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Buchele, J.:
This case is a juvenile offender adjudication under the Kansas Juvenile Justice Code (K.S.A. 38-1601 et seq.). T.A.L. appeals the sentence imposed by the court. He argues that K.S.A. 1999 Supp. 38-16,132(d)(2) violates his rights to due process and equal protection by prohibiting a sentencing court in a juvenile case from reducing the minimum term of confinement as defined within the sentencing matrix of the juvenile justice code. We disagree and affirm.
T.A.L. was adjudged a juvenile offender based on charges of aggravated robbery and possession of marijuana. After T.A.L. was denied admission to two youth residential facilities, the court ordered him to serve 24 months in a juvenile correctional facility. T.A.L. made an oral motion to depart from the minimum term of confinement required by the matrix set forth in K.S.A. 1999 Supp. 38-16,129. The motion, however, was denied based on K.S.A. 1999 Supp. 38-16,132(d)(2), which prohibits downward departures.
T.A.L. challenges the constitutionality of K.S.A. 1999 Supp. 38-16,132(d)(2). He points out that the statute prohibits the sentencing court from reducing the minimum term of confinement, but the State and sentencing court may move for an upward departure under K.S.A. 1999 Supp. 38-16,132(a) and (b). T.A.L. contends that the prohibition against downward departures violates due process because it is fundamentally unfair in that the statute deprives him of the right to offer evidence in mitigation of punishment. He also contends the statute violates equal protection by extending rights to the sentencing court and the State which are not extended to him.
T.A.L. appeals from a presumptive sentence given under the juvenile offender case. Under K.S.A. 1999 Supp. 38-1681(c)(2)(A), any sentence within the statutory presumptive sentence for the crime is not reviewable. Charges brought under the juvenile justice code are not criminal charges. Pauley v. Gross, 1 Kan. App. 2d 736, Syl. ¶ 3, 574 P.2d 234 (1977), rev. denied 225 Kan. 845 (1978).
We review the merits of T.A.L.’s appeal to consider whether K.S.A. 1999 Supp. 38-16,132(d)(2) is unconstitutional. Our standard of review on issues of constitutionality of a statute is as follows:
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
T.A.L. first contends that K.S.A. 1999 Supp. 38-16,132(d)(2) violates his constitutional rights to due process. “The standard for determining what due process requires in a particular juvenile proceeding is ‘fundamental fairness.’ ” In re C.A.D., 11 Kan. App. 2d 13, 19, 711 P.2d 1336 (1985). The due process afforded to a juvenile offender in a post-adjudicative setting has been defined as necessarily including “the right to a hearing with counsel, confrontation of witnesses, and the right to examine evidence and present evidence in the offender’s own behalf.” 11 Kan. App. 2d at 21. T.A.L. contends that K.S.A. 1999 Supp. 38-16,132(d)(2) violates his rights to due process because the statute denies him the right to offer evidence in mitigation of punishment by imposing a mandatory minimum sentence.
We find that K.S.A. 1999 Supp. 38-16,132(d)(2) does not violate T.A.L.’s rights to due process. First, the statute does not preclude a juvenile offender from offering evidence in mitigation of punishment. Because the State or sentencing court can move for an upward departure, the juvenile may present evidence showing why an upward departure would be unwarranted. As a result, K.S.A. 1999 Supp. 38-16,132(d)(2) did not prevent T.A.L. from presenting evidence of mitigation of punishment in violation of his due process rights.
The Kansas Supreme Court has held that mandatory minimum criminal sentences for Article 34 crimes in which a firearm is used by a defendant are not per se unconstitutional. See State v. Dickenson, 229 Kan. 152, 621 P.2d 1002 (1981); State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978). Although T.A.L.’s case does not involve a criminal sentence, we conclude that commitment to a juvenile correctional facility for a mandatory minimum term is similar to a mandatory minimum criminal sentence and does not violate a juvenile offender’s right to due process.
T.A.L. further contends that K.S.A. 1999 Supp. 38-16,132(d)(2) violates his equal protection rights by extending rights to the sentencing court and to the State which are not extended to him. T.A.L. contends that because the sentencing court and the State may move for an upward departure, he must be allowed to petition the court for a downward departure.
There is a rational basis for the legislature’s refusal to allow juveniles to petition for downward departure. A goal of the juvenile justice code is to rehabilitate juvenile offenders. K.S.A. 1999 Supp. 38-1601. The Kansas Legislature has determined that this rehabilitation goal may best be served by commitment of a juvenile offender to a minimum term in the juvenile correctional facility, based on the offense or offenses committed. See K.S.A. 1999 Supp. 38-16,129. Conversely, if the State or sentencing court believes that rehabilitation can be achieved by extending the minimum term of commitment to a juvenile correctional facility, then an upward departure could be sought. The legislature’s provision of an upward departure without the allowance of a downward departure is rationally related to rehabilitation. As a result, we find that K.S.A. 1999 Supp. 38-16,132(d)(2) does not violate T.A.L.’s equal protection rights.
T.A.L. contends that a sentencing court cannot reduce the minimum term of commitment to a juvenile correctional facility. This claim is completely inaccurate. Although K.S.A. 1999 Supp. 38-16,132(d)(2) prevents a downward departure from a sentence established by the sentencing matrix, a sentence may be modified under K.S.A. 1999 Supp. 38-1665(c). The statute provides in pertinent part: “Any time within 60 days after a court has committed a juvenile offender to a juvenile correctional facility the court may modify the sentence and enter any other sentence.”
Under this statute, a juvenile’s term of commitment to a juvenile correctional facility may be modified within 60 days after commitment to the facility. For example, within 60 days of commitment, the sentencing court could reduce the term of commitment to a juvenile correctional facility below that provided in the sentencing matrix or impose any sentence provided in K.S.A. 1999 Supp. 38-1663. As a result, even though the Kansas Juvenile Justice Code prevents downward departures for commitments to a juvenile correctional facility, a sentencing court nevertheless has discretion to modify a term of commitment under some circumstances.
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Knudson, J.:
In this consolidated appeal, Gonzalo Luna contends the excessive or loud noise ordinance of the City of Ulysses (City) is unconstitutionally vague and his convictions thereunder are not supported by substantial competent evidence.
City of Ulysses, Kansas, Ordinance No. 1002 (1997) states, in material part:
“Section 1. Loud Noise Prohibited. It shall be unlawful for any person to make or cause or permit to be made upon any public or private property including public streets, alleys, thoroughfares or parks, any unnecessarily loud or excessive noise or sound which is physically or mentally annoying or disturbing to anodier person or persons or which disturbs the peace, quiet, or comfort of another person or persons.
“Section 2. Exceptions. Loud or excessive noise or sound shall not be prohibited when the following conditions are present:
(1) The noise was caused by a system being operated to request medical or vehicular assistance or to warn of a hazardous road condition;
(2) The noise was caused by an emergency or public safety vehicle;
(3) The noise was caused by operations of the City of Ulysses or a gas, electric, communications or refuse company;
(4) The noise was made for the purpose of giving instructions, directions, talks, addresses, lectures or transmitting music to any persons or assemblages of persons in compliance with ordinances of the City of Ulysses.
(5) The noise was caused by authorized public activities, such as parades, fireworks, sports events, musical productions and other activities which have the approval of the city.”
Luna argues the ordinance is lacking an objective standard from which to determine what is “loud,” “excessive,” “mentally annoying,” and “disturbing.”
The interpretation of a statute is a legal question for which appellate review is unlimited. Griffin v. State, 14 Kan. App. 2d 803, 806, 799 P.2d 521 (1990).
“ ‘ “The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
“ ‘ “ In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe die statute as constitutionally valid, that should be done. [Citations omitted.]
“ ‘ “Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]” ’ ” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998) (quoting State ex rel. Stephan v. Parrish, 257 Kan. 294, 297, 891 P.2d 445 [1995]).
Whether a statute is constitutional is a legal question. See Griffin, 14 Kan. App. 2d at 806. Both the Kansas Supreme Court and the United States Supreme Court have provided standards to determine whether a statute is void for vagueness.
“[I]n determining whether an ordinance is void for vagueness, the following two inquiries are appropriate: ‘(1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ ” City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]). The Wallace court also held “[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.” 246 Kan. 253, Syl. ¶ 3.
The United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), said:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatoiy enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[sj upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit die exercise of (those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘ “steer far wider of die unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ”
Based upon the above holdings in Wallace and Grayned, there are two questions we must answer. First, do the terms within the ordinance, “unnecessarily loud” and “excessive noise or sound,” give fair warning to individuals potentially subject to its proscriptions? Second, does the ordinance provide for consideration as to the sensitivity of a complainant?
In State v. Bryan, 259 Kan. 143, 155, 910 P.2d 212 (1996), the court found unconstitutional a portion of the stalking statute because it failed to apply any objective standard in defining the terms “alarms,” “annoys,” and “harass.” The court was concerned that the statute did not provide any guidelines to be used to determine when a following became alarming, annoying, or harassing. 259 Kan. at 149. The court noted that conduct which annoys one person may not annoy another; therefore, without a “definition or an objective standard to measure the prohibited conduct” of the statute, it was held to be vague. 259 Kan. at 151.
The holding in Bryan is a reflection of the United States Supreme Court’s decision in Coates v. City of Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971). In this case, the Supreme Court found the use of the term “annoy,” without the application of an objective standard, was vague.
The New York Court of Appeals addressed a similarly worded ordinance in People v. NY Trap Rock Corp., 57 N.Y.2d 371, 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222 (1982). The court held the ordinance to be unconstitutionally vague, countenancing criminal convictions for noise which annoys another person motivated solely by malice or animosity between neighbors.
Conversely, in People v. Hollstegge, 129 Misc. 2d 580, 583, 493 N.Y.S.2d 720 (1985), a village noise ordinance was held not vague and New York Trap Rock Corp. was distinguished because “the ordinance here involved requires the determination both of unreasonableness and sensitivity of the complainant.”
We conclude the loud noise ordinance of the City does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Loaded phrases and words in the ordinance “unnecessarily loud,” “excessive,” “mentally annoying,” and “disturbing” do not provide fair warning to an individual of prohibited conduct.
The ordinance also provides that if the noise is disturbing to “another person or persons,” then the individual responsible for the noise is in violation, regardless if the complainants have reasonable grounds to complain. As was true in Bryan, the absence of an objective standard subjects the defendant to the particular sensibilities of the complainant. The door is left open to arbitrary and discriminatory enforcement of noisy speech, thus, potentially ensnaring constitutionally protected speech.
The City relies in part upon State v. Lara, 18 Kan. App. 2d 386, 853 P.2d 1168 (1993), wherein the constitutionality of K.S.A. 8-1739(a) was challenged. This statute requires vehicles to be “equipped, maintained and operated so as to prevent excessive or unusual noise.” The court held: “The words ‘excessive’ and ‘unu sual’ as used in K.S.A. 8-1739(a) are sufficiently certain and have well-accepted meanings. K.S.A. 8-1739(a) gives fair warning to those persons potentially subject thereto and adequately guards against arbitrary and discriminatory enforcement.” 18 Kan. App. 2d 386, Syl.
In upholding the statute, the Lara panel relied upon the following rationale given in Smith v. Peterson, 131 Cal. App. 2d 241, 249-50, 280 P.2d 522 (1955):
“ ‘It appears to us that the requirement that a motor vehicle be equipped with a muffler in constant operation so as to prevent any excessive or unusual noise seems as certain as any rule which could be practically enforced. Motor vehicles have been used so long and have become so common, and mufflers so uniformly used to minimize tire noise from their exhaust that what is usual has become a matter of common knowledge, and anything in excess of that is excessive and unusual, and usually capable of ascertainment as such. It may be that physicists have established definite standards of loudness of sound and means for measuring it, but this does not mean that such laboratory operations must be carried out by traffic officers on the highway where violators of this statute must be found and the evidence against them obtained. . . .’
“ “We conclude that the words “excessive” or “unusual,” when viewed in the context in which they are used are sufficiently certain to inform persons of ordinary intelligence of the nature of the offense which is prohibited, and are therefore sufficient to establish a standard of conduct which is ascertainable by persons familiar with the operation of automobiles.’ [Citation omitted.]” 18 Kan. App. 2d at 389-90.
The above reasoning in Smith adequately explains why Lara is not persuasive authority in this instance. Lara was decided within the context of prohibiting loud mufflers. That context included recognition that what is excessive muffler noise is a matter of common knowledge. Here, there are no commonly understood standards breathing objectiveness into the ordinance, and there is no adequate protection against its arbitrary and discriminatory enforcement.
In summary, Ulysses, Kansas, Ordinance No. 1002 does not provide objective standards for determining unreasonable noise and the sensitivity of a complainant. We hold the ordinance to be void for vagueness and reverse Luna’s convictions.
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Rulon, J.:
The State filed an interlocutory appeal from the trial court’s decision granting defendant Steven E. Box’s motion to suppress evidence. We reverse and remand for further proceedings.
The facts are virtually undisputed and are as follows:
Defendant was charged with being a felon in possession of a firearm and a misdemeanor, obstruction of legal process. Defendant filed a motion to suppress the evidence alleging he did not consent to the search and the search was not justified as a search incident to arrest. The State responded by asserting the search was authorized by consent and under K.S.A. 22-2501, a search incident to defendant’s arrest.
At the suppression hearing, Michael Bussell, an officer with the Lenexa Police Department, testified he stopped a Caprice driven by defendant because the car displayed a tag registered to a different vehicle. After Bussell explained the reason for the stop to defendant, defendant was unable to provide a driver s license or proof of insurance. When Bussell requested defendant’s name and date of birth, defendant advised his name was Damon Williams. A record check revealed Damon Williams had been arrested for narcotics and was a gang affiliate. For safety reasons Bussell requested a backup officer.
A passenger in the front seat was identified as Walter Laura. A record check advised that Laura had prior narcotics and weapons convictions. Laura was paralyzed from the waist down.
Bussell noticed a wallet in the ashtray, which had not been there when he initially approached the car. Bussell had defendant exit and stand to the rear of the car. Bussell suspected that defendant was lying and wanted to search the vehicle to get the wallet and anything illegal. Bussell advised defendant (who Bussell still knew only as Damon Williams), that his driver’s license was suspended and asked if there was anything illegal inside the car. When defendant responded negatively, Bussell requested consent to search the car, and defendant consented. Fred Farris, another officer with the Lenexa Police Department, arrived as Bussell asked for consent to search the car.
The female passenger in the back seat was told to exit the car. Laura was not told to exit the vehicle because he did not have his wheelchair. Bussell did not make Laura sit on the ground because it was cold and rainy outside. When Bussell noticed the car had controls for acceleration and braking on the steering column, he asked Laura who owned the car. Laura advised that his cousin who was incarcerated gave the car to Laura for his care and custody. Bussell asked Laura if he could search the car and Laura agreed. None of the three occupants in the car could provide registration for the stopped vehicle.
Bussell searched the contents of the billfold, which indicated the driver’s correct identity was defendant. A record check indicated defendant had an outstanding warrant for his arrest. Farris informed Bussell that defendant showed Farris the scar from a prior gunshot wound. Defendant was arrested and handcuffed.
A record check on the female passenger disclosed that she had provided fictitious identification. After the officers discovered her correct identity, she was arrested and taken into custody on outstanding arrest warrants. Because of defendant’s and Laura’s criminal histories, Bussell continued his search of the vehicle in the immediate areas where defendant had been seated and where Laura still was seated.
When Bussell realized the glove compartment was locked, he asked for the key several times. Defendant stated he did not know about the key and Laura stated he had never been inside the glove compartment. A decorative bullet hanging from a key chain in the ignition heightened Bussell’s suspicion that defendant or Laura could possess a gun. Although Bussell made a very cursory pat-down for bulges in Laura’s pants, Bussell was concerned for officer safety and wanted to search the glove compartment for a weapon due to Laura’s close proximity to it. Bussell also believed the vehicle’s registration would be in the glove compartment.
Farris testified he asked Laura for the key to the glove compartment because defendant admitted that he had a prior gun injury, and had been involved in drug activity. The officers knew that Laura was paralyzed because of a gunshot injury. Based upon the officers’ experience, drugs and weapons usually coincided. The officers believed it was inappropriate to have Laura sit on the grass in the cold and rain, but were uncomfortable leaving Laura in the car because Laura could readily access the glove compartment.
While Bussell held his arm over Laura’s torso, Farris took a screwdriver from the floorboard and used it to pry the glove compartment open. Inside was a loaded 9 millimeter handgun. When Farris told defendant they found a gun in the glove compartment, defendant immediately admitted it was his gun. Farris advised defendant not to say anything else until they arrived at the police station where defendant would be given an opportunity to make a statement.
When one of the passengers advised the officers the car contained drugs, it was towed to the police station where it could be searched further out of the inclement weather. The key to the glove compartment was eventually found in a crease in the front seat.
Subsequently, the district court found the consent to search the vehicle did not extend to the locked glove compartment. The court further found the search was not a search incident to arrest because the officers were not searching for fruits or instrumentalities of the crime for which defendant was arrested. The trial court found officer safety did not justify the search because the defendant was outside of the car when placed under arrest, and there was little evidence to support concern for officer safety regarding Laura. The court ultimately found the search of the glove compartment was not authorized and suppressed the evidence.
The State dismissed the obstruction of legal process charge and filed this interlocutory appeal.
The State has the burden of proof to show that a search and seizure was lawful. If the facts are not in dispute, the question of whether to suppress is a question of law which is subject to unlimited appellate review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
The State claims the defendant’s motion to suppress should not have been granted because the search was incident to defendant’s arrest. However, the State does not appeal the trial court’s finding regarding consent. Furthermore, the State acknowledges Kansas has not addressed whether an officer is permitted to open a locked glove compartment during a search incident to arrest.
The general rule that warrantless searches and seizures are unreasonable has five exceptions: (1) consent; (2) hot pursuit; (3) incident to a lawful arrest; (4) stop and frisk; and (5) probable cause to search with exigent circumstances. State v. Sanders, 5 Kan. App. 2d 189, 195, 614 P.2d 998 (1980).
K.S.A. 22-2501, the statutory authorization for a search incident to arrest, provides:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping, or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
We begin our analysis with a review of Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, reh. denied 396 U.S. 869 (1969). Law enforcement officers arrested Chimel at his res idence with a warrant for a burglary, searched the entire house, and confiscated numerous items from rooms other than the room where Chimel had been arrested. The Chimel Court held that the scope of the search was unconstitutional because it went beyond Chimel s person and areas where a weapon could have been retrieved or where evidence could have been destroyed or concealed. 395 U.S. at 768.
The Chimel Court held the concept of search incident to arrest was justified based upon officer safety and the rule for a search incident to arrest should be governed by the rule of Terry v. Ohio, 392 U.S. 1, 20, L. Ed. 2d 889, 88 S. Ct. 1868 (1968), authorizing a frisk for weapons. 395 U.S. 762-63. The Chimel Court further concluded the scope of such searches “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 395 U.S. at 762 (quoting Terry, 392 U.S. at 19). Under such a rule, no justification existed to routinely search rooms other than the room where an arrest occurred or through closed or concealed drawers or areas in that room, and a search incident to arrest is not justified where it is remote in time or place from the arrest. 395 U.S. at 764.
Following Chimel, our legislature enacted K.S.A. 22-2501. Additionally, our Supreme Court adopted six factors, based on existing federal and state case law, for a trial court to consider in deciding a motion to suppress evidence regarding the reasonableness of the scope of a vehicle search incident to a valid arrest. State v. Tygart, 215 Kan. 409, Syl. ¶ 2, 524 P.2d 753 (1974). The Tygart six factors are: (1) the closeness of the vehicle to the place of arrest, (2) the probability that seizable items related to the crime were inside the vehicle, (3) the amount of elapsed time between the arrest and the search, (4) the departure of the arrestee from the vehicle, (5) the vehicle was used in connection with the crime, and (6) the character of the place of the arrest, i.e., public area, business premises or private home. Other factors could bear upon the issue, and no single factor by itself was decisive. 215 Kan. at 412.
Following Chimel, the United States Supreme Court decided New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981). In Belton, the officer stopped a vehicle for excessive speeding; Belton was one of four occupants in the vehicle. None of the occupants owned the vehicle. Because the officer smelled burnt marijuana and saw an envelope on the floor of the car marked “ ‘Supergold,’ ” which the officer associated with marijuana, all occupants were arrested for possession of marijuana and ordered out of the car. The officer picked up the envelope, found it contained marijuana, and searched the passenger compartment of the car. The officer found Belton’s jacket in the back seat, unzipped a pocket, and discovered cocaine. Belton was indicted for possession of cocaine.
Because articles inside the vehicle’s passenger compartment are generally within the areas where an arrestee might reach to retrieve a weapon or evidence, the Belton Court held that an officer who has lawfully arrested an occupant of a vehicle may, as a contemporaneous incident of that arrest, search the passenger compartment of that vehicle and examine the contents of any open or closed containers found within the passenger compartment. 453 U.S. at 460-61. A “ ‘container’ ” was defined to include closed or open glove compartments and consoles but not trunks. 453 U.S. at 460, n. 4. The justification for searching containers was “not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justified the infringement of any privacy interest the arrestee may have.” 453 U.S. at 461. The Belton Court held that the search of Belton’s jacket was an area within his immediate control and within the meaning of the Chimel decision; thus, the search was constitutional. 453 U.S. at 462.
Kansas courts have applied Belton in upholding the scope of a search incident to an arrest. State v. Deskins, 234 Kan. 529, 543, 673 P.2d 1174 (1983); State v. White, 230 Kan. 679, 680, 640 P.2d 1231 (1982); State v. Croft, 6 Kan. App. 2d 821, 823, 635 P.2d 972 (1981). The first case to discuss K.S.A. 22-2501, Chimel, and Belton, was State v. Press, 9 Kan. App. 2d 589, 592-95, 685 P.2d 887, rev. denied 236 Kan. 877 (1984).
In Press, defendant was arrested for driving under the influence, handcuffed, and placed in the front seat of the patrol car with the seat belt fastened before the officer searched the passenger compartment of the defendant’s vehicle. After finding marijuana, the officer searched the trunk, finding more marijuana. The trial court found that the officer conducted a general search of the entire vehicle when there was no possibility defendant could have destroyed evidence while handcuffed in the patrol car. The State appealed the trial court’s decision to suppress the evidence from the search.
The Press court noted some jurisdictions interpreted Belton broadly, that is, a court need only find that an article was within the passenger compartment; if so, it is deemed to have been within the arrestee’s immediate control. The Press court further noted other jurisdictions have interpreted Belton narrowly, that is, each custodial arrest of the occupant of a vehicle must be evaluated to determine whether an article was within the arrestee’s immediate control. Under the narrow interpretation, Belton did not apply to searches if the defendant was arrested, handcuffed, and seated in the back seat of an officer’s car without a realistic possibility of access to the vehicle. 9 Kan. App. 2d at 594-95. The Press court held that Kansas adopted the broader interpretation of Belton. 9 Kan. App. 2d at 595-97.
Here, the State requests this court to adopt the bright line interpretations of Belton from other jurisdictions regarding a search of a locked glove compartment incident to an arrest. The State relies upon State v. Hanna, 173 Ariz. 30, 839 P.2d 450 (Ct. App. 1992), cert. denied 507 U.S. 997 (1993), and United States v. McCrady, 774 F.2d 868 (8th Cir. 1985). For us, the primaiy question is whether Kansas should extend Belton to apply to locked glove compartments.
Although the Tenth Circuit has not addressed the search of a locked glove compartment, it has discussed the extent of Belton. In United States v. Cotton, 751 F.2d 1146 (10th Cir. 1985), officers stopped a car driven by defendant because defendant and the car matched a description from a radio broadcast regarding a stolen vehicle. Defendant argued Chimel and Belton did not apply because he had been taken out of the car, arrested, and handcuffed before the other officer searched the passenger compartment of his vehicle and found a bag containing blank titles, VIN plates, and keys. After discussing Belton and the relaxation of the exclusionary rule for vehicles, the Cotton court held the challenged search was conducted incident to a lawful arrest and was reasonable under the totality of the circumstances even though the arrestee was outside the vehicle and handcuffed when the vehicle was searched. 751 F.2d 1147-50.
Later, the Tenth Circuit distinguished Cotton in U.S. v. Lugo, 978 F.2d 631 (10th Cir. 1992). In Lugo, after Lugo was arrested for traffic charges, handcuffed, and transported to jail, an officer inventoried the contents of the truck even though it was not going to be towed. The arresting officer reached inside a door panel that had been pulled away and found two bricks of cocaine. The Lugo court noted the rationale of Belton is that the inside of a vehicle is an area which an arrestee might reach to retrieve a weapon or evidence. Therefore, the court stated, it follows that the warrantless search incident to arrest is illegal if the search is remote in time or place from the arrest because no exigency exists. The Lugo court concluded the defendant was not a threat after being taken from the scene and the Belton rationale had evaporated. Belton was found inapplicable to the facts and the warrantless search was not justifiable. 978 F.2d 633-35. Clearly, the Tenth Circuit in Lugo rejected the analysis used by the Eighth Circuit in McCrady and limited the Belton bright fine rule.
If the bright fine rule of Belton has no limitations, as in McCrady, the six Tygart factors are no longer controlling. Yet, Kansas courts reverted to the Tygart factors after acknowledging that Kansas follows Belton. See State v. McClain, 258 Kan. 176, 183-84, 899 P.2d 993 (1995); State v. Van Wey, 18 Kan. App. 2d 260, 261-62, 850 P.2d 283 (1983).
The trial court here found it was more reasonable for the officers to remove Laura from the vehicle. Both officers testified they did not want to subject Laura to sitting on the grass in the cold and rain. Yet, they feared leaving Laura in the vehicle within close proximity of the locked glove compartment where a weapon could be concealed. So, the officers chose to search the glove compartment with Laura in the front seat. Another alternative would have been to call for another officer. However, these officers indicated they were on the street because the bad weather had patrol vehicles working traffic accidents. The last alternative was to allow Laura to remain in the car without searching the glove compartment. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23.
We conclude under Chimel, Tygart, and K.S.A. 22-2501, the officer’s safety after the arrest of defendant and the female passenger outweighed defendant’s privacy interest in the locked glove compartment, because Laura was not under arrest or handcuffed and remained in the car and in close proximity to the locked glove compartment. Under such circumstances, exigent circumstances existed for the warrantless search. Under Chimel, the Fourth Amendment to the United States Constitution requires the government to show that the exigencies of the circumstances made a warrantless search imperative. Considering the totality of the unique circumstances, we conclude the officers articulated a reasonable basis for concern about their safety after the arrest of defendant and the female passenger, and officer safety is an authorized purpose for a search incident to an arrest under K.S.A. 22-2501(a).
Our holding here is specifically based upon Chimel and Tygart and the unique facts of this case and not based on the bright line rule of Belton and Press.
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Wahl, J.:
Sergio Rosas appeals the trial court’s denial of his motion to suppress evidence from a search and interrogation which led to his conviction for possession of methamphetamine.
On December 13,1998, Officers Padrón and Bray of the Wichita Police Department investigated a complaint of possible drug activity at a residence. The officers observed Rosas leaving the residence and getting into a vehicle, parked with the motor running. Acting on their suspicions, the officers followed Rosas’ vehicle as he drove away. Rosas was subsequently stopped for a traffic violation.
Officer Padrón approached Rosas and asked him to produce his driver’s license. Rosas provided a valid Kansas license designated with a social security number. Padrón noticed an open bottle of whiskey on the floorboard of Rosas’ vehicle. A records check of Rosas’ driver’s license revealed he was wanted on a warrant for domestic violence. After taking possession of the bottle of whiskey from the truck, Padrón had Rosas step out of the vehicle. According to his testimony, Padrón initially patted Rosas down for weapons, but then searched his person with Rosas’ consent. Rosas testified he never gave Officer Padrón consent to search his person. In any event, Padrón found a plastic bag containing methamphetamine in Rosas’ boot.
The officers took Rosas into custody and transported him to a branch office of the police department for questioning. The officers gave Miranda warnings to Rosas in English, after offering to read them in either English or Spanish. Rosas said that he understood English very well. After Miranda was read to him, Rosas made incriminating statements concerning his purchase of the methamphetamine. Rosas was charged with one count of possession of methamphetamine.
Rosas moved to suppress the methamphetamine and all incriminating statements he made during the interrogation. At the suppression hearing, an interpreter assisted Rosas in the proceedings and translated his testimony from Spanish to English. Rosas argued the search and interrogation were illegal because he could not effectively consent or waive Miranda due to his difficulties with the English language. In addition, Rosas claimed the search and seizure were tainted because he is a Mexican citizen and because he was entitled to contact his consulate prior to detention by law enforcement. See Vienna Convention on Consular Relations (Vienna Convention), April 24, 1963, Art. 36(l)(b), 21 U.S.T. 77, T.I.A.S. No. 6820.
Officer Padrón is bilingual and speaks Spanish fluently. Padrón testified he communicated with Rosas in both languages at various times throughout the entire process and Rosas had no problems whatsoever. Both officers testified that Rosas spoke and understood English and communicated with them in a competent manner. Neither officer advised Rosas of a right to contact the Mexican consulate, nor did Rosas request to do so.
