctional institution that is “unsanitary, unsafe or a detriment to human life,” and that the district court has jurisdiction over conditions of confinement to the extent necessary to determine whether confinement is the appropriate sentence to impose. Judge Clark contends that a sentencing court has a duty to allow the defendant to present his entire defense, and that the conditions at a particular institution are relevant to the court’s decision whether to sentence a felon to the custody of the Secretary of Corrections, or in the alternative to place him on probation or assign him to a community corrections program. Judge Clark argues that the issue for consideration by a sentencing court is the most appropriate disposition given the needs of the individual offender, and that prison conditions may be relevant to that determination. He also makes the argument that the trial judge may not sentence a defendant to unconstitutional confinement.
In support of the argument that a trial court may not impose an unconstitutional sentence, the defendants cite K.S.A. 75-5228, which provides in part:
“75-5228. Correctional institutions and jails; standards; inspection; improvements or abandonment of use of jails; when, (a) No person shall be incarcerated in any correctional institution or jail or any part thereof that is unsanitary, unsafe or a detriment to human life. The secretary of corrections shall promulgate advisory standards relating to the sanitation and safety of such institutions and jails.”
K.S.A. 75-5201 et seq. pertain to the powers and duties of the Secretary of Corrections and do not apply to the procedures of the trial court in the sentencing of defendants.
Furthermore, plaintiffs concede that a trial court may not impose an unconstitutional or illegal sentence upon a defendant or confine a defendant under unconstitutional conditions. The issue is not whether a trial court may impose an unconstitutional sentence. All parties agree that it may not. The issue before this court is whether the procedure attempted here was proper in determining the sentence to be imposed pursuant to K.S.A. 1987 Supp. 21-4603(2) or in considering modification of an existing sentence pursuant to subsection (3) of the statute.
While it may be appropriate for the sentencing court to consider the ramifications of incarceration generally for the individual offender, along with other possible dispositions, the sentencing court must assume that the Secretary of Corrections will carry out his or her statutory and constitutional duties in placing an offender in one of the several correctional institutions under his supervision. See K.S.A. 1987 Supp. 75-5205(a); K.S.A. 1987 Supp. 75-5202(d). The particular conditions at K.S.P. or K.S.I.R. or any other state correctional facility are relevant to the Secretary’s placement decision, but it is inappropriate for a district court at the sentencing stage to compel production of documents pertaining to such conditions for purposes of deciding whether to commit an offender to the Secretary’s custody. See Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972). The conditions at any particular penal institution are not relevant to the decision of the trial court of whether to sentence a defendant to the Secretary of Corrections or impose some other sentence.
K.S.A. 1987 Supp. 21-4601 sets forth the broad objectives and legislative policy to be considered in sentencing defendants. State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986). The statute reads:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
The statute clearly contemplates that the sentencing court shall give consideration not only to the “individual characteristics, circumstances, needs and potentialities” of an individual defendant, but also to “the needs of public safety” and the protection of the general public. The statute provides guidelines for the sentencing court in carrying out its obligations under the statutes. One of the directives in K.S.A. 1987 Supp. 21-4601 provides that “dangerous offenders shall be correctively treated in custody for long terms as needed.” If the offender is a felon and is perceived by the sentencing court to be a dangerous offender, the policy as expressed by the legislature is that the offender will be incarcerated under the direction and supervision of the Secretary of Corrections. If it is determined that the defendant is not a dangerous offender, then the court should balance the individual characteristics, needs, etc. of the defendant against the need for public safety. If such a balancing approach convinces the sentencing court that the need to protect the public may be met without incarceration in an institution under the Secretary of Corrections, the court may impose some other disposition under K.S A. 1987 Supp. 21-4603(2). In either event the conditions at K.S.P. or K.S.I.R. are irrelevant to the determination of the appropriate disposition of any individual case. It is the court’s duty to determine the appropriate disposition under the statute and the length of the sentence, within statutory bounds. It is the duty of the Secretary of Corrections to determine where and under what conditions such sentence, if any, will be served.
The relevancy requirements of subpoenas in aid of civil or criminal litigation have been called “stringent.” See Yellow Freight System, Inc. v. Kansas Commission on Civil Rights, 214 Kan. 120, 125, 519 P.2d 1092 (1974); State ex rel. Wolgast v. Schurle, 11 Kan. App. 2d 390, 394, 722 P.2d 585 (1986). 97 C.J.S., Witnesses § 25(e) summarizes the rule on what type of documents may be required to be produced:
“Generally speaking, a subpoena duces tecum may be used to compel the production of any proper documentary evidence, such as books, papers, documents, accounts, and the like, which is desired for the proof of an alleged fact relevant to the issue before the court or officer issuing the subpoena, provided that the evidence which it is thus sought to obtain is competent, relevant, and material.” (Emphasis added.)
The information sought by the subpoenas duces tecum in the present case was irrelevant and immaterial to the determination of the appropriate sentence and disposition to be adjudged pursuant to K.S.A. 1987 Supp. 21-4603(2) and (3). To the extent that any specific information is relevant to the sentencing in any particular case, it may be obtained as a part of the presentence investigation pursuant to K.S.A. 1987 Supp. 21-4604(2). However, the broad requests here are clearly inappropriate.
Plaintiffs also contend that the sentencing proceedings do not constitute the proper forum or proceeding for an attack upon conditions at K.S.P. or K.S.I.R., asserting that there are specific procedures available to the defendants if that is their goal. We agree. Defendants contend they are not attempting to have conditions at the two institutions declared unconstitutional but merely want information to assist the court in determining the needs of the individual defendants. Assuming plaintiffs’ contentions are valid, K.S.A. 60-1501 et seq. provide specific procedures by which a defendant may attack the conditions of his imprisonment (Hamrick v. Hazelet, 209 Kan. 383, 497 P.2d 273 [1972]), or the constitutionality or legality of the sentence imposed (K.S.A. 60-1507).
For the reasons set forth herein, we hold that the district court erred in not quashing the subpoenas and an order in mandamus should issue. The order of this court entered January 22, 1988, is rescinded insofar as it may have stayed the imposition of sentence in the cases of Faust and House and the determination of the motions to modify the sentences in the cases of Roat and Kennedy. The defendant Paul W. Clark is ordered to quash the subpoenas duces tecum previously issued. | [
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