The trial court overruled Rosas’ motion to suppress. The court found no communication problem existed between Rosas and the officers and, therefore, consent and waiver were effectuated. The trial court also ruled the Vienna Convention did not apply to the issues raised by Rosas. Following the suppression hearing, Rosas was convicted of possession of methamphetamine after a bench trial.
“When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). When the facts material to a decision are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998). The factual findings of the trial court are reviewed for substantial competent evidence. State v. Wonders, 263 Kan. 582, 588-89, 952 P.2d 1351 (1998).
The only disputed facts in this appeal concern whether Rosas voluntarily consented to the officer s search of his person, and whether Rosas’ waiver of Miranda was made knowingly without the aid of an interpreter. The trial court’s determination on these issues should not be overturned if the factual findings are based on substantial competent evidence. Wonders, 263 Kan. at 588-89.
Rosas argues he could not legally consent to a search or legitimately waive his Miranda rights because the police officers failed to provide an interpreter as required by K.S.A. 75-4351, which provides in pertinent part:
“A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English,. . .
“(e) prior to any attempt to interrogate or take a statement from a person who is arrested for an alleged violation of a criminal law of the state or any city ordinance.”
Rosas does not challenge the stop, the search, or the subsequent interrogation on any other grounds in his brief. An issue which is not briefed is deemed abandoned. State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999). Therefore, Rosas’ challenge to admitting the seized methamphetamine and his statements into evidence concerns his alleged inability to understand his rights without the assistance of an interpreter due to a language barrier problem and his argument regarding application of the Vienna Convention, Article 36(l)(b).
K.S.A. 75-4351 does not require an interpreter to be appointed prior to obtaining a consent to search. State v. Montano, 18 Kan. App. 2d 502, 508, 855 P.2d 979, rev. denied 253 Kan. 862 (1993). When a violation of K.S.A. 75-4351 is not involved, the resolution of a consent to search issue depends on whether the consent was made voluntarily and knowingly. 18 Kan. App. 2d at 508: Rosas’ argument that an interpreter must be appointed in this context is without merit. We must determine only whether Rosas understood he was giving Officer Padrón consent to search his person.
Failure to provide an interpreter during an interrogation of a criminal arrestee is a per se violation of K.S.A. 75-4351(e). State v. Zuniga, 237 Kan. 788, 790-92, 703 P.2d 805 (1985). However, the Zuniga court held that a violation of the statute does not require suppression of the statement or vitiate the validity of the waiver of Miranda rights. 237 Kan. at 791. In Zuniga, the court held:
“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 made upon the totality of the circumstances.” 237 Kan. at 791-92.
The Kansas Supreme Court has consistently reaffirmed its position in subsequent cases involving a foreign speaking criminal arrestee and the application of K.S.A. 75-4351(e). State v. Salcido-Corral, 262 Kan. 392, 406-07, 940 P.2d 11 (1997); State v. Nguyen, 251 Kan. 69, 74-75, 833 P.2d 937 (1992); State v. Garcia, 243 Kan. 662, 674-75, 763 P.2d 585 (1988). As in consent to search, the only issue that matters regarding waiver of Miranda rights is voluntariness. In other words, the court simply must determine whether Rosas understood his Miranda rights given to him in English so that he knowingly waived those rights when he gave his statements to Officer Padrón in Spanish.
The test for voluntariness for a consent to search “is a question of fact to be decided in light of all the attendant circumstances by the trier of facts, and will not be overturned on appeal unless clearly erroneous.” State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997). The Supreme Court has stated virtually the same inquiry applies to waiver of Miranda rights:
“Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extra-judicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence.” State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).
Here, a full hearing was conducted on the matters of Rosas’ consent and waiver of his Miranda rights. As to Rosas’ ability to understand Officer Padrón and effectively consent to the search and knowingly waive his Miranda rights, the trial court concluded there was no communication problem between Rosas and Padrón. The trial court based its determination primarily upon the testimony of Officer Padrón. Padrón testified Rosas understood him while speaking English or Spanish, and Rosas told him he, Rosas, spoke English well. In addition, the trial court noticed that while Rosas testified, he understood some of the questions before they were translated into Spanish. Finally, Rosas testified he had graduated from an English-speaking high school in Wichita without the aid of an interpreter and had conversed with Officer Padrón in both languages. There is substantial competent evidence to support the trial court’s finding that Rosas’ consent was given freely, and he knowingly and voluntarily waived his Miranda rights.
Rosas argues the police should not be able to switch back and forth from English and the accused’s primary language as a matter of law. He also argues the standard for proving voluntariness should be raised to clear and convincing evidence in the context of judging whether consent or waiver of Miranda is voluntary for arrestees whose primary language is one other than English. Rosas cites no case law to support these novel assertions. Certainly, the manner of the interrogation is a factor, but in Kansas, the test for voluntariness remains the “totality of the circumstances.” McCorkendale, 267 Kan. at 270. Nevertheless, this court must follow the Supreme Court’s ruling that voluntariness is judged by the preponderance of the evidence standard of proof. State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993).
Rosas’ claim for an interpreter is considerably less than convincing. His consent to the search and his waiver of his Miranda rights were knowingly and voluntarily made.
Rosas’ argument regarding the application of Article 36(1 )(b) of the Vienna Convention to his motion to suppress evidence presents questions of law for us to decide by a de novo standard of review. See Rexroat, 266 Kan. at 53.
Rosas contends the police officers’ failure to advise him of his right to consult the Mexican Consulate is in violation of the Vienna Convention and requires automatic suppression of all evidence. The pertinent portion of this treaty relied upon by Rosas is at Article 36(l)(b) which states:
“[I]f lie so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under' this sub-paragraph.” Vienna Convention, 21 U.S.T. at 101.
The introduction of the treaty states in pertinent part:
“Believing that an international convention on consular relations, privileges and immunities would also contribute to die development of friendly relations among nations, irrespective of their differing constitutional and social systems,
“Realizing that die purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective states.” Vienna Convention, 21 U.S.T. at 79.
The Vienna Convention is a 79-article, multilateral treaty to which both the United States and Mexico are signatories. U.S. v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000). The treaty requires an arresting government to notify a foreign national who has been arrested of his right to contact his consul. Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied 519 U.S. 995 (1996).
Rosas states he is a citizen of Mexico and a legal, permanent resident of the United States. The State argues that Rosas failed to provide adequate evidence that he is a foreign national. Though the only evidence of Rosas’ citizenship is his own word, the issue was not challenged or argued by the State at the suppression hearing or trial. An issue not presented to the trial court will not be considered for the first time on appeal. State v. Smith, 268 Kan. 222, 242-43, 993 P.2d 1213 (1999). Since the State failed to argue Rosas’ citizenship to the trial court, the question is not properly before this court.
As a Mexican national, it is clear from the record that he was not informed of his right to contact his consulate as required by Article 36(l)(b). Therefore, the issue becomes whether suppression of the evidence is the appropriate remedy for a violation of the Vienna Convention.
This court addressed Article 36(l)(b) of the Vienna Convention for the first time in State v. Ameen, 27 Kan. App. 2d 181, 183-84, 1 P.3d 330 (2000). The defendant in Ameen argued he was denied his right to effective counsel because he was not informed of his rights to contact his consulate pursuant to Article 36(l)(b). The defendant was procedurally barred from raising a claim under the treaty because he failed to raise the issue at trial. 27 Kan. App. 2d at 184. However, in dicta, the court stated: “Courts dealing with this question have concluded a violation of Article 36(l)(b) will not result in a reversal unless the defendant has shown prejudice.” 27 Kan. App. 2d at 184.
Although inapplicable to the facts in the case, Ameen urged prosecutors to become familiar with the provisions of the treaty, specifically Article 36, and adhere to them. 27 Kan. App. 2d at 184. Though not cited in Ameen, that decision echoes dicta found in Breard v. Greene, 523 U.S. 371, 140 L. Ed. 2d 529, 118 S. Ct. 1352 (1998), which states that Article 36(l)(b) of the Vienna Convention “arguably” creates individual rights to consular assistance following arrest, 523 U.S. at 376, even while commenting that it is a highly speculative debate as to whether a criminal defendant was prejudiced by not following the Vienna Convention, 523 U.S. at 377. Dictum may be respected, but it is not controlling in subsequent case law when the precise point is being argued and considered by the court. Dickey v. Daughety, 21 Kan. App. 2d 655, 659, 905 P.2d 697 (1995), aff'd 260 Kan. 12, 917 P.2d 889 (1996).
Approximately 6 weeks prior to this court’s decision in Ameen, the Supreme Court considered the issue of whether notice requirements of the Vienna Convention were complied with when thé trial court granted guardianship to an aunt of a minor with foreign national status. In re L.A.M., 268 Kan. 448, 449, 996 P.2d 839 (2000). Though not dealing with Article 36(l)(b), L.A.M. held that the notice requirements of the treaty were sufficiently complied with to satisfy the purpose and intent of the Vienna Convention. The court specified the purpose and intent of the treaty in its opinion: “The focus of the treaty is, therefore, on promoting peaceful in ternational relations and not on specific rights of individual citizens.” 268 Kan. at 449-50.
The dicta in Ameen and L.A.M. appear to be conflicting. L.A.M. appears to indicate that suppression of evidence would be an inappropriate remedy because individual rights cannot be enforced due to a violation of the Vienna Convention, but the court was not considering Article 36(l)(b). Ameen appears to advance the theory that a violation of the Vienna Convention creates an individual’s right to have evidence suppressed when shown proof of prejudice to the defendant. The court was considering Article 36(l)(b), but consideration of the suppression issue was not necessary to the court’s decision. Kansas case law is unclear as to the remedy for a violation of the Vienna Convention, Article 36(l)(b).
Rosas relies on U. S. v. Lombera-Camorlinga, 170 F.3d 1241, 1242-43 (9th Cir. 1999), in which a panel of the court held Article 36 of the Vienna Convention creates individual rights enforceable in the courts of the United States. That panel further held that a defendant’s post-arrest statements made before being advised of this right are inadmissible in a subsequent criminal prosecution if the defendant can show prejudice from the lack of notification. 170 F.3d at 1243-44.
Rosas failed to mention that this case was overturned by an en banc review of the case in U.S. v. Lombera-Camorlinga, 206 F.3d 882, 883-84, which held suppression was not an appropriate remedy for a violation of the Vienna Convention, even if the Article 36(l)(b) provision conferred individual rights. As its basis for the ruling, the court stated:
“In arguing that the statements should be suppressed, appellants urge us to make the unwarranted assumption that the treaty was intended to serve the same purposes as Miranda in enforcing the rights to counsel and against self-incrimination in the post-arrest context. Yet, the treaty does not link the required consular notification in any way to the commencement of police interrogation. Nor does the treaty, as Miranda does, require law enforcement officials to cease interrogation once the arrestee invokes his right. See Miranda, 384 U.S. at 444-45, 86 S. Ct. 1602. Furthermore, while the rights to counsel and against self-incrimination are secured under the Fifth and Sixth Amendments to our own Constitution and are essential to our criminal justice system, they are by no means universally recognized or enforced. See Miranda, 384 U.S. at 442-43, 86 S. Ct. 1602 (stating that the Fifth Amendment right against self-incrimination ‘had its origin in a protest against the inquisitorial . . . methods of interrogating accused persons, which have long obtained in the continental system’) . . . There is no reason to drink the drafters of the Vienna Convention had these uniquely American rights in mind, especially given the fact that even the United States Supreme Court did not require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in 1966, three years after the treaty was drafted.” 206 F.3d at 886.
We find the above rationale of Lombera-Camorlinga to be convincing that a violation of the treaty does not restrain or eclipse our judicial safeguards which maintain fairness, integrity, and justice.
We agree with the Ameen court that prosecutors should be aware of the Vienna Convention and inform foreign national defendants of their rights under Article 36(l)(b). We do, however, disapprove of any language in Ameen which states or suggests that suppression of evidence is an appropriate remedy for a violation of the Vienna Convention. As stated in the introduction to the treaty, its purpose “is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” 21 U.S.T. at 79.
Rosas might well have received some comfort from the consul, but he had full knowledge of his rights when Mirandized by the officers. He received the total protection of the laws of Kansas and of the United States.
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Brazil, C.J.:
Shawna Tullís sued Pittsburg State University for injuries received during the performance of a university sponsored play. She appeals the decision of the Crawford County District Court granting summary judgment in favor of the university.
We affirm.
On October 31, 1997, Shawna Tullís, was accidentally stabbed with a knife while participating as an actress in a play sponsored by Pittsburg State University at the Memorial Auditorium in Pitts-burg, Kansas. The knife was being used as a prop in the play. The person who stabbed Tullís was another actress who was a student at the university and was not an employee of the university or the State of Kansas.
The play was directed by an employee of the university, Barry Bengston. Tullís was a student at the university but was not re ceiving any class credit for her participation in the play. She was also employed part-time at the university but was not acting within the scope of her employment when she was injured.
The university argues that this court does not have jurisdiction to hear this appeal because Tullis failed to properly designate the judgment or part thereof appealed from as required by K.S.A. 60-2103(b). Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999).
On February 11, 2000, this court issued an order to show cause why this appeal should not be dismissed for lack of jurisdiction. In response, Tullis filed a response and second amended notice of appeal, while the university filed a motion to dismiss the appeal. The university’s motion was denied and the appeal was retained.
The argument now raised in the university’s brief challenging this court’s jurisdiction is the same argument raised in its motion to dismiss the appeal. The argument is essentially one of form over substance. Tullis filed her notice of appeal in a timely fashion but used the wrong words. The notice of appeal read: “You are hereby notified that the defendant appeals from the Notice Pursuant to Supreme Court Rule 170 entered by the Court on the_day of December, 1999.” Supreme Court Rule 170 (1999 Kan. Ct. R. Annot. 191) lays out the ground rules for the preparation of a journal entry. Notice pursuant to the rule for one party to prepare a journal entry is not technically a final judgment and is therefore not an appealable order. Obviously, Tullis wanted to appeal the journal entry of judgment that was eventually produced pursuant to Rule 170, but for whatever reason, she did not properly state that in her notice of appeal.
Her second amended notice of appeal corrected the mistake. However, this correction came on February 28, 2000, well beyond the statutory time limit for filing the appeal. It cannot reasonably be contended that the university was confused as to what Tullis was appealing or has been prejudiced in any way.
In Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 720, 869 P.2d 598 (1994), the Supreme Court noted that the modem code of civil procedure was not designed to make the requirements of a notice of appeal more technical and burdensome and that a liberal construction is called for in order to secure the just, speedy, and inexpensive determination of every action or proceeding. 254 Kan. at 720.
Also, the Kansas Supreme Court recently decided two criminal cases which support this position: State v. Boyd, 268 Kan. 600, 999 P.2d 265 (2000), and State v. Wilkins, 269 Kan. 256, 7 P.3rd 252 (2000). While there may be stronger public policy reasons for allowing criminal defendants more latitude in framing their appeals than parties in civil disputes, the Supreme Court in Boyd stated that Hess, a civil case, “does provide insight to the Kansas modern-day philosophy concerning appeals. The notice of appeal should not be overly technical or. detailed.” Boyd 268 Kan. at 606. The court also stated: “It is clear that by the legislative changes in 1963, the legislature intended it to be easier to take an appeal to an appellate court in Kansas.” 268 Kan. at 604.
It would be unjust to prevent Tullís from obtaining appellate review of her case because of poor word choice and a hypertechnical reading of the notice requirements. While inartfully worded, the original, timely notice of appeal sufficiently specified the judgment appealed from. The “Notice Pursuant to Supreme Court Rule 170” which Tullís specified in her notice of appeal refers to the direction by the trial court that a journal entry of its judgment be prepared. Clearly, Tullís desired to appeal the judgment that gave rise to the journal entry that was, pursuant to Rule 170, directed to be prepared. The notice is not so general or unclear as to require this court to search through the record to determine the basis for the appeal. See State v. Kerby, 259 Kan. 104, 106, 910 P.2d 836 (1996), and State v. G.W.A., 258 Kan. 703, 706-07, 906 P.2d 657 (1995) (dismissing appeals because notices of appeal filed by the State were insufficiently specific to identify what the appeals were based on without independent research by the appellate court). The judgment Tullís is appealing from is obvious.
Under K.S.A. 1999 Supp. 60-256(c), summary judgment is only proper if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A genuine issue of fact exists only if a controverted fact has control ling legal force as to a controlling issue. P.W.P. v. L.S., 266 Kan. 417, 423, 969 P.2d 896 (1998) (quoting Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 [1995]).
The university argues it is immune from liability under the recreational use exception of the Kansas Tort Claims Act (KTCA). This involves interpretation of the KTCA and, thus, appellate review is unlimited. Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
The pertinent part of the KTCA is K.S.A. 75-6104 which states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property 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 injury.”
The university argues that a theater qualifies as a property intended for recreational purposes and that the play in which Tullis was injured was conducted for recreational purposes, thus rendering the university immune from liability absent a showing of gross negligence. Under Jackson, the determinative issue is “whetherthe property was intended or permitted to be used for recreational purposes.” 268 Kan. at 329. If so, the university is immune from liability for Tullis’ injuries. See 268 Kan. at 329. Whether Tullis was actually engaged in recreational activity is not relevant. See 268 Kan. at 328-29.
Jackson interpreted the meaning of “open area” as used in the statute to include a school gymnasium. 268 Kan. at 325. The court reasoned that “[i]t defies common sense to hold that K.S.A. 75-6104(o) provides immunity from injuries which occur on a football field, a baseball field, a track and field area, and a sledding area, but not on an indoor basketball court solely because it is indoors.” 268 Kan. at 325. The university argues that, for purposes of the statute, a theater, like a school gymnasium, is an open area intended for recreational use.
The university’s argument is logical. Both facilities are used for recreational purposes, and they do share some substantial physical characteristics. Both have large open spaces with designated areas for performances and seating for spectators. The fact that there is a roof overhead really has no bearing. Basketball can be played in a gymnasium or outside, and as the Jackson court noted, it would make no sense to provide immunity for an outside game and not for an inside game. In the same vein, both indoor and outdoor theaters exist, and it would make no sense to include outdoor theaters within the meaning of the statute and not indoor theaters.
Tullís’ argument opposing the application of the recreational use exception does not squarely address the issue. She cites the case of Lanning v. Anderson, 22 Kan. App. 2d 474, 921 P.2d 813 (1996), but Lanning is not on point for this issue. In Loaning the issue was not whether the recreational use exception applied, but whether there was sufficient evidence to support a finding of gross and wanton negligence on the part of the government, a requirement for liability under the recreational use exception. Her argument comes down to a simple, unsupported assertion that the recreational use exception does not apply.
Based on the arguments presented and the case law, the university’s position is the stronger one. Extending the recreational use exception to include theaters is consistent with Jackson.
Following the filing of the university’s motion for summary judgment, Tullís asked the court for permission to amend her pleadings to allege gross and wanton negligence on the part of Bengston, the play director. The court denied her motion.
K.S.A. 1999 Supp. 60-215(a) allows a party to amend its pleadings after a responsive pleading has been served, only by leave of the court or consent of the adverse party. Leave to amend “shall be freely given when justice so requires.” K.S.A. 1999 Supp. 60-215(a). This court has recognized that “ ‘[a] trial court is given broad discretionary power under K.S.A. 60-215 to permit or deny the amendment of pleadings, and its actions will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. [Citation omitted.]’ ” Clevenger v. Catholic Social Service of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, 524, 901 P.2d 529 (1995).
Tullis contends that she was denied a substantial right because she was not allowed to present her full case. However, it should first be noted that she only attempted to amend her pleadings following the close of discovery and the university’s motion for summary judgment. Her request to amend was supported only by her own assertions laid out in a belated affidavit. A review of the record shows that the trial court’s decision was sound and it acted well within its discretion.
With the absence of gross and wanton negligence on the part of the university, it is immune from liability under the recreational use exception of the KTCA. 1
Other fact issues raised by Tullis are therefore immaterial, and the university is entitled to summary judgment as a matter of law.
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Green, J.:
Don Muir appeals from a judgment of the trial court denying his K.S.A. 1999 Supp. 60-1501 petition. On appeal, Muir contends that the trial court erred in failing to determine that the Kansas Department of Corrections (DOC) had improperly forfeited his good time credits. We disagree and affirm.
Muir was originally sentenced to 13 months in custody of the DOC in case No. 94 CR 569. He was placed on postrelease supervision on March 1, 1996, with a maximum release date of May 12, 1997. In June of 1996, Muir committed a series of burglaries for which he received a new controlling sentence of 33 months in custody. In May 1997, Muir s postrelease supervision was formally revoked, and he was ordered to serve to his sentence discharge date.
Muir was sentenced to 33 months on the new convictions on December 9, 1996, and had a beginning sentence date of September 6, 1996, after receiving 94 days of jail credit. He also still owed 8 months and 6 days on his previous sentence (9/6/96 to 5/12/97), for a combined total of 3 years, 5 months, and 6 days. The guidelines release date was listed as February 12, 2000, with 2 years’ postrelease supervision, making his discharge date February 12, 2002.
Although Muir’s controlling sentence was 33 months, he could have earned up to 4 months and 29 days of good time, resulting in 28 months and 1 day of time to serve on the new sentence. As listed on the sentence computation worksheet, Muir’s estimated guidelines release date on the new sentence was January 7, 1999. Adding 8 months and 6 days for the remainder of Muir’s previous sentence brought the estimated guidelines release date to September 13, 1999.
In June 1999, Muir received a disciplinary report for a violation of K.A.R. 44-12-901, dangerous contraband, and was found guilty. As a result, 3 months of good time were forfeited, which moved Muir’s estimated release date on the old and new term to December 19, 1999. Muir was released from custody on December 17, 1999.
Muir filed a petition under K.S.A. 1999 Supp. 60-1501 in October 1999, alleging his 3 months of good time was illegally forfeited, causing him to be restrained past his release date of September 13, 1999. In his memorandum in support of his petition, Muir argued the DOC cannot forfeit good time earned on his new sentence when he was serving only the balance of his postrelease time under an order from the Kansas Parole Board. The trial court heard the petition on October 26,1999. The trial court determined that the sentence of the hearing officer forfeiting 3 months of good time from Muir was a legal order.
First, we must decide if Muir’s appeal is moot. Muir was released from custody on December 17, 1999. The good time taken from him as a result of his disciplinary violation has been served. By statute, any remaining good time not forfeited is added to post-release supervision. K.S.A. 1999 Supp. 21-4722(b). Thus, Muir’s final discharge date remains February 12, 2002, regardless of how we decide this issue. Further, the consequences Muir would face if he were to later violate the conditions of his postrelease supervision would not be influenced by a decision in this appeal. Muir would still be subject to serving the entire remaining balance of that period. K.S.A. 1999 Supp. 75-5217(c). Because the actual controversy in this case has ended, any judgment by this court would be an idle act insofar as Muir’s rights are concerned. See Shanks v. Nelson, 258 Kan. 688, 693, 907 P.2d 882 (1995).
However, this case warrants an exception to the general rule regarding appellate review of moot issues because it involves a question of interest likely to recur that needs to be clarified and addressed by this court. See Junction City Education Ass’n v. U.S.D. No. 475, 264 Kan. 212, 215, 955 P.2d 1266 (1998). Where a particular issue, although moot, is one of public importance and one capable of repetition, an appellate court may consider that issue and render an opinion. Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996); State v. Zimmer, 19 Kan. App. 2d 617, Syl. ¶ 2, 873 P.2d 1381 (1994). Notwithstanding the issue of mootness, Muir’s argument is fatally flawed. Our standard of review for the issue regarding good time forfeiture is as follows:
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference and is called die doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when die agency is one of special competence and experience. Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
Muir argues the DOC cannot forfeit his good time if the forfeiture was imposed during the time frame when he was serving the remainder of his postrelease time on his old crime. Muir’s estimated guidelines release date on his new crime was January 7, 1999. The disciplinary violation occurred in June 1999, while Muir was serving the remainder of his sentence from his previous crime, which was not subject to reduction through the application of good time. See Sentencing Guidelines Directive # 32A (February 8, 1995). See also K.S.A. 1999 Supp. 75-5217(c) (upon revocation Muir would be required to serve the entire remaining balance of the period of his postrelease supervision).
We must initially decide which sentence Muir served first. K.S.A. 21-4608(c) states Muir shall serve his sentence on his new crime consecutive to the remainder of his postrelease term. Likewise, Sentencing Guidelines Directive # 37, dated April 21, 1999, states that upon revocation, any remaining period of postrelease supervision must be served before the commencement of the new sentence.
Nevertheless, the trial court determined that Muir was to first serve his new sentence, then his postrelease time remaining on his old sentence. Although K.S.A. 21-4608(c) seems to say otherwise, this position is consistent with the sentence computation worksheet and is the only logical conclusion. Muir’s parole was not formally revoked until May 1997, 8 months after his sentence beginning date. Thus, the only sentence he could have been serving before this date was the 33-month sentence on his new conviction.
This interpretation also seems to be consistent with the dicta in White v. Bruce, 23 Kan. App. 2d 449, 454-55, 932 P.2d 448, rev. denied 262 Kan. 970 (1997). In White, much like the case before this court, defendant’s postrelease supervision was not revoked until 7 months after he began serving his prison sentence on his new crime. The court held the 7 months spent incarcerated on the new crime, before revocation, did not also vest as credit against his postrelease supervision term. In so finding, the court, in adopting the rationale of Zerbst v. Kidwell, 304 U.S. 359, 82 L.Ed. 1399, 58 S.Ct. 872 (1938), implied a prisoner’s postrelease sentence, when parole was not revoked until after imposition of his new sentence, is to be served at the completion of the new sentence. See White, 23 Kan. App. at 454-55 (Zerbst court held inmates’ original sen tences, of which they were on parole, were suspended until completion of their new sentences. 304 U.S. at 362).
Sentencing Guidelines Directive # 32A states that upon revocation of an inmate’s postrelease supervision, the new sentence shall be aggregated with the balance of the time remaining on postrelease supervision to establish the time to serve on the aggregate sentence. Although the sentence calculation worksheet shows the separate nature of the two sentences, this may have been done for the ease of calculating Muir’s sentence. January 7, 1999, was the estimated release date on the new sentence. September 13, 1999, was the estimated release date on the old and new term.
Accepting Muir’s argument that the two sentences are separate and distinct, we would reach an illogical result. According to Muir, once he has served the amount of time necessary to satisfy the new portion of his imprisonment, he would be able to commit all the disciplinary violations he wished because no good time could be forfeited. If the two sentences really were separate and distinct, Muir would have been released from prison on January 7, 1999, assuming he earned all of his good time, been placed on postrelease supervision for 2 years plus the amount of good time he earned, and then put back in prison to serve the remaining 8 months and 6 days from his old conviction. Of course, when prisoners are ordered to serve consecutive sentences, they are not released after the completion of one sentence to postrelease supervision then reincarcerated later to complete the other sentence. The sentences are aggregated, and the good time is subtracted at the end from the guidelines release date.
Although Muir was technically serving the remainder of his post-release time from his old conviction when he committed the disciplinary violation, sentences are aggregated for the purposes of determining the total length of term, guidelines release date, and final discharge date. His guidelines release date was February 12, 2002. If Muir was awarded all of his available good time and none was forfeited, he would have been released on September 13,1999. Had Muir committed a disciplinary violation before earning good time credits, nothing could be forfeited and his estimated release date would not have been affected. K.A.R. 44-6-125(c). However, at the time Muir committed the disciplinary violation, he had clearly earned 4 months and 29 days of good time. As a result, the DOC was within its rights to subtract 3 months of Muir s good time credit previously earned on his sentence.
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Green, j.:
Scottsdale Insurance Company (Scottsdale) appeals from a summary judgment entered against Scottsdale in its cross-claims against Montgomery & Collins, Inc. (MCI), Howard Felber, and Cretcher-Lynch & Company (CLC) for breach of a general agency agreement. On appeal, Scottsdale argues that it is entitled to indemnity from MCI, Felber, and CLC for a loss resulting from the unauthorized placement of insurance coverage. We disagree and affirm.
This is the second cause of action related to a construction accident that occurred in 1992. The first cause of action was brought by the survivors of John R. Bryant, who was injured at a construction site due to the negligent operation of a crane. The Bryant litigation was brought against two subcontractors on the construction project, All Temperature Insulation, Inc. (All Temp) and APAC Kansas, Inc. (APAC). APAC joined the general contractor of the project, Foley Company (Foley), as a third-party defendant, alleging that Foley was contractually bound to hold APAC harmless from the suit by Bryant. Judgment was entered against APAC and All Temp. APAC then sought judgment against Foley for the amount of the judgment, attorney fees, and costs associated with the defense of the action. Summary judgment was entered in favor of Foley on the indemnification claim but was later reversed by this court in Estate of Bryant v. All Temperature Insulation, Inc., 22 Kan. App. 2d 387, 916 P.2d 1294, rev. denied 260 Kan. 992 (1996).
This second cause of action was brought by Foley and its insurance carrier, Royal Insurance Company, against All Temp and All Temp’s insurance carrier, Scottsdale, and an insurance broker, CLC, for indemnification of some of the amounts paid in the Bryant litigation.
Under All Temp’s construction contract with Foley, All Temp agreed to name Foley as an additional insured on its liability policy. With the assistance of Scottsdale’s general agent, MCI, and through MCI’s employee, Felber, Foley was added as an additional insured on All Temp’s policy with Scottsdale. At the time Foley was added as an additional insured on the All Temp policy, CLC was acting in an agency capacity on behalf of MCI.
MCI, as a general agent for Scottsdale, was authorized to issue certificates of insurance with binding authority for Scottsdale. Certificates of insurance for additional insureds were to be sent by MCI to Scottsdale for approval within 20 days. Although the general agency agreement prohibited MCI from delegating its authority to any other party except as authorized in writing by Scottsdale, MCI and CLC agreed that CLC could issue certificates of insurance naming general contractors, such as Foley, on All Temp’s policy with Scottsdale, subject to MCI’s approval. Under MCI’s agreement with CLC, CLC could issue such insurance certificates only if it did not increase the risk to Scottsdale.
While the All Temp policy was in full force and effect, Bryant was injured. Notification of the injury was sent to MCI, which hired a claims investigator to look into the matter and report to Scottsdale. Sometime after Bryant’s injury, a copy of the certificate of insurance naming Foley as an additional insured was forwarded to Scottsdale by MCI.
After Scottsdale’s claims department received the report from the investigator hired by MCI and the belated certificate of insurance naming Foley as an additional insured, Scottsdale did not cancel the All Temp policy. The policy was later audited and All Temp was charged an additional premium of approximately $23,000 based on All Temp’s actual total payroll for the policy periods. Scottsdale renewed the All Temp policy for 3 policy years after Bryant’s injury, including the years the Bryant litigation was pending.
Shortly after the Bryant litigation was filed, a demand was made by Foley upon Royal and Scottsdale to defend APAC and Foley in the Bryant case. Scottsdale failed to respond and Royal ultimately provided the defense.
During the pendency of the appeal in the Bryant litigation, Foley and Royal commenced this action against AH Temp, Scottsdale, and CLC. The trial court concluded all of the claims and cross-claims filed in the case by ruling on dispositive motions. The trial court found that Scottsdale and Royal were co-insurers and that Scottsdale was liable for 50% of the judgments rendered against APAC and Foley in the Bryant litigation, as well as 50% of the attorney fees for the defense of APAC and Foley in the Bryant litigation. The trial court entered a judgment against Scottsdale and in favor of Foley and Royal in the total amount of $79,643.24. Scottsdale paid the judgment.
Scottsdale filed cross-claims against MCI, Felber, and CLC (hereinafter collectively referred to as the third-party defendants). Scottsdale alleged that MCI and Felber breached the general agency agreement between Scottsdale and MCI. Scottsdale’s claim against CLC was founded upon a working contract between MCI and CLC for the issuance of the All Temp policy and the certificate of insurance for Foley. Scottsdale alleged that it was entitled to indemnity because CLC and MCI were not authorized to add Foley as an additional insured on the All Temp policy.
The third-party defendants moved for summary judgment against Scottsdale on Scottsdale’s cross-claims. The trial court granted the motions for summary judgment on the basis of Scottsdale’s ratification of their allegedly unauthorized acts.
Scottsdale appeals the trial court’s grant of summary judgment. MCI and Felber cross-appeal the trial court’s grant of summary judgment in favor of Foley related to coverage under the policy for attorney fees incurred by APAC in defending the Bryant litigation.
Before reaching the merits of this case, it is first necessary to determine whether this court has jurisdiction. MCI and Felber argue that because Scottsdale has paid the full amount of the judgment entered in favor of Foley and Royal, Scottsdale has acquiesced in the judgment and the appeal should be dismissed.
To support their argument, MCI and Felber cite Varner v. Gulf Ins. Co., 254 Kan. 492, 866 P.2d 1044 (1994). The Varner court held that “[i]n order for an appellate court to hold that a party has acquiesced in a judgment, it must be shown that the appellant has either assumed burdens or accepted benefits of the judgment con tested in the appeal.” (Emphasis added.) 254 Kan. 492, Syl. ¶ 1. Here, although Scottsdale has assumed the burden of the judgment rendered in favor of Foley and Royal, that judgment is not contested on appeal. Instead, the judgment contested by Scottsdale on appeal is the summary judgment entered in favor of the third-party defendants and against Scottsdale on Scottsdale’s indemnity claim. Because Scottsdale has not adopted a position that is inconsistent with the judgment contested on appeal, Scottsdale has not acquiesced in that judgment and the appeal is retained.
On appeal, Scottsdale argues that the trial court erred in granting summary judgment against it and in favor of the third-party defendants because Scottsdale is entitled to indemnity from those parties. Scottsdale claims that the trial court erred in not allowing the indemnification claims to go to trial because the trial court resolved factual disputes against Scottsdale so that it could rule on its claims as a matter of law. Specifically, Scottsdale alleges that the trial court erred in finding that it ratified the actions of the third-party defendants. In the alternative, Scottsdale argues that even if it failed to repudiate the actions of the third-party defendants regarding the addition of Foley to All Temp’s policy, the third-party defendants are not relieved from their breach of contract.
Our Supreme Court recently noted the standard of review for a motion for summary judgment:
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply tlie same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
It is first necessary to determine whether the trial court erred in finding that Scottsdale ratified the allegedly unauthorized actions of the third-party defendants. Under agency law, once a principal knows of an agent’s unauthorized actions, it cannot sit back and see if it will benefit or suffer from the agent’s actions. Instead, a principal who receives notice of an unauthorized act of an agent must promptly repudiate the agent’s actions or it is presumed that the principal ratified the act. Ratification is the adoption or confirmation by a principal of an unauthorized act performed on its behalf by an agent. Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 304-05, 510 P.2d 1212 (1973).
The trial court correctly determined based on uncontroverted facts that Scottsdale did not repudiate the acts of the third-party defendants until 2 years after they occurred, at the absolute earliest. Scottsdale knew that Foley had been added as an additional insured on All Temp’s policy within months after the certificate of insurance was issued. Despite this knowledge, Scottsdale did not cancel the policy or even announce its intention to dispute Foley’s status as an additional insured. Instead, Scottsdale continued to renew the policy for several additional policy years. These renewals continued even after Foley asked Scottsdale to defend it in the Bryant litigation. Scottsdale did not disallow by word or action the addition of Foley to the policy. In fact, the first time Scottsdale indicated that it was denying Foley’s status as a named insured was when it filed its answer in this case, years after it knew Foley was an additional insured on All Temp’s policy.
Scottsdale took a position similar to that denounced by the Theis court. Theis noted that “the requirement of prompt repudiation is to prevent an investor from withholding his disapproval until the market has taken a turn for the worse, and then deciding to assert the alleged wrongdoing.” 212 Kan. at 305. Here, Scottsdale withheld disapproval of the third-party defendants’ actions until it became likely that Scottsdale would suffer a loss as a result of those parties’ actions. By failing to promptly repudiate the allegedly unauthorized actions, Scottsdale was able to sit back and quietly accept any benefits resulting from the addition of Foley to All Temp’s policy, without paying Foley for the losses sustained under the policy. As a result, we find that the trial court did not err in determining that Scottsdale ratified the third-party defendants’ allegedly unauthorized acts.
The next question is whether Scottsdale has a claim against the third-party defendants for breach of contract even though Scottsdale failed to repudiate those parties’ allegedly unauthorized ac- lions. Resolution of this issue requires the application of agency law. The general rule is that an “agent may be subject to liability to his principal because he has made an unauthorized contract for which his principal is liable.” Restatement (Second) of Agency § 383, comment e (1957). However, “[t]he ratification or other affirmance by a principal of an unauthorized act done by an agent in excess of his or her power to bind the principal releases the agent from liability for damages to the principal for having violated a duty to the principal.” Restatement (Second) of Agency § 416 (1957). The following is an example of when an agent is released from liability to the principal:
“A, agent for P for delivering goods, is directed to deliver them only upon receipt of cash. A delivers the goods to T on one month’s credit, the transaction not binding to P. Upon learning of A’s lack of authority, T offers to return the goods. P, however, says that he is satisfied with the transaction. Subsequently, T becomes insolvent and does not pay for the goods. A is not liable to P.” Restatement (Second) of Agency § 416, illus. 1 (1957).
Although this is apparently an issue of first impression in Kansas, other jurisdictions have addressed whether an agent could be held liable where the principal ratified the agent’s arguably unauthorized actions. For example, Barta v. Kindschuh, 246 Neb. 208, 518 N.W.2d 98 (1994), addressed whether the sellers of a home were entitled to indemnification from their real estate agent for damages suffered by the sellers for an alleged misrepresentation regarding the condition of the home. The Nebraska Supreme Court affirmed the trial court’s grant of summary judgment in favor of the real estate agent. The Barta court held that even if the real estate agent exceeded his authority by failing to note the correct information as to the condition of the home on a form provided to the buyers, the sellers acquiesced in and ratified the agent’s acts when the sellers read and signed the form that included misrepresentations regarding the condition of the home. 246 Neb. at 214-15.
Other cases have held similarly. See, e.g., Brooks v. January, 116 Mich. App. 15, 321 N.W.2d 823 (1982) (holding that because a dissident faction of a church congregation ratified their pastor’s unauthorized sale of property, the pastor was relieved from liability to the church); Southwest Title Ins. Co. v. Northland Bldg., 542 S.W.2d 436 (Tex. App. 1976), rev’d in part on other grounds 552 S.W.2d 425 (Tex. 1977) (holding that because the title insurance company ratified its agent’s arguably unauthorized actions, the agent could not be held fiable to the title insurance company); Rakestraw v. Rodrigues, 8 Cal.3d 67, 104 Cal. Rptr. 57, 500 P.2d 1401 (1972) (holding that because a wife ratified forgery of her name on a deed of trust, the agent was relieved of liability to the principal).
We find that Scottsdale’s ratification of the third-party defendants’ allegedly unauthorized actions released those parties from liability to Scottsdale for having violated any duties those parties had to Scottsdale. After Bryant’s accident, Scottsdale knew and was capable of understanding that the third-party defendants’ allegedly unauthorized actions added Foley as an additional insured to the All Temp policy. Despite this knowledge, Scottsdale failed to repudiate the third-party defendants’ actions. The law does not permit a principal to ignore violations of its instructions to its agents, but yet receive indemnification from those parties for their unauthorized actions.
Nevertheless, Scottsdale argues that exceptions to the release of an agent’s liability for breach of contract with a principal are applicable in the instant case. Even if a principal ratifies an agent’s unauthorized act, the agent is not released from liability to the principal if: (1) the principal “is obligated to affirm the act in order to protect his own interests”; or (2) the principal “is caused to ratify by the misrepresentation or duress of the agent.” Restatement (Second) of Agency § 416 (1957). According to Scottsdale, these exceptions are applicable because it was forced to ratify the third-party defendants’ actions in order to protect its own interests or, alternatively, was forced to ratify because the third-party defendants failed to disclose their breaches until after liability attached under the policy.
The first exception, however, is not applicable in the instant case. The following is an example of when the first exception is applicable:
“Purporting to act as agent for P but without power to bind him, A lends money to T, taking a note in P’s name. T uses the money and becomes insolvent before P learns the facts. P files a claim in bankruptcy, based on the note, against T’s estate, in order to participate in a fifty per cent dividend. A is subject to liability to P for P’s loss.” Restatement (Second) of Agency § 416, illus. 2 (1957).
Clearly, the present case is distinguishable from this illustration. Scottsdale’s ratification of the third-party defendants’ allegedly unauthorized actions did not protect any of Scottsdale’s interests. Because Scottsdale was not obligated to affirm the third-party defendants’ actions to protect its own interests, the third-party defendants are not subject to liability for Scottsdale’s losses under the first exception.
In addition, the second exception does not apply to this case. Scottsdale argues that it did not become aware of its increased risk until after Bryant’s accident and by then it was too late to repudiate the third-party defendants’ actions. However, even if it was too late for Scottsdale to repudiate the third-party defendants’ actions after Bryant’s accident in order to avoid liability to Foley, Scottsdale nevertheless could have repudiated the third-party defendants’ actions for purposes of Scottsdale’s indemnity claim against those parties. Had Scottsdale repudiated the third-party defendants’ actions when it learned Foley was named as an additional insured on All Temp’s policy, Scottsdale could have collected from the third-party defendants the amount it would be required to pay Foley as a result of Bryant’s accident, provided the third-party defendants were Scottsdale’s agents and their actions were unauthorized. Because Scottsdale failed to timely repudiate, it must be bound by the third-party defendants’ actions.
Finally, at oral argument, Scottsdale argued that the holding in Hays v. Farm Bureau Mut. Ins. Co., 225 Kan. 205, 589 P.2d 579 (1979), can be applied to the present case. In Hays, our Supreme Court concluded that an insurance agent can incur personal liability for a loss suffered by the agent’s principal under a policy claim resulting from the agent’s failure to forward an application for insurance to the insurance company. 225 Kan. 205, Syl. ¶ 3. Scottsdale argued that the factual situation in Hays is analogous to the facts in the instant case. We disagree. We note a key factual dissimilarity between the two cases. Unlike the present case, the insurance company in Hays never ratified the actions of the insur anee agent. Because of this key factual difference, the Hays holding is not controlling on the issue of indemnification in. the present case. • • '
We find that Scottsdale’s ratification of the third-party defendants’ actions relieved those parties of liability, as' a matter of law. As a result, the trial court did not err in granting the third-party defendants’ motion for summary judgment. Because we are affirming the trial court’s grant of summary judgment in favor of the third-party defendants, it is unnecessary to address the issue raised in MCI and Felber’s cross-appeal.
Affirmed; cross-appeal dismissed. | [
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Green, J.:
Anthony C. Smith was convicted by a jury of possession of cocaine and failure to have a drug tax stamp. The jury acquitted him of possession of drug paraphernalia. On appeal, Smith argues (1) that the State’s cross-examination of him constitutes plain error, (2) that the trial court erred by allowing the State to introduce evidence regarding the sentence ranges for a possession of cocaine conviction, and (3) that the State committed prosecutorial misconduct by repeatedly referring to him as a liar. We reverse and remand for a new trial.
On April 2, 1997, police executed a search warrant on Smith’s mother’s home. The search warrant authorized the police to search for items related to a robbexy for which Smith was a suspect. When the search warraxxt was executed, Sxnith was not living at his mother’s home.
Police knocked on the front door of the home, but no one answered. One of the officers noticed an individual near the back door of the residence, and the order was given to kick in the front door. The officers found Smith inside the residence.
During the search of the home, the police did not find any items relating to the robbery. In a bathroom cabinet, however, officers found a brown paper sack that contained drug paraphernalia, syringes, a white substance later detennined to be cocaine, and a receipt from Grave’s Drug Store for the syringes. The sales receipt was dated April 2, 1997, the day the search warrant was executed.
The officers read Smith his Miranda rights and questioned him about the drugs found in the bathreoxn. Smith denied owning the drugs and told police that he was not living in the house. The officers then asked Smith whether the drugs belonged to his mother. Smith testified that the police threatened to have his mother arx'ested for possession of cocaine if he did not confess that the drugs were his. Smith then asked to speak to Officer Ron Davis who was a family friend.
Smith told Officer Davis that he had been watching drug dealers to see where they hid their drugs. According to Smith, that morning he retrieved drugs stashed by drug dealers at a laundromat and hid the drugs in a cabinet in his mother s house. Smith was charged with possession of cocaine, possession of paraphernalia, and failure to have a drug tax stamp.
At trial, an employee from Grave’s Drug Store testified that sometime after 9 a.m. on April 2, 1997, she sold syringes to a tall black man. The employee was unable to identify Smith as the individual who purchased the syringes.
Bradley Kevin Harvey testified that he and Dwight Baker went to Grave’s Drug Store on April 2, 1997, and that Baker purchased the syringes. After purchasing the syringes, Harvey and Baker went to Smith’s mother’s home where they stashed the bag in the bathroom cabinet. Harvey and Baker then went to buy some beer. Upon returning to the residence, they saw the police cars and left.
Harvey testified that the contents of the brown paper bag belonged to him. The State, however, sought to discredit Harvey’s testimony by trying to establish that Harvey had a motive to lie. According to the State, Harvey’s motive to lie was that if he were convicted of possession of cocaine, he would receive a nonprison sentence. Harvey, however, denied having any knowledge of the Kansas Sentencing Guidelines and denied discussing the guidelines with anyone prior to his testimony. Moreover, Harvey believed that if he were convicted he would automatically go to prison.
To establish that Harvey had a motive to lie about possessing the cocaine, the State called Lyon County District Attorney Joe Lee as a rebuttal witness. Smith objected to Lee’s testimony as irrelevant, improper, and creating impermissible inferences of both Harvey’s and Smith’s criminal histories. The objection was overruled and the State asked Lee hypothetical questions regarding the sentence a person would face for a conviction of possession of cocaine if the offender did not have a criminal history or if the offender’s criminal history consisted of either one nonperson felony or misdemeanors.
States Cross-Examination of Smith
Smith argues that the State committed plain error when cross-examining him. Specifically, Smith contends that the State improperly asked him to comment on the veracity and credibility of the State’s witnesses.
As noted by the S'ate, however, Smith failed to object to this type of questioning. A point not raised in the trial court cannot be raised for the first time on appeal. State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994). Because Smith failed to present this argument to the trial court, he is precluded from raising the issue on appeal.
Evidence of Sentence Ranges for Possession of Cocaine Conviction
Smith next argues that the trial court erred when it allowed the State to impeach Harvey by presenting evidence regarding the sentence ranges for a possession of cocaine conviction if the offender did not have a criminal history or if the criminal history was minimal. Smith timely objected to this sentencing evidence. Because the State’s unique method of impeachment has not been tested in the Kansas appellate courts, the issue of whether the State may present evidence of sentence ranges to impeach a witness’ credibility is an issue of first impression.
Improper Method of Impeachment
Smith contends that the expert testimony regarding the sentence ranges was an improper method of impeaching a witness. The State sought to discredit Harvey’s testimony that the drugs were his by showing that he had a motive to lie. According to the State, Harvey was motivated to he for Smith because Harvey would receive a nonprison sentence for a conviction of possession of cocaine. PIowever, although Harvey testified that he had not been convicted of possession of cocaine after the defense failed to object to an improper question by the State, no evidence was presented establishing his criminal history.
The admission of rebuttal evidence lies within the sound discretion of the trial court, and the trial court’s ruling will not be re versed absent a clear abuse of tbe exercise of that power of discretion. State v. Davis, 237 Kan. 155, 159, 697 P.2d 1321 (1985).
Use of the sentencing evidence was not a proper method of impeachment because the evidence was inadmissible under our rules of evidence. K.S.A. 60-420 provides: “Subject to K.S.A. 60-42.1 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party . . . may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.” In addition, K.S.A. 60-421 states that “[ejvidence 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.” K.S.A. 60-422 places further limitations on admissibility of evidence affecting the credibility of a witness. The pertinent sections of the statute are (c) and (d), which prohibit “evidence of traits of [the witness’] character other than honesty or veracity or their opposites” and “evidence of specific instances of [the witness’] conduct relevant only as tending to prove a trait of his or her character.”
The State theorized that Harvey was motivated to lie for Smith because Harvey was only risking probation by admitting that the drugs were his. To prove this conclusion, the State needed to supply three premises: (1) that Harvey did not have a criminal history, (2) that an individual without a criminal history would receive presumptive probation under the Kansas Sentencing Guidelines Act, and (3) that presumptive probation is a motive to fie. Our rules of evidence, however, prevented the State from presenting evidence of Harvey’s criminal history. See K.S.A. 60-421; K.S.A. 60-422.
Even though the State did not present evidence of Harvey’s criminal history, it nevertheless introduced evidence on the sentence ranges for a conviction of possession of cocaine. The State presented hypothetical evidence as to the punishment for a conviction of possession of cocaine if the offender did not have a criminal histoiy. Under these circumstances, however, hypothetical questioning was not an acceptable method of impeachment.
First, the hypothetical questions were not proper impeachment because the State failed to frame the questioning so as to recite all the facts in evidence which were relevant to the formation of the expert opinion. See Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 106, 490 P.2d 619 (1971). The State asked the expert witness general questions regarding the punishment for a conviction of possession of cocaine if the offender did not have a criminal history. Although this line of questioning was intended to impeach Harvey, the State did not frame the questions so as to ask specifically about the punishment Harvey would receive if he was convicted of possession of cocaine. As a result, the jury was left to speculate as to who the sentencing evidence was intended to impeach.
Although the State did not explicitly link the sentencing evidence to Harvey, the connection was strongly inferred. As such, the hypothetical questioning unfairly suggested that Harvey did not have a criminal history, a fact which was not in evidence. “The rule of this jurisdiction is that hypothetical questions put to an expert witness should be based upon only such facts as the evidence tends to prove, and if as to any material hypothesis, such question is without the support of the evidence, it should be excluded.” (Emphasis added.) Miles v. Schwan Distributing Co., Inc., 214 Kan. 656, 657, 522 P.2d 435 (1974). Moreover, “[a] hypothetical question which distorts instead of reflecting the evidence should not be permitted.” New York Life Ins. Co. v. Doerksen, 75 F.2d 96, 102 (10th Cir. 1935). Because the State’s hypothetical questions were not based on facts in evidence, the State improperly inferred that Harvey did not have a criminal history. The sentencing evidence which inferred that Harvey did not have a criminal history was inadmissible under K.S.A. 60-422(c) and (d) because the evidence was improper character evidence in that it did not go to honesty or veracity.
The sentencing evidence not only implied that Harvey did not have a criminal history, but also suggested that Smith did have a criminal history since, according to the State, it was necessary for someone other than Smith to assume responsibility for the drugs. Even though the State told the trial court that “it is not my intention to compare the defendant with the witness,” the sentencing evidence undoubtedly caused the jury to make that comparison. The implication that a defendant committed crimes in the past is improper because it unfairly prejudices the jury against the defendant. See State v. Hutcherson, 25 Kan. App. 2d 501, 506-07, 968 P.2d 1109 (1998) (holding that the defendant did not receive a fair trial because the prosecution referred to the defendant as a criminal and made other derogatory statements during closing argument). The prosecutorial misconduct aspect of the State’s implication that Smith is a criminal is addressed more fully below. Nevertheless, the State’s hypothetical questioning of the expert witness improperly inferred that Smith had a criminal history. K.S.A. 60-421 prohibits evidence that a witness has been convicted of a crime, unless the criminal act involved dishonesty or false statement. Moreover, when the witness is a defendant, this statute bars all evidence of previous convictions involving crimes of dishonesty or false statements unless the defendant “opens the door” by introducing evidence of his credibility. State v. Logan, 236 Kan. 79, 83, 689 P.2d 778 (1984).
Opening the Door for Inadmissible Evidence
Now, we must turn our attention to whether Smith opened the door for the admission of the sentencing evidence. “[W]hen a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere.” State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995). Smith, however, did not present evidence that Harvey was risking something by testifying on Smith’s behalf. As a result, Smith did not open the door for the State to present inadmissible evidence on the punishment for a conviction for possession of cocaine.
Although the defendant may open the door for the State to present inadmissible evidence, the State cannot open the door for itself. In State v. McClanahan, 259 Kan. 86, Syl. ¶ 1, 910 P.2d 193 (1996), our Supreme Court held: “The rule that a party can open the door to otherwise inadmissible evidence applies only when one party opens the door for another party to present such evidence. A party cannot open the door for itself to present the inadmissible evidence.”
The State used the evidence that Plarvey has not been convicted of possession of cocaine to open the door to the sentencing guidelines evidence. After defense counsel objected to the testimony on the sentencing ranges, the State argued the following to the trial court outside the presence of the jury:
“Mr. Lee is being called to show the jury that Mr. Harvey has a motive to lie. He is not risking anything by lying here. He’s gotten on the stand and testified he has no prior convictions for possession of cocaine. I expect Mr. Lee to testify that if convicted of possession of cocaine with no prior convictions his presumptive sentence would be nonprison, would be probation.” (Emphasis added.)
The State’s assertion that Harvey does not have a criminal history is not logically valid. Just because Harvey has not been convicted for possession of cocaine does not mean he lacks a criminal history. Harvey may have been convicted of other offenses which would affect his criminal history score. The State substituted the premise that Harvey does not have a conviction for possession of cocaine for the premise that he does not have any convictions at all. By doing this, the State used Harvey’s response to its improper question to convince the trial court that the sentencing evidence should be admitted.
Although the State may not open the door for inadmissible evidence, that is precisely what occurred. The State used Harvey’s statement that he had not been convicted of possession of cocaine to open the door for the testimony on the sentencing guidelines. The State’s scheme contradicts K.S.A. 60-422 because evidence of Harvey’s character and specific instances of conduct were improperly introduced. As a result, we find that the door had not been opened for the State to present the inadmissible sentencing evidence.
Furthermore, a “prosecutor is under a duty to insure that only competent evidence is submitted to the jury.” State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993). Here, the State violated that duty by putting the improper sentencing evidence before the jury. As a result, we find that the expert testimony on the sentencing evidence was not a proper method of impeachment and was inadmissible under our rules of evidence.
Relevancy
Another reason the expert testimony should not have been admitted is that the evidence was irrelevant. Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). Evidence is rejected for remoteness “ ‘ “[wjhen the fact or facts proposed to be established as a foundation from which indirect evidence may be drawn, by way of inference, have not a visible, plain, or necessary connection with the proposition eventually to be proved.’ ” (Citation omitted.)” State v. Pichon, 15 Kan. App. 2d 527, 533, 811 P.2d 517 (1991).
We see no justification for the admission of the sentencing evidence for purposes of impeachment. The expert testimony was remote because the sentencing evidence did not have a plain connection to the State’s theory that Harvey was motivated to he for Smith. As noted previously, the sentencing evidence consisted only of testimony as to the sentence for an offender without a criminal history or a minimal criminal history. Because the expert witness did not testify as to what type of criminal history that Harvey possessed and what type of sentence he would receive for a conviction for possession of cocaine, the testimony was not logically related to the State’s impeachment theory.
Moreover, the connection between the sentencing evidence and the State’s theory that Harvey lied to protect Smith requires an unrealistic leap of faith. It is difficult to understand how an individual is not risking anything by admitting that he or she committed a felony. A felony conviction results in serious consequences, including the creation of a criminal history and difficulty obtaining employment. Moreover, even if an offender would have no previous criminal history and would qualify for presumptive probation, there is no guarantee that the offender would get probation. If certain departure factors were met, the offender would be sentenced to prison. See K.S.A. 21-4717; K.S.A. 21-4718; K.S.A. 21-4719. Even if the offender does get probation, that punishment is a significant restriction on the offender. Because a first-time offense of possession of cocaine carries relatively steep repercussions, the State’s theory that Harvey was risking little by falsely testifying is not logical. As a result, we are left with the undeniable conclusion that the admission of the sentencing evidence was erroneous.
Next, we must determine whether the admission of the sentencing evidence was harmless error. The question of harmless error in criminal cases was addressed in State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995), rev’d on other grounds State v. Bedford, 269 Kan. 315, 7 P.3d 224 (2000). The Sanders court noted that “[e]rror in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice.”
Here, the trial court’s erroneous admission of the sentencing evidence is inconsistent with substantial justice. The error affirmatively prejudiced Smith’s substantial rights because the sentencing evidence inferred that Smith was a criminal and unfairly discredited his key witness. The sentencing evidence was especially prejudicial considering that no physical evidence connected Smith to the cocaine. After consideration of all of the evidence, we hold the trial court’s admission of the sentencing evidence was not harmless error under the facts and circumstances of this case.
Prosecutorial Misconduct
Smith also contends that the State committed prosecutorial misconduct by repeatedly referring to him as a liar during closing argument. The State argues that Smith did not object to the prosecutor’s statements and, furthermore, that the statements were not so gross and flagrant as to prejudice Smith’s right to a fair trial and require a reversal.
Our Supreme Court recently reviewed the standard of review for prosecutorial misconduct during closing argument in State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000). The Pabst court, in finding reversible error when the State called the defendant a liar during closing argument, noted:
“Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial. See State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999). Some complained-of prosecutorial statements were not objected to at trial. If the claimed error has been determined to implicate a defendant’s right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, tire issue will be addressed. State v. McCorkendale, 267 Kan. 263, Syl. ¶ 6, 979 P.2d 1239 (1999).
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 (1999).” 268 Kan. at 504-05.
Several other recent cases found reversible error where the State called the defendant a liar during closing arguments. See, e.g., Hutcherson, 25 Kan. App. 2d at 506-07 (holding that the defendant did not receive a fair trial because the prosecution called the defendant a liar, a criminal, and a drug dealer during closing argument); State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (finding reversible error where the prosecutor suggested that the defendant and defense counsel were lying to the jury).
Unlike the defendants in the above-cited precedents, Smith made an issue of his veracity by giving inconsistent statements. First, Smith told Officer Davis that he stole the drugs from drug dealers and hid the drugs in his mother’s house. At trial, however, Smith changed his story and testified as follows:
“And that’s when I went into a bold-faced lie, a story, that Ron Davis set there eye to eye and Ron Davis knew I was lying about staying up all night watching drug dealers hide dope under cars, in holes in the walls, you know. That’s common knowledge if you watch TV or cops, you know, and that’s basically where this story came from. And I was just trying to make a deal. Told Ron Davis that I knew some drug dealers that I was willing to give up to him if he can get this drug squashed where nobody . . . would have no repercussions; I wouldn’t be charged with it and no one at my mother’s house would be charged with it. And that’s when I went and told Ron Davis about this story.”
Smith further testified that after speaking with Officer Davis, he learned that the drugs belonged to Harvey.
During closing arguments, the State made the following comments regarding Smith’s inconsistent statements:
“The defendant wants you to believe that he was lying back in April [when iie spoke with Officer Davis], There is no doubt whatsoever that he’s a liar. Given the best picture here, the best for him, he’s lying in April. He’s definitely a liar one way or another. He’s lied. He wants you to believe it was back then. He wants you to believe that with all the details he gave back then, he wants you to believe that with all the physical evidence that was seen back then that verified his story back then that that’s the lie.
“. . . The defendant has disagreed with everyone whose testimony could hurt him. Even people who have absolutely no reason to lie about this. The defendant only wants you to believe a liar [Smith] and the guy [Harvey] who came in here risking almost nothing who said on the stand, I would do anything I could for him. What do you believe? The guy who testified this morning, his statement can’t be corroborated by any kind of physical evidence.” (Emphasis added.)
Prosecutors are given wide latitude to craft an argument that includes reasonable inferences based on the evidence. “When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as. to any witness’ veracity rests solely with the juiy.” Pabst, 268 Kan. at 507.
Here, it was permissible for the State to point out the inconsistencies in Smith’s statements. Both versions of Smith’s story cannot be true and at least one of the versions must be fabricated. By telling inconsistent stories, Smith opened the door for the State to comment on the reasonable inference that his testimony was not believable. Specifically, it was permissible for the State to argue that Smith’s testimony that the drugs belonged to Harvey was not credible based on his statement to Officer Davis.
Nevertheless, it was the duty of the jury, not the State, to ultimately decide which, if any, of Smith’s statements was believable. As such, the prosecutor should have confined his arguments to what the evidence showed: Smith’s statements were inconsistent. Instead of simply pointing out the inconsistencies in Smith’s statements and noting that at least one of the stories must be fabricated, the prosecutor used prejudicial language when he made statements such as, “There is no doubt whatsoever that he’s a liar.”
Although the State is permitted wide latitude in closing argument and may point out inconsistencies in a defendant’s statements, we find that the State committed prosecutorial misconduct by repeatedly referring to Smith as a liar. The State’s unprofessional comments on the evidence He far beyond the traditional wide latitude afforded to prosecutors in closing argument. See Lockhart, 24 Kan. App. 2d at 492. As a result, even though Smith opened the door for fair comment on his veracity, we find that the prosecutor committed prosecutorial misconduct by repeatedly referring to Smith as a bar during closing arguments.
The remaining question is whether the prosecutor’s improper statements denied Smith a fair trial by unfairly prejudicing the jury against him. See State v. Whitaker, 255 Kan. 118, Syl. ¶ 7, 872 P.2d 278 (1994). Specifically, we must determine whether the remarks are so gross and flagrant as to prejudice the jury against Smith and deny him a fair trial. Pabst, 268 Kan. at 505.
We find that Smith did not receive a fair trial. The improper remarks of the prosecutor during closing argument coupled with the ongoing inference that Smith was a criminal were so gross and flagrant as to prejudice the jury against Smith. The prosecutorial misconduct began during the presentation of the evidence when the State insinuated that Smith had a criminal history and continued through closing argument when the State repeatedly called Smith a bar. It cannot be said that the cumulative nature of the State’s misconduct did not prejudice Smith’s right to a fair trial, especially considering the fact that no physical evidence connected Smith to the drugs.
Assessment of Punishment by the Jury
Finally, Smith argues that testimony regarding the possible sentences for a conviction of possession of cocaine improperly placed the assessment of punishment and the disposition of the case before the jury. This argument is flawed because the jury was instructed on PIK Crim. 3d 51.10: “Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.” Because the jury was instructed that it was not its duty to consider Smith’s penalty, Smith’s argument fails.
Reversed and remanded for a new trial. | [
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Marquardt, J.:
Robert J. Braun appeals the trial court’s grant of summary judgment to Donald E. Shultz because Robert’s petition was filed after the statute of limitations had expired.
In 1993, Simon Roth, Jr. and Lelyn J. Braun filed suit against Robert J. Braun alleging malicious prosecution. The petition was later amended to include causes of action for intentional verbal and physical assaults and punitive damages. In February 1994, Roth and Lelyn filed, a motion for judgment on the pleadings, which was sustained. The trial court held a hearing and awarded damages of $140,000 and punitive damages of $20,000.. Robert appealed to this court, and the decision of the trial court was re versed and remanded in Roth v. Braun, No. 75,401, unpublished opinion filed September 13, 1996, rev. denied 260 Kan. 995 (1996).
Roth and Lelyn refiled the case with the trial court. At some point, Roth and Lelyn moved to dismiss the case without prejudice pursuant to K.S.A. 1999 Supp. 60-241(a)(2). The trial court dismissed the case with prejudice. Roth and Lelyn appealed the dismissal, and the judgment was affirmed in Roth v. Braun, No. 80,363, unpublished opinion filed November 13, 1998.
On November 17, 1999, Robert filed suit against Roth, Lelyn, and their attorney, Donald E. Shultz. Robert alleged numerous causes of action, including: conversion; wrongful execution; intentional infliction of emotional distress; abuse of process; malicious oppression; collusion; and deceit. Roth, Lelyn, and Shultz all responded with the affirmative defense that the statute of limitations for Robert’s actions had expired. Robert and Shultz filed motions for summary judgment.
The trial court determined that all of Robert’s claims stemmed from this court’s reversal of the judgment in favor of Roth and Lelyn, which was filed on September 13,1996, and that the 2-year statute of limitation applied to all of Robert’s claims. The trial court granted Shultz’ motion for summary judgment and dismissed Robert’s claims. Robert timely appeals to this court.
On appeal, Robert claims that the date for determining the applicable statute of limitations is not when the acts occurred, but when the cause of action accrues. Robert argues that the first time he could have prosecuted this case to a successful conclusion was December 23,1998. Robert contends that the statute of limitations for his claims as tolled during the remand proceedings on Roth and Lelyn’s original action, and he did not have the opportunity to file an action until a final judgment was rendered.
Summary judgment is proper where the only question or questions presented are questions of law. Bold v. Spitcaufsky, 24 Kan. App. 2d 135, 137, 942 P.2d 652, rev. denied 262 Kan. 959 (1997). The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
K.S.A. 1999 Supp. 60-513(a)(4) states that an action for injury to the rights of another, not arising on contract, and not herein enumerated, shall be brought within 2 years.
In general, the running of the statute of limitations for a cause of action commences as soon as the right to maintain a legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his or her action to a successful completion. Bold, 24 Kan. App. 2d at 141. A plaintiff cannot file and maintain an action against a defendant until he or she suffers some injury or some damage. Complete certainty is not required, but damages cannot be awarded when they are too conjectural and speculative to form a sound basis for measurement. Bold, 24 Kan. App. 2d at 142.
The statute of limitations is not tolled during the pendency of litigation between parties who are seeking to have the same matter adjudicated on another basis. 51 Am. Jur. 2d, Limitation of Actions § 207, p. 584. .
The judgment against Robert was reversed on September 13, 1996. At that point, Robert could have filed his complaint against Roth and Lelyn. He knew what damages he suffered as a result of the judgment and could begin to prosecute his case to completion. See Bold, 24 Kan. App. 2d at 141-42.
It is inconsequential that Roth and Lelyn could have refiled their case. Robert knew in September 1996, that he could file his complaint. It was not necessary for Robert to wait until this court ruled on Roth and Lelyn’s appeal from the dismissal with prejudice before filing his action.
We agree with the trial court that Robert’s causes of action were barred by the applicable statute of hmitations.
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Buchele, J.:
On August 30,1997, Christopher Linenberger was stopped while driving by Officer Nixon after the officer had reasonable grounds to believe Linenberger was driving under the influence of drugs or alcohol. Linenberger failed several sobriety tests and refused to take a breath test. That same day Officer Nixon completed a certification and notice of driver’s license suspension form and personally served it on Linenberger. A copy of the form was not received by the Kansas Department of Revenue (KDR) until October 3, 1997.
On October 9, 1997, Linenberger was notified that due to his refusal to take the breath test, his driver’s license had been suspended for 1 year, beginning September 29,1997. On October 10, 1997, Linenberger requested an administrative hearing regarding the suspension of his license. During the hearing, Linenberger moved to dismiss the case because Officer Nixon had not complied with K.S.A. 1997 Supp. 8-1002(e), in that he had waited more than 5 days to forward a copy of the certification and notice of suspension to KDR. Although the record is not clear, this motion was apparently denied because on May 19, 1998, an administrative order was issued suspending Linenberger s license for 1 year.
Linenberger subsequently filed a petition for review with the district court. The court found that because Officer Nixon had failed to comply with K.S.A. 1997 Supp. 8-1002(e), KDR lacked subject matter jurisdiction over Linenberger and permanently enjoined KDR from suspending Linenberger’s license.
Resolution of this question requires interpretation of K.S.A. 1997 Supp. 8-1002(e), which requires local authorities to certify to KDR the refusal of a breath test. It is undisputed in this case that Officer Nixon failed to mail the certification and notice of suspension to KDR within 5 days as required by K.S.A. 1997 Supp. 8-1002(e). The interpretation of a statute is a question of law over which this court has unlimited review. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993); State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 1997 Supp. 8-1002(e) outlines the procedure an officer is to follow when a person still in custody refuses to take or fails a drug or alcohol test after the officer has reasonable grounds to believe he or she was driving under the influence of drugs and/or alcohol. K.S.A. 1997 Supp. 8-1002(e) reads: “Within five days after the date of service of a copy of the law enforcement officer’s certification and notice of suspension the officer’s certification and notice of suspension, along with any license taken, shall be forwarded to the [KDR].”
KDR argues that the district court erred by failing to follow controlling law established by this court in Schulz v. Kansas Dept. of Revenue, 19 Kan. App. 2d 665, 877 P.2d 1 (1993), when the court considered the State’s compliance with K.S.A. 1997 Supp. 8-1002(e).
In Schulz, KDR suspended Schulz’ driver’s license following a failure of a blood alcohol test. Schulz requested an administrative hearing to challenge his suspension. An administrative order affirmed the suspension and Schulz sought judicial review with the district court. The court denied the State’s motion to dismiss based on the State’s noncompliance with the 5-day certification requirement of K.S.A. 8-1002(e). In its final order, the court reversed the administrative order and ordered that Schulz’ driver’s license not be suspended.
In Schulz, KDR argued to this court that the certification requirement of K.S.A. 8-1002(e) could not be raised at the administrative hearing and, therefore, were not properly before the district court. This court agreed. 19 Kan. App. 2d at 667. K.S.A. 1997 Supp. 8-1002(h)(l) sets forth the issues which may be considered by KDR at the administrative hearing when a person refuses to take a test. Subsection (2) sets forth the issues which may be considered by KDR at the administrative hearing when a person fails a test. See Schulz, 19 Kan. App. 2d at 668.
K.S.A. 1997 Supp. 8-1002(h)(l) reads:
“If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether: (A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under tire influence of alcohol or drugs, or both . . . (B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (C) a law enforcement officer had presented the person with the oral and written notice required by K.SD.A. 8-1001, and amendments thereto; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.”
K.S.A. 1997 Supp. 8-1002(h)(2) includes the above issues as well as four additional provisions that relate to challenges on the test that was performed.
The Schulz court stated that with respect to K.S.A. 1997 Supp. 8-1002(h)(2) and test failures, K.S.A. 1997 Supp. 8-1002(h)(l) clearly does not include the 5-day certification requirement of K.S.A. 1997 Supp. 8-1002(e) in the issues that may be raised at the administrative hearing. Since the certification requirement of K.S.A. 1997 Supp. 8-1002(e) was not an issue that could be raised before KDR at the administrative hearing, it can be said that the district court could not consider the issue on review. See 19 Kan. App. 2d at 668.
In an appeal from an administrative agency decision, a person is limited to the issues he or she raises at the administrative hearing. Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 321, 916 P.2d 47, rev. denied 260 Kan. 994 (1996). Because of the limited issues that may be raised at the administrative hearing, pursuant to K.S.A. 1997 Supp. 8-1002(h)(l), the issuance of the 5-day certification requirement of K.S.A. 1997 Supp. 8-1002(e) was not properly before either KDR at the administrative hearing or the district court on appeal from the administrative order. Schulz, 19 Kan. App. 2d at 669.
Linenberger argues, however, that compliance with the certification requirement of K.S.A. 1997 Supp. 8-1002(e) is an issue of subject matter jurisdiction, which can be raised at any time. He cites to Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 349, 853 P.2d 69, rev. denied 253 Kan. 856 (1993), in support of his argument.
In Anderson, the controlling issue was whether the district court erred in determining that personal service of the DC-27 form, i.e., notice of suspension, was required in order for KDR to suspend a person’s driver’s license. KDR argued that this issue could not be considered because it was not one listed in K.S.A. 8-1002(h)(l). This court found that personal service could be raised, finding that K.S.A. 8-1002(h)(l) “speaks only to substantive issues and does not attempt to limit procedural issues.” 18 Kan. App. 2d at 349.
Neither Anderson nor Schulz stands for the proposition that failure to comply with the certification requirement of K.S.A. 1997 Supp. 8-1002(e) denies KDR subject matter jurisdiction to conduct an administrative hearing regarding suspension of a driver’s license. In Anderson, the court addressed the issue of failure to make personal service. Schulz was concerned with forwarding a copy of the certification and notice of suspension to KDR. In K.S.A. 1997 Supp. 8-1002(h)(l), the Kansas Legislature limited the issues that may be considered at an administrative hearing. Whether the arresting officer made a timely certification is not among the issues that may be reviewed at an administrative hearing.
Based upon our decision in Schulz, we find the district court erred in considering the certification requirement in an administrative hearing. We do not believe that failure to file a certification within 5 days denies KDR jurisdiction or a licensee due process.
We are mindful that Schulz and our decision here leave no remedy for the enforcement of the 5-day certification requirement. We suggest that the legislature should address the 5-day certification requirement and/or what consequences should be imposed if the arresting officer fails to make timely certification of the notice of suspension.
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Parks, J.:
This is an interlocutory appeal by the State, pursuant to K.S.A. 22-3603, from the order of the district court suppressing use of a statement made by the defendant Karen Mooney after her arrest.
On September 23, 1984, police officers of the city of Hiawatha received a radio dispatch that a complaint had been filed against the defendant for assault with a handgun. The officers were given a description of the van defendant was believed to be driving and were instructed to stop the van and arrest her. Shortly thereafter, Officer Tony Allen and Deputy Rob Hendricks stopped the van in front of a drive-in. Officer Cynthia Reynolds arrived on the scene moments later.
Officer Reynolds testified that when she pulled up in her patrol car, Officer Allen was just getting out of his car. Officer Reynolds asked defendant, who stepped out of the passenger side of the van, to come back to her patrol car and place her hands on the hood. Officer Reynolds further testified that while she patted down defendant, she told defendant she was under arrest for assault and possibly aggravated assault. Without any questioning or prompting by Officer Reynolds, defendant, who was very upset and crying, stated, '“I hit Dominic but I don’t have a gun.” Defendant was then taken to the law enforcement center where she was advised of her Miranda rights and given a waiver, of rights form to sign. Defendant stood on her right to remain silent and made no further statements.
At the Jackson v. Denno hearing held to determine the admissibility of the statement made by defendant, Officer Allen disagreed with Officer Reynolds’ recollection of events. He stated that he spoke with the defendant prior to her search and arrest by Reynolds and asked whether he could search the van for a gun. He said that defendant consented to the search and then stepped back to Reynolds’ patrol car where she was searched and placed under arrest.
The trial judge ordered the statement given by defendant to be suppressed, ruling that it was not voluntarily made. The trial judge did not hold that the statement was elicited through interrogation but concluded that it was involuntary. The State appeals.
Defendant contends that this appeal is not within the scope of the court’s jurisdiction over interlocutory appeals. K.S.A. 22-3603 clearly provides that the State may take an interlocutory appeal when the district court, prior to the commencement of trial, makes an order “quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission.” (Emphasis supplied.) Nevertheless, defendant contends that the State is additionally required to demonstrate a substantial impairment of its ability to prosecute the case before jurisdiction will lie. Defendant makes this argument relying on the recent decision in State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984).
In Newman, the Court considered the scope of jurisdiction over orders “suppressing evidence.” In an earlier Court of Appeals case, it was held that this language in K.S.A. 22-3603 only included suppression orders.based on constitutional rulings so that interlocutory appeals could not be taken from rulings suppressing evidence as a result of the application of the ordinary rules of evidence. State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980). In Newman, the Supreme Court rejected this distinction between constitutional and evidentiary suppression orders and held that K.S.A. 22-3603 was intended to permit interlocutory appeals of pretrial rulings which may be determinative of the case. The Court acknowledged that not all pretrial suppression orders should be appealable and, thus, held that the State is required to establish that the suppression order placed it in a position where its ability to prosecute the case would be substantially impaired before its appeal could be heard. Newman, 235 Kan. at 35. Newman determined that the jurisdictional basis for the appeal of a suppression order should be premised on its impact on the prosecution’s case whereas Boling had adopted a distinction based on the rationale of the order excluding evidence. In sum, Newman broadened the scope of appellate jurisdiction by interpreting the statute as permitting appeal of some orders based on evidentiary exclusion rules while still limiting jurisdiction to rulings of significant impact.
However, both Boling and Newman were only concerned with determining the proper definition of the statutory phrase “suppressing evidence”; neither decision considered the appealability of an order “quashing a warrant or a search warrant” or “suppressing a confession or admission.” The latter two types of suppression orders are specific and identifiable, while an order suppressing evidence is general and may include any number of rulings including the suppression of a confession or evidence seized with a warrant. Thus, while it was necessary to interpret the statutory intent behind the jurisdictional basis for the appeal of orders “suppressing evidence,” no such interpretation of the other jurisdictional bases provided by K.S.A. 22-3603 has been made or is necessary. The holding in Newman has no bearing on this case.
In the statement suppressed by the trial court, defendant admitted being at the scene of the crime and striking one of the victims — an admission of simple battery. We conclude that when, as here, an order suppressing a confession or admission is entered by the district court, such ruling is appealable as a matter of right under K.S.A. 22-3603. Therefore, defendant’s claim that this court is without jurisdiction to hear the State’s appeal under K.S.A. 22-3603 is without merit.
Turning now to the substantive issue raised by this appeal, we must decide whether the trial court’s decision regarding the admissibility of defendant’s statement is supported by substantial competent evidence. State v. Andrews, 218 Kan. 156, 160, 542 P.2d 325 (1975). We conclude that it is not.
A pretrial statement by an accused may be found to be involuntary if it is elicited either through coercion or trickery or is derived from a custodial interrogation without the benefit of the Miranda warnings and a knowing and intelligent waiver of the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966); Andrews, 218 Kan. at 160. Therefore, the-trial court’s conclusion that defendant’s statement was involuntary would have to be upheld if there is evidence supporting the conclusion that any one of these three circumstances existed.
None of the evidence presented at the Jackson v. Denno hearing indicated that the procedure followed by the police prior to defendant’s statement could be characterized as coercion or trickery. The van was stopped and defendant was asked to step outside. She was patted down and asked if a search of the van could be conducted. Defendant consented to the search and was placed under arrest as the officer advised her of the charges which would probably be filed against her. It is well established that volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by the Miranda holding. Miranda, 384 U.S. at 478; State v. Jones, 222 Kan. 56, 60, 563 P.2d 1021 (1977). Moreover, an accused’s statement may be found to be voluntary and spontaneous and, thus, admissible even though it is made after the accused is arrested and in custody. Rhode Island v. Innis, 446 U.S. 291, 300-02, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980). State v. Miles, 213 Kan. 245, 246, 515 P.2d 742 (1973); State v. Broadus, 206 Kan. 766, 767-68, 481 P.2d 1006 (1971). Therefore, the fact of an arrest itself is not so coercive as to render a statement involuntary.
Furthermore, although defendant was certainly in custody when she uttered the incriminating statement, there is no evidence to suggest that the words or actions of either Officer Reynolds or Officer Allen could be characterized as an “interrogation” prompting the statement. In Innis, the United States Supreme Court emphasized that it is the compulsive aspects of interrogation which the Miranda decision was intended to mitigate. Innis, 446 U.S. at 300. Thus, the Court provided the following discussion of the definition of an “interrogation”.
“We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. at 300-02. See also State v. Taylor, 231 Kan. 171, 173, 642 P.2d 989 (1982).
Officer Reynolds testified that she ordered defendant to place her hands on the hood of her patrol car and then patted her down. Defendant said something to the effect that “you’ve got kids, you understand how I feel.” The police officer did not reply to this remark or ask any questions but told defendant she was under arrest and the possible charges against her. Defendant then made her incriminating statement and Officer Reynolds advised her not to say anything else. In short, Officer Reynolds did not engage in any conduct which could be construed as evocative other than the necessary activity attendant to the arrest. Rearing in mind the Innis definition of interrogation, there was no evidence to support the notion that defendant was interrogated by Reynolds.
Officer Allen testified that when he approached the van and defendant stepped out, he asked her if he could search the van for the gun which had allegedly been used. She replied, “go right ahead” and then stepped back to Officer Reynolds’ patrol car. While the request by Allen might be viewed as evocative, defendant did not respond by making an incriminating remark. The statement suppressed by the court was not heard by Officer Allen and was only made after defendant had been advised she was under arrest. Since Innis indicates that it is the effect police words or actions have on the defendant which determines whether an interrogation has begun, defendant’s noncommittal response to Allen indicates that she did not perceive the inquiry as an interrogation. In addition, our Supreme Court recently held that an arresting officer has the right to inquire as to the location of a weapon for the sake of his own protection. State v. Roadenbaugh, 234 Kan. 474, 477-80, 673 P.2d 1166 (1983). Such an inquiry was found not to violate the defendant’s Fifth Amendment privilege against self-incrimination even though it was asked prior to Miranda warnings being given and when the suspect had already been taken into custody. The Court indicated that the importance of the arresting officer’s personal safety prevents the characterization of the query “where’s the gun,” as an interrogation. Roadenbaugh, 234 Kan at 477.
In sum, although Officer Allen’s request to search the van for a gun might well be expected to elicit a denial or some comment by the suspect, defendant did not make any such reply. Moreover, the nature of Allen’s request is not the type of conduct which may-be categorized as either an investigatory or a custodial interrogation. Roadenbaugh, 234 Kan. at 477. Officer Allen had reason to believe that a gun had been used in the alleged assault and would rightfully want to immediately secure its possession for both safety and evidentiary reasons.
We conclude that there was no evidence which would support the conclusion that defendant’s statement was the product of trickery, coercion or a custodial interrogation. Indeed, all of the evidence indicates that defendant’s statement was spontaneously volunteered. Therefore, we find that the trial court erred in ordering the suppression of defendant’s statement. The State’s appeal is sustained.
The judgment of the trial court is reversed and the case remanded for further proceedings. | [
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Parks, J.:
Starla Jo Geisler filed a petition as next friend for her minor daughter, Mekea LaDawn Morehead, requesting a change of surname pursuant to K.S.A. 60-1401 et seq. The trial court refused to grant the requested change. Petitioner appeals.
The petitioner was born February 8, 1978, and her natural parents were divorced in April 1983. Thereafter, the mother married Terry D. Geisler on June 27, 1983. Petitioner has been living in the custody of her mother since the divorce of her parents. Petitioner’s natural father died on August 14, 1983, and petitioner has no personal contact with her paternal grandparents. In January 1984, the Geislers’ minor son was born and this petition for a name change was filed the following May. Notice of the proceeding to change petitioner’s surname to Geisler was served upon the paternal grandparents but they failed to appear at the hearing on the petition or in any way enter an appearance in the proceeding.
In denying petitioner’s requested name change, the trial judge made the following findings and conclusions:
“1. The authority in Kansas to change one’s name is statutory.
“2. The cases cited by counsel in support of his client’s position as set forth in 53 ALR 2d 914, et seq. appear to be in states which have specific statutory authority stipulating that a parent or parents of a minor child may petition to change the child’s name.
“3. Pertinent Kansas statutes contain no such stipulation or authority.
“4. The natural father of the minor child herein involved cannot speak, raise objection or consent to the requested name change.
“5. The child involved herein is too young to understand the nature of the subject proceeding, notwithstanding that she may be ‘bright’ for her age.
“6. A deceased father, absent adoption of his surviving child by a step-parent, is in the opinion of this court entitled to have his child bear his name in accordance with the usual custom of succession to the paternal surname.
“7. When the child is of legal age, if she desires to change her surname to that of her step-father, she may do so.
“8. As a matter of law, Kansas statutes do not permit the relief sought herein and the petition is denied.”
The issues posed by this case essentially devolve into two:
1. Does Kansas law permit a minor child to file a petition for a change of name?
2. If so, what considerations should guide the district court’s discretion in granting or denying the requested change?
Turning to the first issue, minors generally have the capacity to sue and to be sued. Fotopoulos v. Gas Service Co., 150 Kan. 738, 741-42, 96 P.2d 666 (1939). However, the action must be brought in the name of the child by a next friend or guardian. K.S.A. 60-217. In addition, K.S.A. 60-1401 provides that the district court “shall have authority to change the name of any person, township, town or city within this state at the cost of the petitioner without affecting any legal right.” The name change provisions do not require a demonstration of some compelling reason for the change but provide that if the judge is satisfied as to the truth of the allegations of the petition, and that there is reasonable cause for changing the name of the petitioner, “the judge shall so order” the change. K.S.A. 60-1402(c). There are no special provisions regarding a change of name by a minor nor are there any Kansas cases concerning the matter. Therefore, we must decide whether despite the absence of any statutory impediments to the requested name change, the failure of the statutes to specifically permit such an action compelled dismissal of this petition.
It is well recognized that in the absence of a statutory or constitutional provision to the contrary, the rule of the common law still remains in effect in this state. K.S.A. 77-109; Board of Neosho County Comm’rs v. Central Air Conditioning Co., Inc., 235 Kan. 977, 981, 683 P.2d 1282 (1984). Furthermore, the common law regarding name changes was that so long as no fraud was intended, any person, including a minor, had the right to change his name without legal formality by simply using the new name. Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (1975); In re Staros, 280 N.W.2d 409, 411 (Iowa 1979), and cases cited therein. Since there is nothing in the Kansas statute which abrogates this rule, it would seem that petitioner could have accomplished her name change without any sanction by the court. However, it has also been held that statutory provisions setting up a legal procedure for name changes are intended as aids and affirmations of the common-law rule and not as an abrogation or substitution for the informal procedure. It is said that the in-court procedures have been adopted simply to provide a record of name changes. In re McGehee, 147 Cal. App. 2d 25, 26, 304 P.2d 167 (1956); Laks, 25 Ariz. App. at 60. Thus, name changes have been court-approved ancillary to some other matter, such as a divorce, even though the statutory name change procedure was not followed. See, e.g., In re Marriage of Nguyen, 684 P.2d 258 (Colo. App. 1983).
In this case, the petitioner sought to follow the statutory procedure for obtaining a change of name but was denied relief by the court because she is a minor. However, in light of the fact that a minor may bring legal action through a next' friend, the absence of any language in K.S.A. 60-1401 and 60-1402 to indicate that a minor is excluded from seeking a name change and the common-law history which recognizes the right of any person, including a minor, to change his name so long as no fraud is intended, we conclude that the district court erred. A minor may file a petition, through a next friend, to obtain a name change and there is no legal impediment to a grant of the requested change.
Nevertheless, despite this conclusion, we agree with the district court that some special considerations come into play when a name change is requested by a minor. It is longstanding tradition in this country that a child carry the surname of his father. As a consequence, a number of courts have held that there is a protectable parental, generally paternal, interest in seeing that a child’s name remains unchanged. Annot., 92 A.L.R.3d 1091. For example, in Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), the court held that the grant of a change of name petition filed on behalf of two minor children by their mother without notice to the natural father was a denial of due process. The court held that even though the statute permitted a name change by a minor without notice or consent by the parents, to do so would be an infringement of the father’s protectable interest in his children’s surname. Courts have also held that a minor’s request for a name change, whether brought as an independent action or as part of a divorce, should be subject to a best interests of the child test. Carroll, 263 Ark. at 286; In re Marriage of Presson, 102 Ill. 2d 303, 465 N.E.2d 85 (1984); In re Marriage of Omelson, 112 Ill. App. 3d 725, 445 N.E.2d 951 (1983). Thus, in Spatz v. Spatz, 199 Neb. 332, 334, 258 N.W.2d 814 (1977), the court held that the trial court did not commit an abuse of discretion in refusing to grant a petition for a name change filed by a mother on behalf of her two daughters. The court held that the decision to grant or deny such a request must depend upon the best interests of the child. The court noted that the children’s father, who opposed the name change, exercised regular visitation and met his child support obligations. The court indicated that the estrangement between the girls and their father effected by divorce would only be furthered by a name change and that the trial court did not err in concluding that the best interests of the children militated against the change.
Both the Nebraska (Neb. Rev. Stat. § 61-101 [1981]) and the Arkansas (Ark. Stat. Ann. § 34-801 [1985 Supp.]) cases were initiated by a petition for a name change filed under a .statute comparable to K.S.A. 60-1401 and 60-1402. In neither case was there any statutory language which indicated that a minor’s petition should be treated differently than an adult’s nor was there a requirement that a minor’s parents be given notice. Nonetheless, in recognition of both the strong parental interest involved and the limited capacity of a minor, the courts in those two states placed special restrictions on the scope of the court’s power to grant a name change to a minor.
In this state, a child has the capacity to bring an action and nothing in the statute indicates that a petition for a name change should be regarded differently than any other lawsuit. However, it is also true that parents have special rights and interests with regard to their children which our courts will seek to preserve. Therefore, we hold that in exercising the discretion implicit in deciding whether a reason for a name change has been shown (K.S.A. 60-1402), the court considering the proposed name change for a child should also consider the interests of the parents and the best interests of the child.
In this case, the trial judge refused relief based on the perception that the child could not file such an action and that the statutes do not permit the relief sought by petitioner. However, as already noted, both the statutory and the common law permit the filing of the action and the actual grant of the name change. Moreover, this child’s natural father is deceased and the paternal grandparents were given notice of the requested change and the opportunity to raise objections. The court’s concern with the dead man’s interest seems misplaced; a change of name at this point can certainly not be said to pose a threat to the child’s relationship with her natural father. Moreover, the evidence would evidently show that the child has no interaction with any of her paternal relatives, and the person she regards as her father, her natural mother, and her half brother all have a different surname. Therefore, we conclude that there is reasonable cause for changing the minor child’s surname.
The judgment is reversed and the case is remanded with directions to enter an order granting the name change. | [
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Meyer, J.:
This is an action by a supplier of materials against the contractor and his corporate surety on a contractor’s bond.
Defendant Allen Utilities, Inc., (Allen Utilities) contracted with the City of Peru, Kansas, for a public works project concerning sewers, sewage pumping stations, force mains, and a sewage purification plant. As required by K.S.A. 60-1111, Allen Utilities furnished what is commonly known as a contractor’s bond, with Universal Surety Company (Universal) as surety.
In furtherance of several construction projects it had in the area, Allen Utilities contracted with plaintiff Cedar Vale Co-op Exchange, Inc. (Cedar Vale Co-op), to supply Allen Utilities’ workers who lived in the area with project materials and supplies on an open running account. During August and September of 1980, Allen Utilities ran up an account in the sum of $9,467.03 which has remained unpaid. Cedar Vale Co-op brought suit to recover this sum. The trial court found Allen Utilities liable for $9,467.03, the total amount of materials charged. The trial court also found Universal liable as surety for $7,668.57 of the amounts charged.
From this judgment, Universal appeals.
The sole question on appeal is whether there was substantial evidence before the district court from which it could have found Universal Surety Company liable for charges made at the Cedar Vale Co-op in the name of Allen Utilities. Although both parties to this appeal try to bifurcate this question into two issues, the briefs are focused solely on the question of the existence of substantial evidence. Our analysis shall be detailed accordingly.
K.S.A. 60-1111 requires a contractor on a public works project to supply a bond to the State of Kansas “conditioned that such contractor . . . shall pay all indebtedness incurred for labor furnished, materials, equipment or supplies', used or consumed in connection with or in or about the construction of such public building or in making such public improvements.” The nature of Universal’s obligation is specified in the bond which Allen Utilities and Universal executed. The bond provides in explicit terms that Universal is serving as surety only for “all indebtedness incurred for supplies, materials, or labor furnished, used or consumed in connection with or in or about the construction or making of, the [City of Peru] improvement, including gasoline, lubricating oils, fuel oils, greases, coal and similar items used or consumed directly in furtherance of such improvement . . . .”
No claim is made that the surety bond was not duly filed with the clerk of the district court or that the action was not commenced within six months — requirements under the statute, K.S.A. 60-1111(b).
It is said the written contract between Allen Utilities and Universal varies from the statutory language. Although both parties cite authority discussing the scope of the contractor’s bond, neither Cedar Vale Co-op nor Universal contend Universal’s liability extends beyond the Peru, Kansas, project. The surety bond covered the construction of the improvement in Peru, Kansas, and all labor and materials expended on construction. The execution of the surety bond as required by K.S.A. 60-1111 shows an intention to comply with the contract between Allen Utilities and the City of Peru, and with the statutory requirements. The purpose of K.S.A. 60-1111 is to protect the contributions of those assisting in the construction of public improvements and public works and the bond given in compliance with the statute must be construed to accomplish the end which the legislature had in view. Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. 600, 602, 396 P.2d 320 (1964). This the contractor’s bond at issue did.
Whether substantial evidence is present in this case depends upon whom the burden of proof falls. The record provided this court is devoid of any evidence which serves to prove that gasoline and other materials charged at the Cedar Vale Co-op were used at the construction site in Peru, Kansas. There was evidence Allen Utilities had a charge account at the Cedar Vale Co-op, and there was evidence many of the men working on the Peru site lived in Cedar Vale. But these same men worked at other sites in other cities, and the only proof offered that any one of these men ever went to the Peru construction site after having charged materials at Cedar Vale was testimony that when the men worked at other projects, they normally charged their supplies at other places. The only exceptions to this were seven trips made by one Gerald Thompson. It was shown that on these seven occasions Thompson charged a total of $704.27, and that on those days, also, he did go to the Peru site. However, there is no evidence that he delivered anything there, nor was there any proof that on those same days he did not also go to other sites. No concrete evidence was presented by either side linking charges made at the Co-op to the Peru, Kansas, project. No one who testified knew where the materials went after they were charged.
Thus, the issue can be resolved only by determining upon whom the burden of proof lay.
Kansas has never specifically addressed the subject of burden of proof with regard to contractors’ bonds. Universal discusses in detail decisions of other states wherein the burden of proof is on the party furnishing the materials to show such materials were actually used in the construction of the building. Kansas has never adopted these holdings in this context, however. In contrast, Cedar Vale Co-op contends this court should analogize contractors’ bonds with mechanics’ liens and should follow the rules regarding burden of proof therein.
In Kansas, contractors’ bonds furnished on public works projects are substitutes for mechanics’ liens. Murphree v. Trinity Universal Ins. Co., 176 Kan. 290, 269 P.2d 1025 (1954). Contractors’ bonds are for the use of all persons in whose favor liens might accrue. Murphree, 176 Kan. at 294. When a bond is filed, a claimant is not required to file a mechanic’s lien statement in order to preserve his rights, but may look to the bond for recovery. Murphree, 176 Kan. at 294.
Contractors’ bonds are thus closely aligned with, and in fact take the place of, mechanics’ liens. This being so, it is fair to analogize rules applicable to mechanics’ liens to contractors’ bonds.
An analogy to the burden of proof in mechanics’ lien cases discloses a shifting burden between the parties. With mechanics’ liens, Kansas has adopted the “rule of presumptive use.” Under this rule, proof of delivery of construction materials to a building site “constitutes prima facie evidence, or creates a presumption, of their use in the improvement [citation omitted].” Seyb-Tucker Lumber and Implement Co. v. Hartley, 197 Kan. 58, 63, 415 P.2d 217 (1966). Once this initial presumption is established, the burden of producing evidence shifts to the surety to rebut the presumption with evidence to the contrary. Seyb-Tucker, 197 Kan. at 64.
The rule of presumptive use has its roots in the leading case on the subject, Rice & Floyd v. Hodge Bros., 26 Kan. 164 (1881). In Rice & Floyd, the Kansas Supreme Court sustained a mechanic’s lien against arguments it had not been proven materials furnished were actually used in the construction of the buildings involved. The court acknowledged the lack of proof that materials actually went into the buildings; but stated it was shown there was a contract for the furnishing of materials, materials were furnished and supposedly used in the construction of the buildings, and that a few articles were actually used in construction of the buildings. “Under these circumstances,” the court stated, “it would not be justice to refuse the lien.” Rice & Floyd, 26 Kan. at 170. The court stated that a requirement of direct and positive testimony as to each article delivered would emasculate the mechanic’s lien law and would make it “more of a burden and a trap than a blessing and a help.” Rice & Floyd, 26 Kan. at 170.
An exception to the rule of presumptive use was provided in Rice ér Floyd, however. More stringent proof (proof other than establishment of a prima facie case) may be required where there is a “well-grounded suspicion” the contractor used the materials purchased for some other building or some other purpose. Rice & Floyd, 26 Kan. at 170. In such a case, the court stated it might be fair to require the sellers of the materials to show the materials sold were in fact used in the construction of the building. Rice & Floyd, 26 Kan. at 170-71.
The rule enunciated by the Supreme Court in Rice ir Floyd was later followed in David v. Doughty, 96 Kan. 556, 152 Pac. 660 (1915). Therein the rule was stated as follows:
“To entitle a person to a lien for material furnished in the erection of a building it devolves on the claimant to show that the material was purchased for and applied to that use, but if it be shown that the material was purchased to be used in the building and delivered to the builder, or taken by him to his premises to be so used, and some evidence is offered that material of that character was actually used in the building, in the absence of any discrediting circumstances it will ordinarily be sufficient to show that the material was used in the building.” Syl.
This rule was again articulated by the court in Seyh-Tucker, 197 Kan. at 64.
Applying the rule of presumptive use to the instant case, Cedar Vale Co-op has established it had a contract with Allen Utilities to supply oil, gas, and other materials on a charge account basis. It was also proven that the men who charged supplies at the Co-op were, indeed, employed by Allen Utilities and that they did, on some days, work at the Peru, Kansas, building site. Even under the rule of presumptive use, however, this is not enough evidence to show the men so charging materials used those materials in accord with construction on that site. We have carefully examined the record provided us and conclude Cedar Vale Co-op has not presented enough evidence to establish a prima facie case. Cedar Vale having proved no facts in support of its position, Universal cannot be held liable as surety for charges made at the Cedar Vale Co-op.
The decision of the trial court is reversed. | [
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Foth, C.J.:
In this workers’ compensation case the issue is how to compute the worker’s “average weekly wage” where the employer is a closely held corporation partially owned by the claimant, which actually pays a lower wage than that nominally called for by the employment contract. The administrative law judge, the director, and the trial court all held that the worker’s “wage” was the amount actually received rather than the nominal amount. The claimant appeals; we affirm.
Claimant’s injury, about which there is no dispute on appeal, occurred October 4, 1982. His employer was a corporation he formed in 1980 with Ron Gerard to do cement contracting. Claimant owned 25 percent of the stock and served as secretary-treasurer. Gerard owned 75 percent and was president. The two were the only permanent employees, with additional workers hired only for specific contracts.
Claimant’s initial wage was $350.96 per week, and was paid from July 1980 through July 1981. Claimant and Gerard then agreed to a wage of $315.00 per week. However, in weeks when the corporation’s cash flow was insufficient claimant drew less than $315.00, and in some weeks he drew nothing. There was no evidence that any deficiencies were ever made up or that there was any intent that they be made up. During the 26 weeks preceding the injury of October 4, 1982, claimant received a wage in each of 21 weeks, totalling $5,460.50. Based on these actual wages received the tribunals below found claimant’s average weekly wage was $260.02.
Claimant alleges the court erred in determining that his average weekly wage was ■ the amount of money he actually received and not the amount the corporation agreed to pay him in weekly wages. The controlling statute is K.S.A. 44-511. It first defines “wage” as follows:
“The term ‘wage’ shall be construed to mean the total of the money and any additional compensation which the employee receives for services rendered for the employer in whose employment the employee sustains an injury by accident arising out of and in the course of such employment.” K.S.A. 44-511(a)(3); emphasis added.
However, in contending that his average weekly wage was the $315.00 the corporation agreed to pay him and not what he actually received in wages, claimant relies on K.S.A. 44-511(b)(3):
“If at the time of the accident, the money rate is fixed by the week, the amount so fixed, plus the average weekly value of any additional compensation and the value of the employee’s average weekly overtime as computed in paragraph (4) of this subsection, shall be the average gross weekly wage.” Emphasis added.
From the emphasized language in (b)(3) claimant argues that “fixed” means an agreed upon rate, regardless of whether that amount is paid or intended to be paid. This is a too literal reading of (b)(3), and one which ignores the subsection’s place in the statutory scheme.
Under the workers’ compensation act accidental injuries are compensated on the basis of the worker’s “average gross weekly wage.” K.S.A. 44-511(b), among other things, tells how to, compute a “weekly wage” where the worker’s compensation is paid with reference to different time periods or depends on factors other than time. Thus, (b)(1) covers the worker with an annual salary (“fixed by the year”);, (b)(2) covers the monthly salary (“fixed by the month”); (b)(3) covers the weekly salary (“fixed by the week”); (b)(4) covers the hourly employee (“fixed by the hour”); and (b)(5) covers the piece worker (“fixed by the output of the employee, on a commission or percentage basis, on a flat-rate basis for performance of a specified job, or on any other basis where the money rate is not fixed by the week, month, year or hour”).
In each of the cases the “fixed” wage is certainly the agreed upon wage for the agreed upon period of time or other factor. However, the fixed “wage” is, by virtue of K.S.A. 44-511(a)(3), the money the employee “received.” When the two subsections are read together it becomes apparent that a wage “fixed” by the week is one that is not only agreed to in amount by the employer and employee but one which each expects to be paid.
In this case the parties agreed to a $315.00 weekly wage, but only on an implied condition that the employer made enough to pay it. If cash was short, the employee-owner took varying smaller amounts or nothing at all, and never looked to the corporation to make up any deficiencies. The $315.00 was simply a lid on the weekly wage, and not the actual “fixed” weekly amount. There in fact was no “fixed” rate of compensation.
Under these circumstances (b)(5) comes into play, governing cases where “the money rate is not fixed by the week, month, year or hour.” In that case, the statute says, “the average gross weekly wage shall be the gross amount of money earned during the number of calendar weeks so employed, up to a maximum of twenty-six (26) calendar weeks immediately preceding the date of the accident, divided by the number of weeks employed.” That is exactly the formula employed by the administrative law judge and approved by the director and district court.
In support of his argument that an agreed rate should control even if never paid, claimant cites Wilson v. Moridge Mfg., Inc., 2 Kan.App.2d 374, 579 P.2d 725 (1978). In that case the claimant’s work week was four 10-hour days at an hourly rate of $3.90. The examiner, director, and district court computed the average gross weekly wage to be $156 by multiplying $3.90 by 40 hours. This court held that the district court erred in not computing claim ant’s average gross weekly wage in accordance with the then applicable provisions of K.S.A. 1974 Supp. 44-511(b)(4), governing hourly employees. The wage was to be determined as follows:
“(i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weekly rate shall be found by multiplying the daily money rate by five (5) . . . .”
Computed strictly according to the statute, claimant’s daily money rate was $39 ($3.90 x 10 hours), and his straight-time weekly rate was $195 ($39 x 5 days). There was thus included in the weekly wage a salary for a fifth day which was not actually worked.
There are two reasons Wilson is not applicable here. First, it dealt with the specific statutory formula covering hourly employees; claimant here is not an hourly employee. Second, the legislature amended the act after Wilson to provide that the daily money rate for hourly employees should be multiplied by the number of days customarily worked, rather than by five. L.1979, ch.156, § 9. The effect of the amendment was to eliminate consideration of “phantom” wages such as were involved in Wilson and to make clear that the average wage was limited to wages actually received.
Under the various subsections of 44-511(b), regardless of the time period or other method by which the employee’s “fixed” compensation is computed, there is added to that figure any “additional compensation” and overtime, so that the average gross weekly wage reflects money actually received. This prevents basing compensation on an artificially low rate when the employee actually is paid more than the “fixed” rate. The other side of that coin is presented here — the “fixed” rate is artificially high, with the amount actually received being less. Consistent application of the statute requires that compensation be based on the amount received in either case.
We recognize that there may be cases where an employer is prevented by circumstances from paying the full amount of wages agreed upon in an arms-length transaction and intended to be paid. Our holding is limited to the case where the contract, as demonstrated by the practice of the parties, calls for wages in whatever amount is available to the employer, up to a stated maximum. In such a case the amount actually received is the basis for computing the average gross weekly wage, as held below.
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Wahl, J.:
The issues in this case grew from the execution of four irrevocable trust instruments and a power of attorney, also denominated as being irrevocable.
In October of 1981, Charles D. Peterson, appellee, visited the home of his mother, Amy Ruth Peterson, appellant. At that time he went through some of his mother’s financial papers and discovered that several stock certificates were missing. Mrs. Peterson indicated that she needed some help in managing her financial affairs.
Charles returned to his mother’s home in November, 1981. During that visit he spoke with the president of the bank and consulted with the bank’s attorney, Laurel McClellan, who was also Mrs. Peterson’s personal attorney, as to ways of providing for Mrs. Peterson’s financial security, including trusts or a conservatorship. They concluded that the best method would be to create an irrevocable power of attorney in Charles and a series of irrevocable trusts.
Mrs. Peterson, who was in her mid-80’s at the time the trusts were signed, lived on a farm near Fredonia with her two half-brothers, Gilbert and Alva Boice, and her half-sister, Oneta Boice. The Boices had lived with and worked with the Petersons for over thirty years. The documents signed by Mrs. Peterson created four trust agreements — one solely for herself, and one each for the benefit of herself and Gilbert, Alva and Oneta respectively. The trusts provided that Mrs. Peterson should be entitled to the interest income from the trusts for her lifetime; that Gilbert, Alva and Oneta would each be entitled to the interest income from their respective trusts from the inception of the trust until their deaths; that the trustee, in his discretion, could invade the corpus of the trust for the care, maintenance, support and comfort of the settlor or the beneficiaries; and that, upon their deaths, the trust corpus should pass equally to Charles D. Peterson and Maxine Copeland, the children of Mrs. Peterson.
The testimony at the trial was sharply divided on the issue of whether the documents were explained to Mrs. Peterson and the Boices. Charles testified that he discussed the agreements with Mrs. Peterson and the Boices the night before they were signed and that everyone agreed that it was a good way to manage the estate. Gilbert and Alva deny that it was discussed with them. Gilbert, Charles and Mrs. Peterson went to the bank the next morning to execute the documents. Charles testified that he briefly explained what the documents were, and Laurel McClellan, the attorney who drafted the documents, testified that he explained the documents to Mrs. Peterson, gave them to her one at a time to sign, and answered all of her questions about them. He testified that he had no doubt that she knew what she was signing and understood that the power of attorney and the trust agreements were irrevocable.
On December 16, 1981, Amy Ruth Peterson filed a petition in the district court asking that the power of attorney and the four trust instruments be nullified. In her petition, Mrs. Peterson asserts that she was not given an opportunity to read the documents or to consult an attorney regarding the terms or possible consequences or effects of her executing the documents. She further claims that she was not advised that the instruments were irrevocable.
The district court ruled in favor of the defendants after finding that Mrs. Peterson understood the provisions of the power of attorney and of the four trusts and that she knowingly, understandingly and voluntarily signed the instruments. Amy Ruth Peterson appeals from that decision.
In this case, there is no dispute that the trust instruments reserved no power of revocation and by their clear'and unambiguous terms were irrevocable. Generally, a private express trust cannot be revoked or amended by the grantor unless that power is reserved. K.S.A. 58-2417. State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, 504 P.2d 156 (1972). Where that power is not retained, a grantor will be entitled to revoke the trust only on a showing of fraud, mistake, or some other ground that allows a gift or contract to be rescinded.
In this case, the plaintiff argues that she did not fully understand what she was signing at the time she signed the trust instruments. There is no allegation that she lacked the capacity to create express irrevocable trusts at the time the trust agreements were signed. She argues, however, that equity will set aside a trust “where it is not the pure, voluntary, well understood act of the grantor’s mind.” 89 C.J.S., Trusts § 85, p. 877. While that is a correct statement of the law, it is also true that “in the absence of fraud, mistake, duress, undue influence, or other matters cognizable in equity, a trust will not be set aside where it has been voluntarily executed. It is no ground for setting aside a trust entered into voluntarily that the settlor dislikes it and is sorry he executed it.” 89 C.J.S., Trusts § 85, p. 876.
Whether Amy Ruth Peterson was competent to execute the trusts and did so knowingly and voluntarily are questions of fact which the trial court resolved against the contentions of the appellant. If there is competent, substantial evidence to support that finding by the trial court, this court will not disturb it. That there may have been evidence from which the trial court could have made different findings and conclusions is of no consequence.
Charles Peterson testified that his mother requested his assistance in managing her financial affairs, that the nature of the trust agreements was explained to her and the rest of the family the night before they were executed, and that the trusts were again explained to her at the bank when they were signed. McClellan testified that he explained to her that the trusts were irrevocable, how the interest and corpus of the trusts could be used, and that the trust corpus would eventually pass to her legal heirs. He also indicated that he answered all of her questions about the operation of the trust instruments.
It was the function of the trial court to weigh the evidence and determine the credibility of the witnesses. Substantial and competent evidence supports its conclusion that the signing of the trust instruments was voluntary, with full understanding and knowledge of the efficacy of those instruments.
It bears comment by this court that Mrs.Peterson argues that the omission of a provision for revocation is indicative of her misunderstanding of the instrument and should be viewed as a circumstance of suspicion so that very slight evidence of mistake or misunderstanding is sufficient to invalidate the trust. The effect of the omission of a power to revoke must be viewed in light of the facts and circumstances of each case. In 89 C.J.S., Trusts § 90, p. 917, it is stated:
“The absence of the power of revocation will not invalidate the trust where revocability would defeat the purpose of the trust. For example, the absence of the power does not invalidate the trust where the purpose of the trust is to provide against the settlor’s own improvidence, or against his inability, because of age or infirmities, to care for his property, or where it is evident that the trust is to continue during the settlor’s life.”
Here, the trusts were created precisely for the purpose of protecting Mrs. Peterson from her own improvidence or inability to manage her financial affairs because of her age. Revocability in this circumstance would defeat the purpose of the trusts and the failure to include a power of revocation in the trusts cannot be deemed indicative of mistake or misunderstanding.
The appellant also argues that Laurel McClellan, the scrivener of the instruments, was retained by Charles and that the lack of independent legal advice before she signed the documents constitutes grounds for setting aside the trusts and power of attorney. The rule concerning independent advice is generally applied in Kansas only when the beneficiary of a trust stands in a confidential or fiduciary relationship to the settlor, and “when that relationship is used by one of the parties to take advantage of the other for financial gain . . . the law throws around such other its protecting arm to see that no undue advantage has been taken of the donor, and if the circumstances warrant, requires a showing of independent advice.” Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 173, 131 P.2d 691 (1942); In re Estate of Carlson, 201 Kan. 635, 443 P.2d 339 (1968); Olson v. Harshman, 233 Kan. 1055, 668 P.2d 147 (1983).
“Where the trust entered into voluntarily is for the benefit of the settlor and his children without any benefit accruing to the trustee, failure to obtain independent legal advice is no ground for cancellation.” 89 C.J.S., Trusts § 85, p. 877.
In this case, it is not alleged that Charles Peterson and his mother stood in a confidential or fiduciary relationship, nor is it alleged that he exerted undue influence on her or coerced her into signing the documents. Charles Peterson sought the advice of an attorney, but the attorney was the same one consulted on other occasions by Mrs. Peterson. The instruments were explained to Mrs. Peterson by Mr. McClellan. He answered all of her questions and there is no showing that she requested any further legal advice. Mrs. Peterson did have some familiarity with powers of attorney since she had previously had a power of attorney in herself for her husband prior to his death. Nothing in this case would warrant the application of the principle of independent legal advice. Frame, Administrator v. Bauman, 202 Kan. 461, 449 P.2d 525 (1969). The trial court did not err in finding that the lack of independent legal advice would not invalidate the trusts.
Plaintiff next argues that in Kansas a “durable” power of attorney remains in effect, if the proper wording is used, even if the person giving the power of attorney becomes incapacitated, K.S.A. 58-610 et seq., but that an “irrevocable” power of attorney would violate public policy and cannot exist.
A power of attorney is defined in 2A C.J.S., Agency § 44, p. 612, as “an instrument in writing by which one person, as principal, appoints another as his agent and confers upon such agent the authority to act in the place of the principal for the avowed purposes set forth in the instrument.” The general rule of agency is that “[t]he power to revoke an agent’s authority at any time is not affected by the fact that there is an express or implied contract between the agent and the principal that such agency is irrevocable . . . .” 2A C.J.S., Agency § 111, p. 728. Since it is deemed contrary to public policy to have an agent forced on a principal against his will,unless a power of attorney is coupled with an interest, it is revocable by the principal at will. The interest of the agent is subject to a reserved power of revocation which is implicit in the power of attorney. Bowen, Administrator v. Hathaway, 202 Kan. 107, 114, 446 P.2d 723 (1968).
In order to render effectual the termination of an agency, notice of the termination must be given to the affected parties. George v. Bolen-Williams, Realtors, 2 Kan. App. 2d 385, 391, 580 P.2d 1357 (1978). Amy Ruth Peterson filed the petition in this case on December 16, 1981, and prayed for the revocation of this power of attorney. If that was not adequate notice of revocation, and we think that it was, she then gave notice of revocation by separate written statement on September 3, 1982. This power of attorney qualified as a durable power of attorney under K.S.A. 58-610 et seq., which has nothing to do with its revocation but provides that it shall continue in effect if the principal becomes incapacitated. The capacity of Amy Ruth Peterson was never questioned and so was never an issue in this litigation. She could, and did, revoke this power of attorney by the filing of the petition herein, and the district court erred in holding the power of attorney to be irrevocable.
The judgment of the trial court is affirmed as to the irrevocable trust instruments and is reversed as to the power of attorney and remanded with direction to find the power of attorney revoked. | [
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Foth, C.J.:
Defendant Michael C. Corrigan appeals his jury conviction of arson. He contends he was denied a speedy trial and that hearsay evidence was admitted in violation of his Sixth Amendment right of confrontation.
The fire occurred on the morning of October 5, 1982, at a bait shop and general store owned and operated by defendant in Perry, Kansas. Defendant, his wife Janet, and their two-month-old child were in their mobile home near the bait shop when the fire was discovered.
Combined investigations by the State Fire Marshal’s office and investigators from defendant’s insurance company revealed, first, that the fire showed signs of an incendiary origin. Second, defendant had insured the shop and contents for a total of $35,000 in April, 1981, but that policy had expired in April, 1982, and the premises were apparently uninsured until October 2, 1982. On that day, just three days before the fire, defendant took out a policy with a different company for $100,000. After the fire he made proof of loss under that policy.
In early November defendant’s wife filed for divorce and moved into the home of her sister in Topeka. There, on November 4, she gave two statements to investigators. In them she related that defendant had stated a week before the fire that he was going to burn the shop because he needed money to repay loans from his father; that she saw him remove merchandise the day before the fire; and that he said he was going to burn the shop that night.
The same day a warrant was issued for defendant’s arrest. When officers attempted to execute the warrant at his home, he fled on foot, eluding them after a lengthy chase despite repeated calls to stop and the firing of three warning shots. He surrendered two weeks later, and was released on bond. He has been free on bond ever since.
At the preliminary hearing of December 8, Janet Corrigan, who was again living with her husband, basically repudiated her prior statements to the investigators. He was nevertheless bound over for trial and arraigned on December 23, 1982. He was eventually brought to trial beginning August 15, 1983, was convicted, and now appeals.
I. SPEEDY TRIAL
At the time of arraignment the case was set for trial on March 28,1983. In February, at the State’s request, it was reset for May 23, 1983. That continuance was granted because the State couldn’t locate Janet Corrigan. Later, because a prior case was still in progress, the case was continued on the court’s own motion to May 31, 1983. Both dates were well within the statutory 180-day period from arraignment, which would expire June 21, 1983.
On May 24 a hearing was held as a result of the State’s continued inability to secure service of a subpoena on defendant’s wife Janet. The subpoena had been issued in February and extensive efforts had been made to locate her but to no avail. From the substance of her statements outlined above, it is apparent that her evidence was highly material to the State’s case. The trial court so found, and granted the State a continu anee to August 15, or 83 days. This continuance, which put the trial date past the 180-day limit, was expressly granted under K.S.A. 22-3402(3)(c). That statute allows trial courts to extend the statutory limit if:
“There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date . . . .” Emphasis supplied.
The defendant argues that the State was granted two continuances pursuant to K.S.A. 22-3402(3)(c), and that,, because the original trial date was March 28, his trial had to begin within 120 days or no later than July 26.
The May 24 continuance, however, was not the second continuance ordered pursuant to 22-3402(3)(c). At the time of the first continuance, which moved the trial from March 28 to May 23, no findings under 22-3402(3)(c) were made, and the trial court later specifically stated that the continuance had not been granted under that subsection. Likewise, the continuance from May 23 to May 31 was because of the condition of the court’s docket and was not ordered under 22-3402(3)(c).
The permissive extension provisions of K.S.A. 22-3402 do not apply to continuances which fix a trial date within the 180-day period. Cf. State v. Coburn, 220 Kan. 750, 752-53, 556 P.2d 382 (1976). In Coburn, the trial court ordered a 47-day continuance because of an overcrowded docket, which caused the trial to commence 196 days after arraignment. Cobum argued that he had not been tried within 180 days and that none of the exceptions in 22-3402(3) applied. Trial courts, under 22-3402(3)(d), may grant one continuance, of not more than 30 days, if a docket is too crowded to hold the trial within the statutory period. Coburn claimed that since the continuance was greater than 30 days, 22-3402(3)(d) was not satisfied. The Court rejected Co-burn’s argument, declaring thát the 30-day requirement was intended to place a 210-day limit on bringing an accused to trial when he is on bond. The Court further ruled that “K.S.A. 22-3402 places no restrictions on continuances ordered within the applicable time limits for the commencement of a trial, regardless of the length of the continuances or the reasons therefor.” 220 Kan. 750, Syl. ¶ 1. Under Coburn, because the March 28 continuance did not postpone the trial’s commencement beyond the 180-day period, 22-3402(3)(c) does not apply to that continuance. Because the continuance to August 15 was the first one ordered pursuant to 22-3402(3)(c), the trial did not have to commence within 120 days of March 28. For the purposes of this subsection, the “original trial date” from which the 120 days is to be computed was May 31, not March 28. The actual trial date of August 15 fell within both the 90-day limit for a first continuance and, obviously, the outside limit of 120 days which would have applied if there had been a second continuance on this ground.
The defendant also argues that because there were nearly 30 days remaining in the 180-day period when the trial court declared Janet Corrigan unavailable (at the May 24 hearing), the State should have commenced his trial during those remaining 30 days. This argument also has no merit. Once the trial court found 22-3402(3)(c) satisfied, it could continue the trial beyond the 180-day period. To what date a trial is continued rests largely within the discretion of the trial court. See State v. Jones, 226 Kan. 503, Syl. ¶ 5, 601 P.2d 1135 (1979). Considering the past difficulty in locating the witness, allowing as much time as possible for future effort was understandable. The trial court did not abuse its discretion by continuing the defendant’s trial beyond the 180-day period. Cf. State v. Petrin, 213 Kan. 258, 261, 515 P.2d 748 (1973).
II. HEARSAY
The hearsay admitted at trial comprised three separate declarations of the defendant’s wife, Janet Corrigan, who did not testify at the trial. One was her testimony at the preliminary hearing of December 8, 1982. The other two were the statements made to Robert Schmidt, an insurance investigator, on November 4, 1982. One of these was tape-recorded and the other was given under oath before a court reporter. The latter two statements were taken in the Topeka home of Janet’s sister, Deborah Hunter. Present at the first, in addition to Schmidt, were Janet, Deborah, their mother, and a deputy state fire marshal. At the second the state official was not present, but the court reporter and Janet’s lawyer were added to the previous group.
All three declarations were admitted at trial upon a finding by the trial court that the defendant had procured the absence of the witness. If so, the defendant thereby waived his right of confrontation and a fortiori his hearsay objection to her statements. The principle is bottomed on the maxim that one should not profit from one’s own wrongdoing. See, e.g., United States v. Thevis, 665 F.2d 616, 632-33 (5th Cir.), cert. denied 459 U.S. 825 (1982) (grand jury testimony admissible where defendant had murdered the witness); United States v. Balano, 618 F.2d 624, 628-30 (10th Cir. 1979), cert. denied 449 U.S. 840 (1980) (grand jury testimony admissible where witness refused to testify because of defendant’s threats); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied 431 U.S. 914 (1977) (grand jury testimony admissible where witness refused to testify because of defendant’s threats); United States v. Mayes, 512 F.2d 637 (6th Cir.), cert. denied 422 U.S. 1008 (1975) (prosecutor’s leading questions to witness who claimed privilege under the Fifth Amendment denied defendant his right of confrontation, but the right was waived because defense counsel asserted witness’s privilege in the interest of the defendant and not of the witness). Cf. also Motes v. United States, 178 U.S. 458, 474, 44 L.Ed. 1150, 20 S.Ct. 993 (1900) (“We are unwilling to hold it to be consistent with the constitutional requirement that an accused shall be confronted with the witnesses against him, to permit the deposition or statement of an absent witness [taken at an examining trial] to be read at the final trial when it does not appear that the witness was absent by the suggestion, connivance or procurement of the accused . . . .” Emphasis added.); State v. Lomax & Williams, 227 Kan. 651, 661, 608 P.2d 959 (1980) (witness who testified at trial only that she didn’t remember what happened was not “available for cross-examination,” and prior preliminary hearing testimony was not admissible where there was “no finding by the trial court that the refusal of [the witness] to testify was the result of threats made to her by the defendants”).
The question then becomes whether there was sufficient evidence before the trial court to support its finding that defendant procured the absence of his wife as a witness. The federal circuits are divided as to whether the prosecution must make such a showing by clear and convincing evidence (Thevis, 5th Cir.), or merely by a preponderance of the evidence (Balano, 10th Cir.). We need not resolve that question in this case because we believe the evidence supports the trial court’s finding under either standard.
Evidence relating to defendant’s dealings with his wife came before the trial court at a series of hearings. Although the court made its first ruling on admissibility at a pretrial hearing when it might have been premature, later evidence, including that at trial, fully justified the ruling. In determining the sufficiency of foundation evidence we look at the entire record. State v. Jackson, 220 Kan. 675, 556 P.2d 885 (1976); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976).
The following facts were presented to the trial court, largely from testimony of Janet’s sister Deborah Hunter.
Shortly after the fire, on' about November 1, Janet left the defendant and went to live with her sister. A few days later she filed for divorce, and gave the two statements to the fire investigators.
Defendant then commenced a month-long series of telephone calls to Janet. In them he first merely urged her to return to him and to keep quiet about the fire. He later threatened that if she did not, he would take their newborn baby from her and have her committed to a mental institution. Finally, in a conversation on December 6,1982, recorded by Deborah with Janet’s knowledge and approval, he again urged her return. That conversation was presented to the jury and not objected to at trial. In it he also told Janet that if she testified and told the truth he would be sent to the penitentiary and she and the baby would have to survive on welfare.
That same day, Janet left her sister’s house and went to live again with defendant. Two days later (December 8, 1982) she testified at the preliminary hearing, repudiating the statements she had made to Investigator Schmidt a month before.
On February 18, 1983, a hearing was to be held on the question of Janet’s marital privilege. She did not appear; she was not at the Garden City address given on the subpoena for her. Defendant’s bond was conditioned on his advising the court of his whereabouts; his latest advice was his parents’ home in Garden City. The prosecutor advised the court of a report from the Finney County sheriff (at Garden City), which was that the day before th.e hearing defendant’s father said Janet wasn’t there, and that he wouldn’t tell the sheriff where she was. Defendant, who was present during counsel’s relation of the events in Garden City, told the court that Janet had left Garden City three days before for a “vacation” in Oklahoma and Texas, and he had no idea where she was. He was careful to point out that she was not under subpoena when she left.
The State thereupon commenced a search for Janet in even more earnest. The sheriff went to Texas to search for her at the reported addresses of relatives; deputies checked the homes of her relatives and friends in Topeka; the sheriff put out “all points bulletins” on her supposed vehicle on interdepartmental wire services; and the sheriff even hired a private detective to watch her parents’ home in Topeka.
At the May 24, 1983, hearing, evidence was introduced that in April defendant had recently been in contact with Janet, either in person or at least by telephone. This evidence consisted of defendant’s statements to a friend describing his child’s development. As the trial court found, these statements could only have come from a parent observing the child’s development, or from conversation with the parent overseeing the development. In addition, he told his friend Janet was fine and “around,” but declined to say where.
In summary: Defendant threatened his wife on numerous occasions in November and thereby secured her return to him and her turncoat testimony at the preliminary hearing; he admitted living with her from December 6 until just before the February 18 hearing, when she conveniently disappeared; and he gave every indication of knowing where she was in April. In addition, defendant’s father also refused to say where she was although she was supposed to be living at his house.
We have no problem in finding that, contrary to defendant’s assertion, the State made the required reasonable effort to produce the missing witness to justify a finding that she was “unavailable.” We further conclude that the evidence before the trial court also justified its finding that defendant procured the absence of the potential witness, his wife Janet, and thereby waived his right to object to admission of her hearsay statements against him.
Affirmed. | [
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Swinehart, J.;
Atchison County Auction Company (Atchison Auction) appeals from the judgment of the district court which found it liable to the First National Bank & Trust Company of Oklahoma City (Bank) for the proceeds from an unauthorized sale of seventy-five head of cattle covered by the Bank’s perfected security interest.
In September 1981, Dr. Wilbur Hilst, a Topekan, sought financing for the purchase of 1,955 calves to expand his ranching operation. At the time he was negotiating a loan with the Oklahoma Bank, he owned approximately 780 head of cattle, a majority of which were purchased with loans from the First National Bank of Wamego and subject to its perfected security interest. One hundred seventy-eight head of the cattle were purchased from Jim and Russell Winsor on credit, and subject to their security interest which was unperfected at the time the Oklahoma Bank perfected its security interest.
The Oklahoma Bank inspected Hilst’s holdings and agreed to grant Hilst a line of credit up to $950,000 for the purchase of the calves. In return they required Hilst sign a security agreement, a financing statement, and a loan agreement granting them a security interest in “all livestock . . . now owned or hereinafter acquired” by Hilst. The Oklahoma Bank paid the loans at the Wamego Bank, and its security interest was assigned to the Oklahoma Bank. The financing statement was properly filed with the Shawnee County Register of Deeds on September 28, 1981.
Shortly after the loan was consummated the Bank learned of the Winsor security interest with an outstanding debt of approximately $66,000. An agisters’ lien of $16,000 had also been filed by the owners of the pasture in which these cattle were kept. Hilst was instructed by the Oklahoma Bank to clear up the liens on the Winsor cattle with funds other than those he had received from the Bank. The Winsor security interest was finally released in December 1981.
In April or May of 1982 the Oklahoma Bank learned that Hilst had sold seventy-five head of cattle at Atchison Auction on October 24, 1981. Hilst admitted to the Bank in writing that he sold the cattle without the knowledge of the Oklahoma Bank and without forwarding the proceeds of the sale to it.
The Oklahoma Bank then brought action against Atchison Auction, alleging conversion. The trial court found that the Oklahoma Bank had a valid security interest in the cattle, that it had not consented to the sale as required by the security agreement, and that Atchison Auction was liable to the Bank for $20,406.65 with interest at the rate of 10% per annum from October 24, 1981.
On appeal Atchison Auction contends the trial court erred in finding that the Oklahoma Bank had a perfected security interest in the seventy-five head of cattle sold, or, in the alternative, erred in concluding the security interest was not waived by the Oklahoma Bank’s consent to the sale.
Initially, Atchison Auction contends that the Oklahoma Bank failed to prove that the cattle sold were cattle covered by the security agreement. The following description of the collateral is found in the security agreement:
“ALL LIVESTOCK, FEED, FEED GRAIN AND FEED COMMODITIES NOW OWNED OR HEREINAFTER ACQUIRED BY THE DEBTOR AND ALL WAREHOUSE RECEIPTS, BANKING ACCOUNTS, DEPOSITS, COMMODITY FUTURES CONTRACTS, MARGIN ACCOUNTS, DOCUMENTS OF TITLE, INSTRUMENTS, CONTRACT RIGHTS, ACCOUNTS RECEIVABLE, GENERAL INTANGIBLES AND OTHER TANGIBLE AND INTANGIBLE PERSONAL PROPERTY RELATING THERETO, ALL INSURANCE POLICIES AND PROCEEDS PAYABLE WITH RESPECT TO ANY OR ALL OF THE FOREGOING, TOGETHER WITH ALL PROCEEDS, PRODUCTS AND INCREASES THEREOF.”
The security agreement further included the debtor’s covenant that
“Said Goods are now in possession of Debtor, and are or when acquired by Debtor will be located at MAN RANCH; MAN RANCH; and WESTERN FEEDYARD, INC. in Shawnee; Wabaunsee; and Stanton County, State of Kansas.” (See Appendix 1, copy of security agreement.)
The description in the financing statement echoes the security agreement description, but contains no reference to the location of the livestock.
Atchison Auction contends that the language of the security agreement covers only those cattle in the stated location, that Hilst had cattle in other counties, and that the Bank failed to show that these cattle were covered by the security agreement. The district court found that the security agreement granted the Bank a security interest in “all livestock” owned by Hilst and that the cattle sold were subject to the security agreement. We agree.
Two provisions of the Uniform Commercial Code speak to the sufficiency of a description of collateral in a security agreement or financing statement.
K.S.A. 84-9-110 provides:
“[F]or purposes of this article, any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.”
K.S.A. 84-9-402(1) further provides, in part:
“A statement of collateral in a financing statement is adequate if it generally identifies goods by one or more of the classifications listed in K.S.A. 84-9-109, or generally identifies other collateral by one or more of the following classifications: fixtures, documents, instruments, general intangibles, chattel paper or accounts. A statement of collateral in a financing statement shall not be deemed inadequate solely because it is broader than, or otherwise differs from, that found in the security agreement. A description of the location of the collateral is not necessary to an adequate statement except insofar as a description of location is specifically required by the uniform commercial code.”
The Code does not require that a description of livestock include a description of the location of the collateral. Furthermore, we find that the word “livestock,” one of the items included within the K.S.A. 84-9-109(3) definition of “farm products,” reasonably identified the covered collateral and was sufficient to create a security interest in all livestock owned by Hilst.
The debtor’s covenant to keep the collateral at a specific location is not part of the language granting the security interest, but merely a promise on the part of the debtor to restrict the physical location of his livestock. As such it does not act as a limitation on the grant of the security interest. Cf. In re Little Brick Shirthouse, Inc., 347 F.Supp. 827 (N.D. Ill. 1972).
Even if the covenant could be read as part of the language granting the security interest, a review of case law in other jurisdictions reveals that in a majority of cases where a description of the location of the collateral is not required by the code, inclusion of a location in the description does not limit the security interest unless the language of the agreement is unambiguous. See, e.g., Matter of California Pump & Mfg. Co., Inc., 588 F.2d 717 (9th Cir. 1978); Matter of Metzler, 405 F. Supp. 622 (N.D. Ala. 1975); In re Lee, 14 Bankr. 804 (Bankr. E.D. Tenn. 1981); Cf. First State Bank of Nora Springs v. Waychus, 183 N.W.2d 728 (Iowa 1971).
Here there was ambiguity in the conflicting descriptions, and the trial judge correctly allowed parol evidence to determine the intent of the parties. The testimony of the parties unequivocally showed that the Bank was shown all of Hilst’s cattle, including those kept in counties other than those listed when entering into the agreement, and that both parties clearly intended and understood that the security agreement would cover all of Hilst’s livestock. Under these circumstances the intent of the parties governs, and the covenant of the debtor will not serve to limit the extent of the security interest. The trial court did not err in finding the cattle sold were owned by Hilst and subject to the Bank’s security interest.
Alternatively, Atchison Auction argues that the Bank consented to the sale, waiving its security interest in the cattle in question. This argument, too, must fail.
The general rule of commercial law is that a buyer in the ordinary course of business takes free of a security interest created by his seller. K.S.A. 84-9-307(1). However an exception to the general rule occurs when the buyer is “a person buying farm products from a person engaged in farming operations.” K.S.A. 84-9-307(1). Livestock is included within the definition of farm products, and the parties do not dispute that Hilst was a person engaged in farming operations. K.S.A. 84-9-109(3). This exception permits a secured creditor to reach collateral in the hands of a good faith purchaser unless consent to the sale was given pursuant to K.S.A. 84-9-306(2), which provides:
“Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.”
Sale may be authorized by the secured party “in the security agreement or otherwise.” K.S.A. 84-9-306(2). In North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., 223 Kan. 689, 577 P.2d 35 (1978), the Kansas Supreme Court recognized that nothing in the Code prevents a secured party from attaching conditions or limitations to its consent to sale of collateral by a debtor, and that an unauthorized sale in violation of the conditions would not defeat the security interest. The security agreement in this case required written consent of the Bank before sale of the collateral. The loan agreement further provided that all checks from sale of the collateral be made payable solely to the Bank or jointly payable to Hilst and the Bank. Testimony showed that the Bank waived the requirement of written consent prior to sale, but required that Hilst discuss any proposed sale with them prior to the sale. Although the ultimate decision to sell rested with Hilst, oral consultation of the sale was required.
The record clearly reveals Hilst knew he had an obligation to consult with the Bank prior to any sale, and nothing in the record indicates the condition was ever waived. Furthermore, although Bill Berry, the Bank’s loan officer, testified that Hilst should have known to forward a check made payable solely to him to the Bank to be applied on the loan, there was no evidence to indicate Hilst was authorized to have checks from cattle sales made solely to him.
The unauthorized sales in Manhattan on October 23 and in Atchison on October 24 were the first sales after the agreement with the Bank was signed, and in each instance Hilst failed to notify the Bank of the proposed sale and kept the proceeds. The Bank had no knowledge of the sales, and no course of dealing had been established between the parties to indicate the Bank approved and would accept proceeds checks made payable solely to Hilst. In fact, Hilst’s own testimony reveals just the opposite:
“Q. Now, did Bill Berry ever tell you, Dr. Hilst, you can go to the sale barn or anyplace and sell the collateral and have the check made payable to you only; did he ever tell you that?
“A. Not to my recollection.
“Q. Did he ever tell you that you could take the cattle you’d mortgaged to the bank, take them to a sale barn and sell them and keep the money?
“A. I can only think of one instance where this really came up, and that was at Christmas time when the ceiling on the loan limit had been reached and there was a question of whether that could be raised or not, and we had a bunch of stray cattle left that were too large to keep and needed to be sold, and I asked him if it was okay to sell them locally and pay some of the feed bills,, and he said yes.”
It is clear Hilst knew the condition had not been waived by the fact he later explicitly sought permission to have the condition waived for a specific purpose.
Finally, we cannot find that the Bank’s instruction to Hilst to clear up the liens on the Winsor cattle constituted an explicit waiver of the conditions. Hilst was specifically instructed to clear up the liens with funds other than those connected with his Oklahoma Bank loan and, although several alternatives were discussed, the sale of cattle was not among them. Sufficient evidence supports the trial court’s conclusion that the conditions to sale were neither explicitly nor implicitly waived in this case.
This case differs from those cases in which the court has found an explicit waiver of the condition. In North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., evidence showed that a bank officer told the debtor that he could sell cattle providing he had the check made jointly or applied the proceeds to the loan. 223 Kan. at 697. A similar instruction was found to defeat the security interest in the recent case of Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, 695 P.2d 444 (1985). Again in North Cent. Kan. Prod. Cred. Ass’n v. Boese, 2 Kan. App.2d 231, 577 P.2d 824 (1978), an instruction to mail or deliver a check for the proceeds was deemed tantamount to express consent that the debtor receive checks in his own name since he could not cash a jointly payable check. When the Production Credit Association later required that all checks be made jointly payable, the court concluded the security interest in the collateral was maintained. 2 Kan. App.2d at 234-35.
We cannot find that the trial court erred in concluding the conditions to sale were not waived, given the facts of this case. Therefore, the sales were unauthorized and the Bank’s security interest in the cattle continued.
If Hilst was not authorized to sell the cattle, Atchison Auction, acting as his agent, also had no authority to sell the cattle. A livestock auctioneer who unauthorizedly sells property subject to a third party’s security interest is liable in conversion to that third party even if the auctioneer has no knowledge of the security interest. United States v. Burnette-Carter Co., 575 F.2d 587, 588 (6th Cir. 1978). The common-law rules of a factor’s liability were reiterated by the Kansas Supreme Court in DeVore v. McClure Livestock Commission Co., Inc., 207 Kan. 499, 503-04, 485 P.2d 1013 (1971), where the court said:
“In analyzing the rights of the appealing parties, we start with the common law rule that a factor or commission merchant who receives property from his principal, sells it under the latter’s instructions and pays him the proceeds of the sale, is guilty of a conversion if his principal had no title thereto or right to sell the property, and generally the factor may not escape liability to the true owner for the value of the property by asserting he acted in good faith and in ignorance of his principal’s want of title (32 Am. Jur. 2d, Factors and Commission Merchants, § 45; 35 C.J.S., Factors, § 57b). The basis for the factor’s liability if he assists in a conversion, even though innocent, is the fact he stands in the shoes of his principal (Birmingham v. Rice Bros., 238 Iowa 410, 26 N.W.2d 39,2 A.L.R.2d 1108, cert. den. 332 U.S. 768, 92 L.ed. 353, 68 S.Ct. 79, reh. den. 332 U.S. 820, 92 L.ed. 397, 68 S.Ct. 151).”
Under these common-law principles Atchison Auction stands in the shoes of Hilst. Since Hilst was unauthorized to sell the cattle, the auction company is liable for conversion of the proceeds from the sale.
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Abbott, J.:
This is an appeal in a workers’ compensation case. The claimant, Delbert Saffer, appeals, questioning only the method used to compute his average weekly wage.
The salient facts are undisputed. Claimant worked for the respondent, Blackstone Drilling, Inc., (Blackstone) as a “truck pusher” before his retirement. His primary job was to oversee the transportation and assembly of oil drilling rigs and pumps.
Claimant retired in March of 1980, and from time to time after that he filled in for vacationing employees of Blackstone.
In June of 1981, Blackstone’s “truck pusher” took two weeks’ vacation time and arrangements were made for claimant to work for two weeks, beginning Monday, June 22, 1981. Claimant was injured two days after commencing work. The nature and extent of his injury and disability are not in issue.
Claimant contends his compensation should be based on an average weekly wage of $511, or in the alternative what the average weekly wage of the “truck pusher” he was filling in for would have been if the regular “truck pusher” had been injured. The $511 figure is based on 40 hours of regular pay at $7 per hour and 16 hours of overtime at $10.50 per hour plus $9 per day per diem based on 8 hours per day, 7 days per week.
The administrative law judge found that the hiring contract was for two weeks of full-time work of 56 hours per week at $7 per hour for 40 hours and time, and a half thereafter, plus $9 per day for each 8-hour day worked; that claimant did not intend to work longer, nor was he engaged with the possibility of doing so. The administrative law judge also found that:
“Claimant put in a full day’s work every day he did work, so that he was not ‘part-time hourly’; and he was engaged only for specific limited times and employment, so that he was not a ‘full-time hourly’ employee. Moreover, the terms of his employment were not indefinite, ‘until further notice’, and as he was not engaged as a permanent part-time or full-time employee, the computation of average gross weekly wage falls outside K.S.A. 44-511(a)(4) and (5), but within K.S.A. 44-511(b)(5), regarding determination by the Director where, as here, Claimant was employed for less than one calendar week immediately preceding the accident, as there is no question Claimant was not “employed” by Respondent, or on call, in that he filled in for absent employees only at his pleasure, and Respondent’s specific request, and the only compensation paid was for hours actually worked in performance of such agreement.”
The administrative law judge found that claimant had previously worked for Blackstone; he then took the total wages paid to the date of the accident and divided by the weeks elapsed since the first day of employment in 1981 and arrived at a compensation rate of $44.99 per week. The reason for the low average weekly wage arrived at is because claimant had worked a total of only 71 hours during the 11.43 weeks immediately preceding his injury. During that period he worked part of 4 weeks, but never a full week. He worked 18 hours, 11 hours, 42 hours and 25 hours (the two days before the accident) in each of the 4 weeks, for which he drew a total wage of $672 plus per diem allowance of $99 for a total of $771. Those 96 hours were worked during a 11.43-week period, and the administrative law judge divided the $771 earned by 11.43 weeks to arrive at a gross average weekly wage of $67.45 and a compensation rate of $44.99.
Director’s review was not requested. The trial judge adopted the administrative law judge’s findings of fact and conclusions of law with one minor change which is not germane to this appeal.
Claimant appeals, contending that any worker hired to work forty hours or more per week is a full-time employee pursuant to K.S.A. 44-511(a)(5), and thus claimant is entitled to the maximum rate per week.
Blackstone takes the position that the computation of “average weekly wage” provided by K.S.A. 44-511 does not adequately cover the unique factual circumstances, and that a fair and accurate resolution of this case requires us to make a determination that is not specifically mentioned in the Workmen’s Compensation Act, and that is whether the employment is “temporary” or “permanent” in character. Blackstone suggests that the language of K.S.A. 44-511(b)(4) and (5) is consistent with his argument.
A practical consideration is that a worker who is covered by the Workmen’s Compensation Act loses the right to seek common-law damages from an employer. The legislature surely considered that element in adopting a scheme for computing average weekly wage; it would not have taken away a worker’s common-law action and replaced it with a system that would possibly reduce a worker’s compensation recovery to a mere pittance for a catastrophic injury. Some states cover this possibility by excluding “casual” workers from compensation coverage, thus preserving their common-law action. Kansas does riot do so. Regardless, claimant’s contract of employment was for 112 hours, which would take him out of “casual” status in those states whose statutes we have examined.
The fundamental rule of statutory construction is that the purpose or intent of the legislature governs when it can be ascertained from the statute. State v. Dumler, 221 Kan. 386, Syl. ¶ 1, 559 P.2d 798 (1977). This court cannot nullify legislative will nor concern itself with the wisdom of legislative policy. In re Estate of Bowman, 172 Kan. 17, 22, 238 P.2d 486 (1951). Our function is to ascertain legislative intent.
In 1955, G.S. 1949, 44-511 was amended to provide for a minimum work week of 5 days; and if an employee worked a single day on a job, the average weekly wage was found by multiplying the daily wage by 5 (or, if the worker worked more than 5 days a week, by the customary number of days worked). Thus, the 1955 act made some part-time employees into full-time employees for compensation purposes. Zeitner v. Floair, Inc., 211 Kan 19, 505 P.2d 661 (1973). The year following the Zeitner opinion, the legislature revised 44-511 (L. 1974, ch. 203, § 18) so that 44-511(a)(4) and (5) and 44-511(b)(4) and (5) were worded in substantially the same way they are today. The statute was amended in 1977 (L. 1977, ch. 175, § 3) and again in 1979 (L. 1979, ch. 156, § 9). Neither the 1977 nor 1979 amendments have any direct bearing on our quest to determine legislative intent concerning the facts before us.
The pertinent parts of K.S.A. 44-511 are:
“(a) As used in this section:
“(4) The term ‘part-time hourly employee’ shall mean and include any employee paid on an hourly basis: (A) Who by custom and practice or under the verbal or written employment contract in force at the time of the accident is employed to work, agrees to work, or is expected to work on a regular basis less than forty (40) hours per. weék; and (B) who at the time of the accident is working in any type of trade or employment where there is no customary number of hours constituting an ordinary day in the character of the work involved or performed by the employee.
“(5) The term ‘full-time hourly employee’ shall mean and include only those employees paid on an hourly basis who are not part-time hourly employees, as defined in this section, and who are employed in any trade or employment where the customary number of hours constituting an ordinary working week is forty (40) or more hours per week, or those employees who are employed in any trade or employment where such employees are considered to be full-time employees by the industrial customs of such trade or employment, regardless of the number of hours worked per day or per week.
“(b) The employee’s average gross weekly wage for the purpose of computing any compensation benefits provided by the workmen’s compensation act shall be determined as follows:
“(4) If at the time of the accident the employee’s money rate was fixed by the hour, the employee’s average gross weekly wage shall be determined as follows: (A) If the employee was a part-time hourly employee, as defined in this section, the average gross weekly wage shall be determined in the same manner as provided in paragraph (5) of this subsection; (B) if the employee is a full-time hourly employee, as defined in this section, the average gross weekly wage shall be determined as follows: (i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weekly rate shall be found by multiplying the daily money rate by the number of days and half days that the employee usually-and regularly worked, or was expected to work, but forty (40) hours shall constitute the minimum hours for computing the wage of a full-time hourly employee; (iii) the average weekly overtime of the employee shall be the total amount earned by the employee in excess of the amount of straight-time money earned by the employee during the twenty-six (26) calendar weeks immediately preceding the date of the accident, or during the actual number of such weeks the employee was employed if less than twenty-six (26) weeks, divided by the number of such weeks; and (fv) the average gross weekly wage of a full-time hourly employee shall be the total of the straight-time weekly rate, the average weekly overtime and the weekly average of any additional compensation.”
The Supreme Court has said many times that the Workmen’s Compensation Act is complete iir itself. We must therefore look to the above language in computing the benefits due this claimant. Whether claimant was a “temporary” or “permanent” employee is immaterial unless the language of the statute can be read to make it material. Likewise, what we consider to be fair and equitable under the circumstances is not the determinative factor.
In McMechan v. Everly Roofing, Heating & Air Conditioning, Inc., 8 Kan. App. 2d 349, 350, 656 P.2d 797, rev. denied 233 Kan. 1092 (1983), a panel of this court held that 44-511(a)(4) and (5) are mutually exclusive, so that if an employee is not part-time, he must be full-time. The act makes no separate provision for temporary workers or workers who limit their participation in the labor market. The legislature obviously intended that such persons be either part-time hourly employees or, if they do not fit that definition, be full-time hourly employees.
Here, the trial court and administrative law judge determined that claimant was not a part-time hourly employee pursuant to K.S.A. 44-511(a)(4), and we agree with that determination. They also - determined that claimant was not a full-time hourly employee because he was engaged for a limited time. The trial judge and administrative law judge apparently relied on Campbell v. Industrial Acc. Com., 95 Cal. App. 2d 570, 213 P.2d 395 (1950) and 2 Larson’s Workmen’s Compensation § 60.20 (Desk ed. 1984).
Our Supreme Court has said many times that workers’ compensation cases from other jurisdictions are usually of little help in Kansas because of the difference in statutory language. We believe that to be the situation here.
In Campbell, reference was made to the California Labor Code, section 4453, and it was stated that the formula for determining average weekly earnings fell into four categories designated (a), (b), (c) and (d). Subsection (d) provided that it applied “where for any'reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied.” 95 Cal. App. 2d at 573. Thus, in Campbell, the California legislature had provided an alternative when an employee did not precisely fit its definition of a part-time or full-time hourly employee. Campbell is therefore no authority for us to say in this case that it is not reasonable and fair to hold claimant is a full-time hourly employee.
We have also examined the cases cited in Larson’s. The New York cases are based on a statute that requires a different formula when the worker voluntarily and for long periods of time limits his or her participation in the labor market. See Pfeffer v. Parkside Caterers, Inc., 53 App. Div. 2d 753, 384 N.Y.S.2d 513 (1976) aff'd 42 N.Y.2d 59 (1977); Mtr. of Jacob v. Tn. of Glenville, 43 App. Div. 2d 409, 352 N.Y.S.2d 265 (1974); N.Y. Work. Comp. § 14(3) (McKinney 1965). Larson’s cites no cases that deal with a factual situation similar to the one before us. In fact, it states:
“It is difficult to see the justification of these cases that knowingly inflate benefits beyond what the claimant.intended to earn in the past and presumably intended to continue to earn in the future, as long as there is any. sort of residual or catchall clause that is available when the more mechanical formulas cannot fairly be applied.” 2 Larson’s Workmen’s Compensation § 60.20, p. 10-150 (emphasis supplied).
K.S.A. 44-511(a)(5) does not limit its definition of full-time hourly employees to those hired for an indefinite period and makes no alternative provision to cover an employee who voluntarily and for long periods of time limits his or her participation in the labor market, nor is there statutory authority for another method if the trier of fact determines it is not fair and reasonable to usp either 44-511(a)(4) or (5). Viewing the record before us and based on the facts of this case, we are of the opinion that 44-511(a)(5) more closely fits legislative philosophy and reflects legislative intent.
Blackstone argues that for us to hold as we have will bring about an unjust result. This court stated in Wilson v. Moridge Mfg., Inc., 2 Kan. App. 2d 374, 579 P.2d 725 (1978):
“Our Supreme Court has noted in the past that the fact the application of workmen’s compensation statutes may seem to operate unjustly affords no grounds for the courts to substitute rules different from those enacted by the legislature. If a practical operation of the law is found to bring disproportionate or unjust results, it may be assumed that the legislature will amend it, but that function belongs to that body alone.” 2 Kan. App. 2d at 376, citing Wammack v. Root Manufacturing Co., 184 Kan. 367, 373, 336 P.2d 441 (1959); Anderson v. Oil & Refining Co., 111 Kan. 314, 316, 206 Pac. 900 (1922).
We thus hold that the trial court erred in computing the average weekly wage.
Reversed and remanded with directions to compute the claimant’s average weekly wage pursuant to K.S.A. 44-511(a)(5) and (b)(4). | [
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Meyer, J.:
This is an appeal by Frank VanLerberg (appellant), the executor and primary beneficiary of a will of Leonard Met-tee, deceased, from an order which denied admission of the will to probate.
On April 14, 1980, Leonard Mettee made and executed a will. The will consisted of an original ribbon copy plus two photocopies. All three of these were executed with the required testamentary formalities. One of the photocopies was retained by the preparing lawyer, another photocopy was handed to the testator, and the original ribbon copy was filed with the Probate Court of Wyandotte County, Kansas.
The attorney who prepared the April 14, 1980, will testified that Mettee, some time between April 14,1980, and May 8, 1980, contacted her and stated that “he wanted his will and he also wanted to make some few changes . . . She further stated that Mettee at that time gave her his copy of the will, the envelope in which.it was contained, and a piece of paper. The envelope and the piece of paper had written on them changes Mettee wanted to make in his will.
On May 8, 1980, Mettee withdrew his April 14, 1980, original will from the probate court. This document was not found among Mettee’s personal effects after his death and it had not been left with his attorney. Mettee died December 21, 1982, without further contacting his attorney regarding his will. Appellant, lacking the original, attempted to gain admission of the will to probate by use of the two executed photocopies thereof. One Brenda Mettee, claiming to be decedent’s daughter, and various other heirs of decedent, contested this attempt by appellant. Admission of the photocopies was denied and Mettee was adjudged to have died intestate. Appellant filed a notice of appeal on October 12, 1983.
On October 19, 1983, the trial court appointed a special administrator, and on October 20, 1983, appellant filed yet another notice of appeal, this time contending the trial court lacked jurisdiction to appoint a special administrator because the case was appealed and docketed before this court. On October 21, 1983, petitioner asked this court to stay proceedings pending appeal, and on October 25, 1983, respondent asked this court for involuntary dismissal stating that the order appointing the special administrator was not an appealable order. This court denied petitioner’s motion on October 26, 1983, and on November 8, 1983, ruled on respondent’s motion by stating that the court would “consider on the merits only issues properly before it,” and that costs and fees would be determined with the merits. On November 4, 1983, petitioner filed a motion to vacate and set aside the judgment pursuant to K.S.A. 60-260(b)(2) based on newly discovered evidence. On January 9, 1984, the trial court denied the motion and refused to ask this court to remand the case. This court then ruled that the propriety of such issue, also, would be determined when the case was heard on its merits.
The first issue on appeal is whether revocation of Mettee’s will should be presumed as a matter of law. Appellant contends that such a common-law presumption is not applicable to the instant case. The trial court ruled that the will is presumed to have been revoked because the ribbon copy thereof, known to have been in Mettee’s possession prior to his death, was not found in his possession after his death.
The common-law presumption of revocation is followed by a majority of jurisdictions and is recognized in Kansas cases concerning single wills. In In re Estate of Thompson, 226 Kan. 437, 442, 601 P.2d 1105 (1979), the court stated: “Where the facts disclose that a will, duly executed, was in the possession of the testator for some time immediately prior to his death and it cannot be found after his death, a rebuttable presumption arises that he did revoke the will or that he destroyed it with the intention of revoking it.” We see no reason why the rule should be different in cases in which more than one will was executed. Nevertheless, we are not without authority even where such is the case. Thus, we note that in 1 Bartlett, Kansas Probate Law and Practice § 431 (rev. ed. 1953), the author says:
“As each of duplicate wills contains the will of the testator, a revocation of either is a revocation of his will, and thus revokes both. The rule seems to be well established, when a will is executed in duplicate, that each is regarded as the original and that a revocation of either is a revocation of both.
“The rule generally followed by courts where the probate of duplicate wills has been considered is that where the duplicate copy retained by the testator is not produced or its absence satisfactorily accounted for, the other copy may not be admitted to probate as the testator’s last will and testament, for the reason that the presumption of revocation arises from proof of possession of the paper by the testator before his death and its unaccounted for absence thereafter, and the revocation of the duplicate copy retained by the testator necessarily constitutes a revocation of the copy in the custody of another person.”
There is no merit to appellant’s contention that the Kansas Probate Code abrogates the common law in this state. We find no indication that the legislature intended such a result. When that body has so intended they have not hesitated to pass specific legislation to such effect. Thus, K.S.A. 58-502 abolished the rule in Shelley’s case, K.S.A. 58-504 abolished the rule of indefinite failure of issue, K.S.A. 58-505 abolished the rule in Wild’s case, and K.S.A. 58-506 abolished the doctrine of worthier title. Furthermore, K.S.A. 77-109 provides that the common law “shall remain in force in aid of the General Statutes of this state” unless the common law is statutorily derogated. And, as was said in Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan. 689, 695, 371 P.2d 193 (1962), “the common law of England has been the basis of the law of this state, and except as modified by constitutional or statutory provisions, by judicial decisions, or by the wants and needs of the people, it has continued to remain the law of this state.”
Appellant next contends (following his reasoning that the common law is not applicable) that a will can be revoked only by the means stated in K.S.A. 59-611. This argument lacks merit. The presumption of revocation is not inconsistent with K.S.A. 59-611, and in the absence of any legislative intent to abrogate this common-law rule, the rebuttable presumption is part of the law of this state. See Patrick v. Bedrick, 169 Conn. 125, 127, 362 A.2d 987 (1975) for an explanation of this proposition.
Appellant also contends that the legislature, in amending K.S.A. 59-2228, intended to abolish the common-law presumption. There is no merit to this contention. First, a search of the legislative history of K.S.A. 59-2228 reveals no such intent. Second, appellant here confuses two separate concepts. Proving that a will is revoked and establishing a lost will are different issues. A will known to have been in testator’s possession that cannot be found upon his death is presumed revoked. If the testator’s intent to revoke is rebutted, the will is deemed lost and may be admitted to probate if the provisions of K.S.A. 59-2228 are satisfied. If the presumption is not overcome, probate is denied on the basis of the inferred intent to revoke. A revoked will cannot be established as a lost will. Therefore, the common-law presumption is separate from, and has no connection with, the lost wills statute, K.S.A. 59-2228.
Finally, in regard to the presumption of revocation, appellant calls our attention to Matter of Estate of Shaw, 572 P.2d 229 (Okla. 1977). We choose not to follow the Shaw case, not only because we do not agree with the reasoning of that case, but also because it is against the great weight, of authority, as well as it being contrary to the common law and the law of this state.
Appellant’s next major contention is that the trial court erred in holding that his evidence failed to rebut the presumption that the testator had destroyed his missing will with intent to revoke it.
When we view the evidence, as we must, in a light most favorable to the party prevailing below, it is clear that appellant failed to meet the burden of overcoming the presumption of revocation. In connection with this issue, however, one set of circumstances calls for special note. On November 4, 1983, almost a year after decedent’s death and over three years following the event upon which appellant’s claim is based, appel lant advised the trial court he had newly discovered evidence. This evidence consisted of one Betty Hall, who, appellant claimed, would testify that on a return trip from Mexico in December 1980 Mettee advised her that on a trip in July of 1980, his will together with other property had been stolen from his car. The trial court was asked to seek remand of the case, then on appeal, to the trial court for the purpose of receiving testimony as to this explanation of what happened to the original ribbon copy of the April 14, 1980, will. The trial court refused to seek remand of the case, and had this to say:
“Betty Hall had been a friend of the petitioner’s sister for some twenty-five years. She had known the petitioner since May of 1980. She learned of Mr. Mettee’s death approximately one month after it occurred. In talking to the petitioner’s sister, she never mentioned the will. It was only after the trial that she deemed it important.
“[Mr. Mettee] felt that the petitioner was a good friend of his, yet he never mentioned the loss to him. In fact, he told no one else of any robbery. We know he was dissatisfied with the will he withdrew from the court. The purported robbery was some two and a half years prior to his death. After considering all of the evidence presented at the trial, the testimony of Betty Hall as found in her deposition would not be sufficient to grant the petitioner relief per K.S.A. 60-260.”
Whether to grant a new trial based on newly discovered evidence is within the discretion of the trial court. State v. Warwick, 232 Kan. 232, 233, 654 P.2d 403 (1982). We see no abuse of discretion here.
We have not overlooked various other contentions of appellant, but conclude that none of them have merit.
In conclusion we hold that the common-law presumption of revocation is in effect in Kansas, that appellant did not present sufficient evidence to overcome the presumption, and that the trial court did not abuse its discretion in refusing to grant a new trial on the basis of newly discovered evidence.
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Flood, J.:
This is an appeal by the respondent and insurance carrier from a workers’ compensation award to the claimant on the basis of accidental injury. The claimant, Garry L. Baldwin, was employed as a heating and air conditioning mechanic by the respondent, Jensen-Salsbery Laboratories. The respondent, among other things, cultures brucella in Building 9 of the plant in which claimant worked. On December 21, 1979, the claimant became ill at work and passed out. He was ultimately diagnosed as having contracted brucellosis.
Garry L. Baldwin made claim for compensation alleging that brucellosis was an occupational disease. The Administrative Law Judge found the claimant had contracted an occupational disease, brucellosis, in his employment and awarded temporary-total disability and medical expenses but denied permanent partial disability compensation. On review the Workmens’ Compensation Director also found brucellosis to be an occupational disease but found the claimant had sustained a 15% diminution in earning capacity and awarded $14,202.29 in addi tional compensation. On appeal, the district court found the brucellosis was a result of accidental injury and awarded the claimant $23,067.28 for a 75% permanent partial disability.
The respondent and insurance company appeal, contending the district judge was incorrect in finding brucellosis to have been contracted by accident rather than its being an occupational disease, and further questioning the measure of damages for occupational disease. If the district court was correct in finding an accidental injury, we need not reach respondent’s second issue.
The claimant was not a laboratory employee but a maintenance worker. Over a period of time he had worked in a plant which may have been contaminated by brucella cultures. On the other hand, claimant did testify to an incident in December 1979, two weeks before he became ill, in which he cut his hand on sheet metal. He then retrieved a tool from the floor which had fallen into liquid containing the brucella. It was this incident which formed the basis for the district court’s finding of accidental injury.
The Supreme Court in Martin v. Cudahy Foods Co., 231 Kan. 397, 646 P.2d 468 (1982), had occasion to deal with the distinction between occupational disease and accidental injury. The examiner had found tenosynovitis to be an accidental injury, but the district court based the award on contraction of an occupational disease. The Supreme Court held it was an accidental injury, saying:
“[A]n occupational disease must result from the nature of the employment which requires that there be attached to the employment a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and which carries with it a special risk of such disease connected with the particular type of employment. The disability suffered by claimant was one which may be common to numerous occupations or employments where repeated cyclic use of a portion of the body may result in inflammation of tendons and sheaths.” 231 Kan. at 399-400.
The claimant was a maintenance worker, not a laboratory technician. He cut his hand and it became infected from conditions existing at the plant where he worked at the time. Such an injury is common to many occupations. While brucellosis may be classified as an occupational disease in many states, there are cases in which it has been held to be caused by accidental injury. In Mid-South Packers, Inc. v. Hanson, 253 Miss. 703, 178 So. 2d 689 (1965), the claimant was a maintenance man in a packing house. He constantly incurred numerous cuts and scratches on his hands and eventually contracted brucellosis. Noting that the number of cases at the plant were insufficient to indicate that a workman in claimant’s position would expect to contract such a disease, the court held brucellosis to be caused by accident. In Wilson Foods Corp. v. Porter, 612 P.2d 261 (Okla. 1980), the claimant worked in a hide cellar and his exposure to salt caused the skin on his hands to crack. Noting that brucellosis could be classified as either an accidental injury or as an occupational disease, the court held testimony of numerous contaminating incidents was ample proof of accidental injury. See also Ridley Packing Company v. Holliday, 467 P.2d 480 (Okla. 1970). The evidence in this case supports the trial court’s conclusion that the claimant contracted brucellosis by accident and disability on this basis was properly awarded.
The respondent and insurance carrier claim prejudice because the claim for compensation was made for occupational disease. In Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 663 P.2d 1144 (1983), a similar claim was advanced. The initial claim was for compensation by reason of accident or occupational disease but the claim was tried on the theory of occupational disease. The administrative law judge found the claimant had proven an accidental injury. The court stated:
“The purpose of the notice provisions contained in the Workmen’s Compensation Act is to afford the employer an opportunity to investigate the accident and furnish prompt medical treatment. Prejudice may arise from lack of notice if the employer is substantially hampered in making an investigation so as to prepare a defense.” Syl. ¶ 4.
The testimony to support an accident was elicited from the claimant at the initial hearing. The respondent defended on the theory that claimant did not have brucellosis. The defense would have been the same if accidental injury had been claimed. We find no prejudice.
Since the trial judge’s decision was correct, it is unnecessary to decide the proper measure of compensation for occupational disease.
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Briscoe, J.:
This is a zoning case in which the City of Olathe appeals the district court’s determination that the City acted unreasonably in rezoning a 25-block tract. The City also challenges an award of damages to Robert L. Rieke Building Company, Inc., (Rieke); Rieke cross-appeals, contending the damage award was inadequate.
In 1970, the City of Olathe adopted a zoning map which zoned the area in question R-2, allowing both single-family and duplex residential construction. In 1973 the area came under an urban renewal plan known as the Fairview Neighborhood Development Program. The general urban renewal plan was later amended by Disposition Supplement No. 1. Rieke was high bidder on all but two of the lots advertised for sale in 1973. Between 1975 and 1979, Rieke purchased lots within the development area from the City, from the Urban Renewal Agency, and from individuals. It is apparent from the record that Rieke made a significant financial commitment.
Rieke began developing its properties through construction of single-family homes. Between 1975 and 1978, plaintiff constructed 45 single-family residences in the area, with mixed results financially.
The record also reveals some zoning activity during this period of time. In 1977, Rieke requested downzoning on a tract in order to comply with driveway requirements in construction of four duplexes. The Olathe City Commission denied the request. In 1979, Rieke requested and was granted a variance to permit construction of five duplexes on an area that was five percent short on square footage requirements. This tract was within the area later rezoned R-l, but outside the urban renewal area.
Also in 1979, the Olathe Housing Authority invited proposals on a 30-unit low rent housing program for the Fairview area. Rieke’s proposal was unanimously selected and submitted to the federal Department of Housing and Urban Development (HUD).
In an apparently unrelated plan for construction of a fourplex, Rieke applied for R-3 zoning of three lots. Obviously aware of the proposed low rent housing proposal, many Fairview residents appeared at the December 10, 1979, public hearing in opposition to the zoning request. The hearing was continued to January 14, 1980.
In the interim, the Olathe Housing Authority moved to reject all proposals for the low rent housing project and readvertise for proposals on sites elsewhere in Olathe. HUD approved.
Hearings on Rieke’s R-3 zoning request continued with 123 residents filing a petition in favor of R-l zoning for the entire Fairview neighborhood. Hearings then commenced on the R-l zoning request with Rieke and others appearing in opposition. Eventually, the Olathe City Commission adopted Ordinance 80-24 rezoning a 25-block area in the Fairview neighborhood from R-2 to R-l.
In June, 1980, Rieke sued the City of Olathe and the Olathe Housing Authority, attacking the rezoning as unreasonable and alleging breach of contract based upon the urban renewal plan, the sale of land by special warranty deeds, and the conduct of the parties. The Housing Authority was later dismissed with prejudice on stipulation of the parties. After trial to the court, the district judge found the City’s rezoning unreasonable under the standards enunciated in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), ordering the property to revert to its former R-2 zoning classification. The court further found the City estopped to rezone Rieke’s land. The court found breach of contract and awarded Rieke $20,500 in damages. The City appeals all rulings; plaintiff cross-appeals, challenging the adequacy of the damages. This court granted the City of Olathe’s motion for stay pending appeal.
We first address whether Ordinance No. 80-24, which rezoned an approximately 25-block area from R-2 to R-l, was arbitrary, capricious, and unreasonable.
The well-settled scope of judicial review of zoning decisions is summarized in Combined Investment Co. v. Board of Butler County Commrs, 227 Kan. 17, 28, 605 P.2d 533 (1980):
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” Emphasis added.
Cited with approval in Taco Bell v. City of Mission, 234 Kan. 879, 885-86, 678 P.2d 133 (1984). See also Golden v. City of Overland Park, 224 Kan. at 595-96; Highway Oil, Inc. v. City of Lenexa, 219 Kan. 129, 132, 547 P.2d 330 (1976); Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 865-66, 518 P.2d 410 (1974); Arkenberg v. City of Topeka, 197 Kan. 731, 734-35, 421 P.2d 213 (1966).
In the present case, only the reasonableness of the zoning action is challenged. To determine whether the action was reasonable, we apply the eight criteria enunciated in Golden v. City of Overland Park, 224 Kan. at 598.
Character of the neighborhood.
The parties disagree over the description of the “neighborhood” in question. The area which Rieke proposed as the “neighborhood,” and the district court adopted, is bounded by undeveloped and unplotted land lying north of Taft Park, by Highway K-7 on the west, by Santa Fe Avenue on the south, and by the Atchison, Topeka & Santa Fe Railroad on the east. The City focused on the smaller rezoned area as being the “neighborhood,” about 25 city blocks located generally west of Willie Street and north of Poplar Street.
The character of the larger area is low density residential consisting of single-family residences interspersed with well over 100 existing duplexes and multi-family dwellings. The smaller area is predominantly single-family dwellings.
The definition of the “neighborhood” under consideration is to be determined on a case-by-case basis. City of DeSoto v. Centurion Homes, Inc., 1 Kan.App.2d 634, 639, 573 P.2d 1081, rev. denied 225 Kan. 843 (1977). Both parties key their description of the neighborhood to the same general area. In the testimony before the Planning Commission, an area of single-family dwellings buffered by R-2 and R-5 zoning was described. The district court found, and Rieke agrees, that there is no homogenous grouping of single-family dwellings but rather a gerrymandered area carved out of a larger neighborhood that includes the buffer areas.
It is not unreasonable for the City to look to the 25-block rezoned area in its determination of “neighborhood.” It is a readily definable area with a commonality of housing. The rough-edged perimeter of the area results from the exclusion of as many existing duplexes as possible to remain R-2 and serve as a buffer to the existing single-family dwellings.
Zoning and uses of properties nearby.
At the March 10, 1980, meeting of the Planning Commission, the professional staff indicated that zoning to the east, south, and west was R-2, to the north R-l, and to the northwest R-3. City Planner Roger Peterson generally agreed, although he indicated some R-5 and M-l zoning existed to the south as well as some industrial zoning and special use permits to the west. There is no serious dispute among the parties as to the zoning and uses of the property surrounding the rezoned area.
Suitability of the subject property for the uses to which it has been restricted.
The district court emphasized the number of existing duplexes in the larger neighborhood area, over 100, and the suitability of Rieke’s vacant lots for duplex construction. The professional staff reported to the Planning Commission that the area to be rezoned consisted primarily of single-family homes, many vacant lots, two churches, two parks, and seven duplex structures.
Extent to which removal of the restrictions will detrimentally affect nearby property.
There was no testimony that the more restrictive zoning would detrimentally affect nearby property. The detriment was to Rieke, who owned 21 eighty-foot lots suitable for duplex development within the rezoned area.
The length of time the subject property has remained vacant as zoned.
Rieke testified that he constructed 45 single-family homes in the area between 1975 and 1978, but that he had never obtained a building permit for a duplex.
The relative gain to the public health, safety, and welfare by the destruction of the value of Rieke’s property as compared to the hardship imposed on the individual landowner.
The district court found this property had been rezoned in direct response to neighborhood outcry over proposed publicly subsidized housing, a “plebiscite of the neighbors” prohibited by case law. Waterstradt v. Board of Commissioners, 203 Kan. 317, 320, 454 P.2d 445 (1969); Arkenberg v. City of Topeka, 197 Kan. at 738. Although the neighbors’ “wishes are to be considered, . . . the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large [citation omitted].” Arkenberg, 197 Kan. at 738. In the present case, it is clear the neighbors set the rezoning process in motion, but benefits to the community would accrue in preserving an area of predominantly single-family residences. The value of Rieke’s lots is diminished, but it is a decline in value only as to anticipated uses. See Houston v. Board of City Commissioners, 218 Kan. 323, 543 P.2d 1010 (1975).
The recommendations of permanent or professional staff.
The professional staff recognized there was no way to please all parties, but recommended the rezoning as “appropriate and logical” since “the vast majority of the property is presently being used at R-l units.” Appellee attacked the recommendation as inconsistent with a prior R-3 recommendation. Roger Peterson testified the R-l recommendation resulted from a more comprehensive analysis of existing uses than had occurred earlier. He denied public protest had a bearing on his opinion.
The conformance of the requested change to the adopted or recognized master plan.
Peterson testified the rezoning was in conformance with the city plan; however, Ronald Bonjour, a consulting civil engineer, testified that either R-l or R-2 zoning would be in conformance.
Given our scope of review in zoning cases, which is the same review of the zoning authority’s action as the district court, we cannot conclude after review of the Golden criteria that the rezoning in question was so unreasonable as to be beyond the realm of fair debate.
We next consider whether there was a contract, actual or implied, which bound the City not to rezone from R-2 to R-l those lots owned by Rieke and subject to the use restriction.
The district court found the City breached a contract with plaintiff by limiting development to one housing type in violation of the Urban Renewal Plan and Disposition Supplement. “Regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court.” Hall v. Mullen, 234 Kan. 1031, 1035, 678 P.2d 169 (1984).
Rieke contended, and the district court found, breach of the land use density provisions in the Urban Renewal Plan and Disposition Supplement No. 1.
The relevant provisions of the Urban Renewal Plan are:
“Part C. GENERAL LAND USE PLAN
“2. Description of Predominant Land Use Categories
“a. Residential
“(1) Low Density - This use category requires a density of not fewer than two families nor more than 12 families per net acre devoted to residential uses. This density requirement is not interpreted as requiring only one housing type. Housing units may be located in single, two family or multi-family dwellings provided that a net residential density of two to 12 dwelling units per acre is maintained.”
“Part E. LAND DISPOSITION
“. . . All development or redevelopment of private land will conform to controls and standards for specific disposition parcels included in supplements to this plan.”
Disposition Supplement No. 1 provides in relevant part:
“1. Land Use Provisions and Building Requirements
“a. Land use shall be as indicated on the Land Use Plan and shall be restricted entirely to low density residential redevelopment except for one commercial neighborhood convenience center.
“Residential: Low density residential use of not fewer than two families nor more than twelve families per net acre devoted to residential uses are allowable.”
The contracts for sale of land entered between the City and Rieke bound both to the conditions of the Urban Renewal Plan. Furthermore, special warranty deeds conveyed the property subject to conditions in the Urban Renewal Plan and approved modifications.
The City argues there is no contract because to contract away statutory duties is beyond the scope of its powers, citing Landau v. City of Leawood, 214 Kan. 104, 519 P.2d 676 (1974), and Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875 (1971). The contract at issue here does not delegate the authority to zone and appears to be precisely the kind envisaged in the Kansas Urban Renewal Law, K.S.A. 17-4742 et seq., as specifically set forth in K.S.A. 17-4750(a).
The City also argues that, even if there is a contract, there has been no breach because Rieke has not exhausted its administrative remedies by applying for R-2 zoning in the newly rezoned area. This would required Rieke to do a superfluous act.
The issue before us is instead an issue of contract interpretation. “When unambiguous, a contract must be enforced according to its terms, given their plain, general and common meaning, so as to give effect to the intention of the parties at the time they contracted.” Vanderpool v. Higgs, 10 Kan.App.2d 1, Syl. ¶ 1, 690 P.2d 391 (1984).
The land use plan requires low density housing which encompasses a range of structures. The question is whether the sentence “This density requirement is not interpreted as requiring only one housing type” precludes the City from rezoning part of the area to single-family homes. That sentence states that the urban renewal area may contain different types of low density housing, but the sentence does not preclude single-family housing, which is a type of low density use. At the time of this zoning change, the city attorney rendered an opinion that “[t]he city would be obligated by its zoning procedures to protect Mr. Rieke’s ability to meet the obligations imposed upon him by the low density residential requirements.“ He concluded, however, that “the city still has the power to rezone property in the Fairview Area to R-l, R-2, or R-3, since the rezoning classifications, by definition, are included in the low density residential requirements of the Urban Renewal Plah.”
This interpretation is correct. Rezoning to R-l was within the City’s authority and was not a breach of its contract with Rieke.
The City next contends it was not estopped to rezone from R-2 to R-l those lots owned by Rieke and subject to the use restric tion. The district court found the City was estopped due to promises made in the Urban Renewal Plan and Rieke’s reliance on the existing zoning.
Having concluded the City had no contractual obligation to provide R-2 zoning, there remains only the possibility that the City is equitably estopped to rezone.
“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.” United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 (1977); Colonial Investment Co. v. City of Leawood, 7 Kan.App.2d 660, 662-63, 646 P.2d 1149 (1982).
Equitable estoppel can be applied against a city in relation to a zoning matter if the city has acted within the scope of its authority. Lines v. City of Topeka, 223 Kan. 772, 780, 577 P.2d 42 (1978); Colonial Investment Co. v. City of Leawood, 7 Kan.App.2d at 662; City of DeSoto v. Centurion Homes, Inc., 1 Kan.App.2d at 640.
In the present case, it appears that the City induced Rieke to believe there would be low density zoning, although not necessarily R-2. Even if the City had led Rieke to expect R-2 zoning, it is questionable whether he has shown sufficient reliance to invoke estoppel.
Here, as in Houston v. Board of City Commissioners, 218 Kan. at 332, and in Colonial Investment Co. v. City of Leawood, 7 Kan.App.2d at 667-68, we have a plaintiff-landowner who contends he has purchased land in reliance upon the existing zoning, but who has taken little action beyond the initial purchase to develop the property in accordance with the zoning. Purchase coupled with future plans to develop is insufficient to establish detrimental reliance. Compare with Benson v. City of DeSoto, 212 Kan. 415, 510 P.2d 1281 (1973), in which the court Applied estoppel after plaintiff purchased land for particular purposes, the city annexed the land on plaintiff s petition and rezoned it for uses contemplated; plaintiff proceeded with and incurred considerable expenses for surveys, plat plans, designs, development plans for streets and utilities and a plat of the property; and a newly elected city council refused to approve the plat and plans.
Rieke purchased property for low density residential use with 21 parcels suitable for duplexes. Between 1975 and 1978, the company constructed 45 single-family residences but never obtained a building permit for a duplex. The City Commission denied downzoning in one instance when driveway requirements in the construction of duplexes could not be met. On another occasion, Rieke was granted a five percent variance for duplex construction, a plan which was apparently abandoned in favor of the abortive subsidized housing plan. None of these actions are sufficient to estop the City from rezoning the tract.
Rieke’s cross-appeal raises the issue of whether the district court erred in finding the evidence supported a reduction in plaintiffs damages from $33,000 to $20,500. As we have concluded there was no breach of contract by the City, this issue is moot.
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Parks, J.:
Plaintiffs Elmer D. Chilson and his bank, Merchants National Bank of Topeka, Kansas (Merchants) brought this action against the Capital Bank of Miami, Florida (Capital), which accepted an unendorsed check drawn by Chilson. The trial court granted summary judgment to Merchants based upon a claim for breach of express written warranty. Capital appeals.
On June 2,1977, Elmer D. Chilson wrote a $4,550 check on his Merchants account paid to the order of Murías Brothers Commodities, Inc. for the purchase of gold futures. The check was presented to Capital for collection by Caribbean Bronze, Inc., a customer of Capital. Although the check was not endorsed by the payee Murías or anyone else, Capital stamped the back of the check “P.E.G. Capital Bank of Miami N.A.” and sent the check through the banking channels for payment by Merchants. The abbreviation “P.E.G.” stands for “prior endorsements guaranteed” in banking parlance. On June 13, Merchants paid the check and charged Chilson’s account. On September 1, 1978, Chilson brought the missing endorsement to Merchants’ attention and demanded that his account be recredited. Merchants asked Capital to obtain the missing endorsement but none has been provided. On May 20, 1982, Merchants paid Chilson $4,550.
Merchants filed this action in Chilson’s and its own name on the grounds of its subrogated claim, charging Capital with breach of the implied warranties of title and presentment (K.S.A. 84-4-207). Capital filed a motion to dismiss claiming in part that the three-year statute of limitations on implied contracts or liabilities imposed by statute had expired. K.S.A. 60-512. The trial court agreed that an action based on the warranties implied by the U.C.C. banking provisions (K.S.A. 84-4-207) was controlled by K.S.A. 60-512 and that the time had run on such an action. However, the court held that the “P.E.G.” stamp on the check was an express warranty and was actionable as a breach of a written contract. Applying the five-year statute of limitations, appropriate for such an action (K.S.A. 60-511), the trial court denied Capital’s motion to dismiss. Defendant appeals the subsequent decision of the court granting summary judgment to plaintiffs.
The relationship between banks involved in the deposit and collection of bank checks is generally governed by the U.C.C. K.S.A. 84-4-207 establishes a chain of warranties between the parties involved in any normal check transaction which may be enforced in a breach of implied warranty action. However, plaintiffs’ lawsuit was filed beyond the time permitted to enforce an implied warranty and must rest on the strength of the warranty stated by the P.E.G. stamp independent of the rights ordinarily enforceable under the U.C.C. Therefore, we must determine whether this stamp constituted a sufficient contract in writing to fall within the five-year period of limitations provided by K.S.A. 60-511.
“The general rule is that a written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing. A contract which is partly in writing and partly oral is in legal effect an oral contract so far as the statute of limitations may be concerned. The writing necessary to have the additional protection of the five-year statute must be full and complete in itself so as not to require proof of extrinsic facts to establish all essential contractual terms. Fey v. Loose-Wiles Biscuit Co., 147 Kan. 31, 75 P.2d 810 (1938); Annot., 3 A.L.R.2d 809, 813 (1949); 51 Am. Jur. 2d, Limitation of Actions § 94, p. 668; 53 C.J.S., Limitations of Actions § 60, p. 1018.
“The writing need not, however, be signed by all parties, and where a writing containing all the essential terms of a contract is executed by the party to be charged and the contract is accepted and acted on by the other party the contract is one in writing for purposes of determining which statute of limitations applies. See Fey v. Loose-Wiles Biscuit Co., 147 Kan. at 34-36; 51 Am. Jur. 2d, Limitation of Actions § 94, p. 669.” Miller v. William A. Smith Constructing Co., 226 Kan. 172, 174, 603 P.2d 602 (1979).
The check and stamp identify all of the parties to the transaction, the amount involved and the guarantee that all prior endorsements are warranted. However, there are no endorsements on the check to which the guarantee might extend. Plaintiffs correctly point out that the absence of an endorsement does not itself evidence a lack of title or nonnegotiability of a check since K.S.A. 84-4-205 permits a depositary bank to supply a missing endorsement. See also Maynard Inv. Co., Inc. v. McCann, 77 Wash. 2d 616, 465 P.2d 657 (1970) (check properly paid if depositary bank can show payee actually received proceeds). Thus, plaintiffs contend that a payor bank receiving a check stamped P.E.G. would logically believe that the depositary bank took note of the absence of any endorsement but made an affirmative assurance of its depositor’s and its own title to the check. Plaintiffs argue that despite the absence of actual endorsements on the check, the P.E.G. writing extends a warranty because absent endorsements are also guaranteed.
The difficulty with Merchants’ argument is that in order for the P.E.G. stamp to have any meaning in light of the absence of an endorsement, reference must be made to the obligations implied at law by the U.C.C. The stamp does not say that prior and missing endorsements are guaranteed and plaintiff cites no au thority from this state which would imply such a meaning to a P.E.G. stamp. To the contrary, plaintiff relies entirely on the provisions of the U.C.C. defining the warranties implied by law, to give force to the words stamped on the check as an independently enforceable contract. Such a writing is insufficient to establish all essential contract terms or qualify for application of a five-year statute of limitations.
The cases cited by plaintiff in support of its contention that K.S.A. 60-511 applies to this suit all relate to the application of the limitation period for written contracts to cases where a primary writing is enforced but additional rights are also implied by law. In Cairo Cooperative Exchange v. First Nat’l Bank of Cunningham, 228 Kan. 613, 620 P.2d 805 (1980), modified on reh. 229 Kan. 184, 624 P.2d 420 (1981), the plaintiff sought to enforce the written direction to its own bank restricting endorsement of a number of checks. The obligation of the bank to honor a customer’s restrictive endorsement is implied by law into their relationship but the plaintiff s right of action arises out of the existence of the writing itself. Similarly, in Clark Jewelers v. Satterthwaite, 8 Kan. App. 2d 569, 573, 662 P.2d 1301 (1983), the plaintiff relied on a written agreement which created a security interest as the basis for relief. While the law extended the force of this agreement to the particular defendant involved in the case, the agreement itself created the exclusive right sought to be enforced. By contrast, the plaintiff in this case had a right of action against defendant independent of the writing, based on the implied warranties of the U.C.C. The writing, at best, simply echoed the obligation already imposed by law; it did not create a means of relief.
In sum, the selection of the applicable statute of limitations should be determined by the nature of the right sought to be enforced. Clark Jewelers, 8 Kan. App. 2d at 571. The writing relied upon by plaintiff is insufficient to establish the essential terms of the warranty without reference to extrinsic facts and circumstances. Thus, it will not suffice to support this suit as one on a written contract. Miller, 226 Kan. at 174. Moreover, even if the writing could be held sufficient, it adds nothing to the definition of the parties’ rights and obligations beyond that already supplied by statute. Thus, the true nature of plaintiffs’ suit is in implied warranty subject to a three-year statute of limitations.
In passing, we note that plaintiffs assertion on appeal that Florida law controls the statute of limitation issue is without merit. The choice of law provision included in K.S.A. 84-4-102(2) relates only to the rules regarding liability in handling a negotiable item and not to the procedural restrictions on a lawsuit which vary in every state. This is borne out by the Kansas Comment which notes that the subsection “has received virtually no judicial interpretation because Article 4 has been adopted in all 50 states with litde variation." The adoption of identical Article 4 statutes would not inhibit judicial interpretation if the provision applied to matters outside of the article.
We conclude that the trial court erred in applying a five-year statute of limitations in this case. Consequently, the summary judgment in favor of plaintiff was also in error.
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Abbott, J.:
This is a child custody proceeding under the Kansas Code for Care of Children. The trial court transferred the proceeding from Kansas to Texas based upon a finding that Kansas is an inconvenient forum (K.S.A. 38-1307[e]). The natural mother appeals.
Carrie Wicks was born July 20', 1975, to Glenda and Roland Wicks. On August 18, 1977, Glenda and Roland were divorced in Wyandotte County, Kansas. Glenda was awarded custody of Carrie pursuant to the divorce decree. Following the divorce, Roland moved to Arizona and was later transferred to Texas as a member of the military services. Glenda and Carrie remained in Kansas City.
In 1981, a deprived child petition was filed pursuant to K.S.A. 38-802(g) in Wyandotte County, Kansas, alleging Carrie to be abused and without proper care, custody and support. The court adjudicated Carrie a deprived child, made her a ward of the court, and committed her to the custody of her father. Glenda was granted supervised visitation. Following a review hearing on July 22, 1982, Roland retained legal and physical custody of Carrie.
The State and the father filed motions to transfer the case from Kansas to Texas on June 24, 1983, and July 11, 1983, respectively. Glenda subsequently applied for a full review hearing for custody of Carrie. Nevertheless, the court sustained the transfer motions.
The natural mother raises three issues on appeal: (1) whether the district court had authority to transfer the custody proceeding to Texas, (2) whether the transfer was in the child’s best interest, and (3) whether the transfer was a denial of due process and equal protection under the Fourteenth Amendment to the United States Constitution and Kansas Constitution Bill of Rights, § 18.
Appellant questions the court’s authority to transfer a deprived child (now, “child in need of care”) proceeding interstate under the inconvenient forum section of the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1307. The statutory language employed in the UCCJA and the Kansas Code for Care of Children, K.S.A. 1983 Supp. 38-1501 et seq. (CCC) makes it clear that the legislature intended the UCCJA to apply to CCC proceedings. The determination of jurisdiction under the CCC is expressly made subject to the UCCJA. K.S.A. 1983 Supp. 38-1503(b). Likewise, the definitional section of the UCCJA defines a custody proceeding to include proceedings brought under the CCC where custody determination is an issue. K.S.A. 1983 Supp. 38-1302(c).
In matters of child custody, avoiding interstate jurisdictional conflicts and promoting the child’s best interests are among the stated purposes of the UCCJA. K.S.A. 38-1301(a). The UCCJA provides a uniform jurisdictional analysis for all proceedings pertaining to child custody. The CCC and other child custody proceedings do not address interstate jurisdictional problems. We hold that when child custody is an issue in a continuing case under the CCC, the UCCJA as adopted in Kansas applies.
K.S.A. 38-1307, the inconvenient forum provision of the UCCJA, is a discretionary mechanism to ensure that a custody determination is made by only one state if the jurisdictional tests of K.S.A. 1983 Supp. 38-1303 produce concurrent jurisdiction in more than one state. 9 U.L.A. 123, Child Custody Jurisdiction § 3, Commissioners’ Note (1979). K.S.A. 38-1307 authorizes a court to decline jurisdiction if it finds that it is an inconvenient forum, as follows:
“(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commended in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate such party’s consent and submission to the jurisdiction of the other forum.”
The district court has complied with this procedure.
Thus, while Kansas has jurisdiction, it is discretionary with the trial court whether it should exercise or decline jurisdiction under the inconvenient forum provision of K.S.A. 38-1307. The prime consideration in determining if a court of this state is an inconvenient forum is the best interest of the child. Larsen v. Larsen, 5 Kan. App. 2d 284, Syl. ¶ 4, 289-90, 615 P.2d 806, rev. denied 228 Kan. 807 (1980); K.S.A. 38-1307(c). The following factors under K.S.A. 38-1307(c) are taken into account:
“(1) If another state is or recently was the child’s home state;
“(2) if another state has a closer connection with the child and the child’s family or with the child and one or more of the contestants;
“(3) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state:
“(4) if the parties have agreed on another forum which is no less appropriate; and
“(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in K.S.A. 38-1301.”
The above factors favor Texas as the more appropriate forum. Since the filing of the deprived child petition, Texas has become Carrie’s home state where she lives with her father. Thus, Texas has a closer connection with Carrie and her father, although Carrie was born in Kansas and spent some early childhood years here. Carrie has been receiving treatment and counseling from psychologists in Texas. She attends school in Texas. She has not lived in Kansas since the summer of 1981. The mother and father have not agreed to a forum. Finally, the exercise of jurisdiction by a Kansas court would contravene the purpose of promoting the child’s best interests.
Under our standard of appellate review, appellant has not shown that the district court abused its discretion in declining jurisdiction. When a trial court exercises a discretionary function, that determination will be upheld on appeal absent abuse in the exercise of that power of discretion. Bills v. Murdock, 232 Kan. 237, 250, 654 P.2d 406 (1982).
Appellant’s last issue raises the constitutionality of the transfer of the custody proceeding. We acknowledge that a parent’s right of custody and control of his children is a liberty interest protected by the due process clause of the Fourteenth Amendment. In re Cooper, 230 Kan. 57, 64, 631 P.2d 632 (1981); In re Brehm, 3 Kan. App. 2d 325, 326, 594 P.2d 269 (1979). However, the record does not reflect that appellant raised the constitutionality of the transfer during oral argument of the transfer motion. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. In re Zappa, 6 Kan. App. 2d 633, 636, 631 P.2d 1245 (1981).
In any event, due process mandates that the mother be given notice and an opportunity to be heard. Beebe v. Chavez, 226 Kan. 591, 599, 602 P.2d 1279 (1979). The mother was given the full opportunity to contest the transfer motions, which she, in fact, took full advantage of. The mother, in essence, complains of the court’s decision granting the transfer. However, contrary to her assertion that she has been deprived of a review hearing, the hearing will take place. The location of the hearing has been changed from Kansas to Texas. This does not constitute denial of an opportunity to be heard. The mother’s own subsequent conduct will determine if she presents evidence and is heard on the issue of custody.
The mother also suggests that the transfer imposes a financial hardship on her by requiring her to travel to Texas to present her case for custody. The financial burden of litigating in Texas does not constitute a denial of due process. Although the parties’ convenience and relative hardship in appearing in a nonlocal forum may be pertinent considerations in declining jurisdiction under the inconvenient forum provision, the predominant consideration in child custody disputes is the best interest of the child. Burnworth v. Hughes, 234 Kan. 69, 74, 670 P.2d 917 (1983). Secondly, the UCCJA provides that one party’s travel expense and other costs be paid by the other party in certain circumstances. K.S.A. 38-1307(g). Due process is not lacking merely because a particular procedure imposes a hardship on a party. Ownbey v. Morgan, 256 U.S. 94, 65 L.Ed. 837, 41 S.Ct. 33 (1921).
The mother also complains she has been denied equal protection. She has not demonstrated that she has been treated any differently than other parents involved in custody disputes. Nor has she shown that the inconvenient forum provision of the UCCJA was applied in an arbitrary or capricious manner. Wesley Medical Center v. McCain, 226 Kan. 263, 266, 597 P.2d 1088 (1979). The statute bears a rational relationship to the State’s interest both in preventing jurisdictional competition in matters of child custody and in protecting the child’s best interest.
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Lorentz, J.:
Appellant Jack Ellis appeals from the trial court’s denial of a motion to modify judgment. The facts are not in issue and are briefly summarized here. .
Ellis was a pedestrian who received severe injuries when struck by an automobile driven by Horace Whittaker. State Farm Mutual Automobile Insurance Company provided insurance for both Ellis and Whittaker. Suit was filed and the full amount of Whittaker’s liability coverage of $25,000 was paid into Thomas County District Court. Ellis was paid $61,251.21 in personal injury protection (PIP) benefits on his own policy.
State Farm intervened and asserted a statutory lien for its PIP benefits of $61,151.21 (pursuant to K.S.A. 40-3113a[b]) against any future recovery by Ellis.
Subsequently, the case was settled by an agreed entry of judgment in favor of Ellis and against Whittaker for $175,000. Following entry of judgment, State Farm filed its motion asking that the $25,000 it had previously paid into court be paid over to it in partial satisfaction of its PIP lien. The trial court found that State Farm was entitled to the full $25,000 less reasonable attorney fees to Ellis’ attorney. The final journal entry was filed on August 23, 1983, with no appeal being taken.
On January 13,1984, the Kansas Supreme Court handed down its decision in State Farm Mut. Auto. Ins. Co. v. Kroeker, 234 Kan. 636, Syl. ¶ 5, 676 P.2d 66 (1984), which held:
“If the injured insured does not settle his total claim or release the tortfeasor from all further liability, and if the actual damages suffered by the insured are shown to be in excess of the PIP benefits paid by the insurer so that the insured will not receive a double recovery for the same elements of damages, any payments made on behalf of the tortfeasor on a settlement or on a judgment are not ‘duplicative’ of PIP benefits within the meaning of K.S.A. 40-3113a. In such a case, the PIP insurer is not entitled to be reimbursed for prior PIP payments out of the insured’s recovery.”
Following the Kroeker decision, Ellis, on June 29, 1984, filed his motion pursuant to K.S.A. 60-260(b) to modify the judgment entered August 23, 1983, contending that Kroeker required that judgment to be reversed. The trial court denied Ellis’ motion and Ellis appeals.
The issue raised by Ellis on appeal is whether the trial court abused its discretion in not granting his motion to modify. Specifically, Ellis makes two arguments:
1. The trial court erroneously ruled that relief under K.S.A. 60-260(b)(6) could not be granted after the appeal time on the base judgment had expired.
2. The facts involved in the distribution of the insurance proceeds are so inequitable as to qualify for relief under K.S.A. 60-260(b)(6).
An appeal from an order denying a motion under K.S.A. 60-260(b) brings up for review only the order of denial itself and not the underlying judgment. Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977); Thompson v. James, 3 Kan. App. 2d 499, 501, 597 P.2d 259, rev. denied 226 Kan. 793 (1979). The granting of relief under K.S.A. 60-260(b) rests within the sound discretion of the trial court, and on appeal this court’s scope of review is limited to determining whether the trial court’s decision constituted an abuse of discretion. Mid Kansas Fed. Savings & Loan Ass’n v. Burke, 233 Kan. 796, 798, 666 P.2d 203 (1983); Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978).
Ellis’ first contention is without foundation. The journal entry denying his motion for modification makes reference to the fact that he was relying on a subsequent change in the law and then notes that K.S.A. 60-260(b) cannot be used as a substitute for failure to appeal. Nothing in the journal entry suggests that the motion to modify should have been filed within thirty days. The motion to modify was denied not because it was not timely filed, but because the trial court ruled it was not an appropriate remedy for failure to appeal, and, further, that it failed to show mistake, inadvertence, surprise, excusable neglect, or any other reason justifying relief from the operation of the judgment.
That brings us to Ellis’ second contention and the real issue, i.e., is the failure of a party to timely appeal a trial court’s decision, when subsequent events ixrdicate that an appeal would have benefited that party, a proper basis for relief under K.S.A. 60-260(b)(6)?
In the case of Neagle v. Brooks, 203 Kan. 323, 327, 454 P.2d 544 (1969), the Kansas Supreme Court noted that Kansas has no precedent of its own for K.S.A. 60-260(h)(6) and pointed out that “we may look to federal authority for its construction and application since it was lifted from rule 60(b) of the Federal Rules of Civil Procedure.”
The Court goes on in Neagle to quote from 3 Barron and Holtzoff, Federal Practice and Procedure: Civil §§ 1322, 1329 (Rules ed. 1958), the following:
“The rule [rule 60(b)] was not intended as an alternative method of appellate review . . . except where compelling considerations of justice require that course. . . . The rule is not intended to provide a procedure' by which to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal. . . .
“This broad language [of rule 60(b)(6) authorizing relief for ‘any other reason justifying relief from the operation of the judgment’] gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to relieve u party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. . . (Emphasis added.)
Further, the Neagle case goes on to quote at page 328, “ ‘[t]he rule [60(b)] is neither a substitute for appeal nor a conduit through which to channel collateral attack upon a judgment of a court of competent jurisdiction,’ ” citing Consolidated Gas & Equipment Co. of America v. Carver, 257 F.2d 111, 114 (10th Cir. 1958).
In looking at 11 Wright and Miller, Federal Practice and Procedure: Civil § 2858 (1973), we find “[t]he easiest group of cases is those in which the error involved a fundamental misconception of law and the motion was not made until after the time for appeal had run. Here, with one exception that may be regarded as a fluke, relief is denied.”
In this case, Ellis chose not to pursue an appeal when the trial judge ruled that the $25,000 in insurance proceeds should be returned to State Farm in partial satisfaction of its PIP lien. K.S.A. 60-260(b)(6) cannot relieve him of that choice unless compelling considerations of justice so require. Ellis argues that Kroeker, 234 Kan. 636, provides the compelling circumstance.
While the facts of Kroeker are similar to the facts here, the foregoing review of case law interpreting Rule 60(b) suggests that Ellis’ argument lacks merit. The same question was raised in the case of Ackermann v. United States, 340 U.S. 193, 95 L.Ed. 207, 71 S.Ct. 209 (1950). In that case, involving denaturalization proceedings, certain orders admitting Ackermann and his wife’s brother, Keilbar, to citizenship were overturned. Ackermann did not appeal, but Keilbar did with success. Ackermann then filed a Rule 60(b) motion to have the judgment set aside. The court denied the motion stating:
“His [Ackermann’s] choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.” 340 U.S. at 198.
See also Parks v. U. S. Life & Credit Corp., 677 F.2d 838 (11th Cir. 1982); Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908, 912 (3rd Cir. 1977); Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir. 1958).
The trial judge in the instant case stated the proposition, in the journal entry, as follows:
“Even if the Kroeker decision is now the present interpretation of the pertinent statute (K.S.A. 40-3113a), trial courts should not be expected to second guess the future interpretation of the law.”
The trial court relied on sound reasoning in making its decision and we hold that it did not abuse its discretion.
Since Kroeker, 234 Kan. 636, did not overrule any previous cases, and since review in this case is limited to determining whether the trial court abused its discretion in denying Ellis’ motion under K.S.A. 60-260(b), the decision below should stand.
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Bullock, J.:
After an evidentiary hearing under K.S.A. 60-1610(a)(4)(D), the trial court found probable cause existed to believe Edward Tindell was unfit as a parent, and that it was in the best interests of his two daughters to grant temporary custody to Don and Louise Sedlacek (intervenors in this action), the parents of Edward’s deceased wife. The trial court then referred the case to the district attorney for proceedings pursuant to K.S.A. 1983 Supp. 38-1531 et seq., again as required by K.S.A. 60-1610(a)(4)(D). Edward appeals from the order of temporary custody. Three issues require discussion.
I. The first issue is whether this appeal is premature, inasmuch as the order appealed from was temporary in nature. K.S.A. 60-1610(a)(4)(D) provides that temporary custody orders in cases such as this are to be entered in lieu of orders under Chapter 38, the Kansas Code for Care of Children. Once the temporary custody is ordered, the district attorney is instructed to file a petition under K.S.A. 1983 Supp. 38-1531. Thereafter, all proceedings are pursuant to- Chapter 38. K.S.A. 1983 Supp. 38-1591(a) provides that any interested party may appeal any order of temporary custody in any proceeding pursuant to that code. In our view, the posture of this action is now one under Chapter 38 and orders under 60-1610(a)(4)(D), like their Chapter 38 counterparts, are appealable.
II. The second issue is Edward’s contention that the trial court erred in finding him unfit as a parent. In this connection, Edward seems to make two arguments. First, the trial court erroneously applied a “best interests of the child test,” not a “fitness test,” in granting custody to the grandparents; and second, the finding of unfitness, if one was made, was not supported by substantial competent evidence.
Under K.S.A. 60-1610(a)(4)(D) the court may award temporary custody to nonparents if:
1. (a) The court finds probable cause to believe that the child is in need of care as defined in sections (a)(1), (2) or (3) of K.S.A. 38-1502; or
(b) there is probable cause to believe that neither parent (or one, if there be but one, as here) is fit to have custody; and
2. it is in the best interests of the child to award temporary custody to the nonparent.
In the case at bar, the trial court commented, prior to ruling,
“The two issues — the principal issue is fitness. The second area issue is, what’s in the best interest of the children in the event the Court would determine that the father is not fit.”
In our view, the record thus clearly shows that the trial court did not use the best interests of the child standard alone but correctly first judged whether or not there was probable cause to believe Edward was unfit as a parent and then determined the best interests of the children. See Sheppard v. Sheppard, 230 Kan. 146, Syl. ¶ 3, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982).
III. Edward’s final contention is that the trial court’s probable cause finding of unfitness is not supported by substantial competent evidence. Before reviewing the evidence, it is helpful to examine our controlling definition of “unfitness” and relevant cases concerning the quantum of evidence necessary to support findings of probable cause.
In establishing a working definition of “unfit,” the Supreme Court has stated:
“ ‘While the standard of fitness required of parents is difficult to specify without being somewhat ambiguous, conduct which makes a parent unfit may be defined within limits. There is no statutory definition of the word “unfit.” It therefore must be given its ordinary significance, having due regard to the context. In general, the word means unsuitable, incompetent, or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.’ ” Sheppard v. Sheppard, 230 Kan. at 153, quoting In re Vallimont, 182 Kan. 334, 340, 321 P.2d 190 (1958).
As previously observed, to award temporary custody of a child to a nonparent under K.S.A. 60-1610(a)(4)(D), trial courts are not asked to find that the parent is unfit but only that there is probable cause to believe the parent unfit. A finding of probable cause requires less evidence for its support than does a finding of unfitness. Cf. State v. Hays, 221 Kan. 126, Syl. ¶ 1, 557 P.2d 1275 (1976). This rule presents no threat to nonprevailing parties inasmuch as a fullblown trial on the question of fitness awaits them under Chapter 38. Accordingly, we hold that probable cause exists when the facts and circumstances before the trial court are sufficient to warrant a person of reasonable caution to believe that a parent is unfit. Cf. State v. Hays, 221 Kan. 126, Syl. ¶ 1.
In our view, the record, in the case at bar, contains ample evidence from which a reasonably cautious person could believe Edward is unfit as a parent.
Edward and Donita Tindell were divorced on April 24, 1980. Edward initially received custody of the couple’s daughters but on November 21, 1980, custody was changed to Donita. Donita and the girls lived in Nebraska until October, 1982, when they returned to live with Donita’s parents in Frankfort, Kansas. Edward visited the children at most three times in the past three years. During the two years Edward lived in Texas, his only contact was a Christmas card and gift, a few early letters and a couple of phone calls. About a week after Edward moved back to Kansas in March of 1983, he did arrange to see his daughters on April 23,1983. Donita died in an automobile accident on May 25, 1983.
From 1980 to the time of hearing Edward admitted he had not paid “a penny” in child support. In fact, he stated that even though he was making $1,000.00 a month, he couldn’t afford to pay the court-ordered child support or send any money for the children although during this same time, he had provided support and a home for his live-in girlfriend (who was married at the time to someone else) and her four children.
The record also reveals Edward is somewhat of a nomad. In the year before the hearing Edward’s other daughter Sarah, who lived with him, attended three or four different schools.
Edward is not sure how he would support his children if he got them. He is on unemployment; he has not checked to see what other SRS benefits he will qualify for if he gets the children and he is not sure how long his unemployment will last. He hasn’t made any plans for the children “as he hasn’t been given their custody yet.” Interestingly, he testified that if he had had custody of his daughters he would have lived his life differently; however, he did not seem concerned about how his way of life has affected Sarah, the daughter already in his custody.
Edward testified that he disciplines his children by spanking them with his hand, but stated “when they get a little older you have to use more than just a hand at times.” He admitted he had left bruises on his older daughter Sarah. The testimony of Edward’s girlfriend also indicated that Edward’s notions of disci pline may get out of hand. She stated that: “Mr. Tindell has never beat me to the point ... I had physical bruises all over my entire body, at all. He has never beat even my children where they had bruises all over their bodies.”
Two witnesses also testified that they had heard from Edward’s girlfriend that Edward.had molested her oldest daughter while the “family” lived in Texas. This same girlfriend had also described Edward’s, relationship with his own sister as that of a “husband and wife,” a fact confirmed by the sister’s husband, according to the girlfriend.
Consistent with his nomadic history, Edward has lived in four or five different places in the last year. He and his girlfriend have split up two or three times in the two years they have lived together. About three hours after Donita’s funeral, Edward told his six-year-old daughter Donnell that she was going to live with him now. The child had not seen her father but once in two and a half years at that time. Surprisingly, the record indicates that Edward believed he handled the matter in a compassionate manner.
Philip Towle, a licensed clinical social worker, testified the girls need therapy and a strong family unit to overcome the trauma of their mother’s death. In our view the record provides ample support for the trial court’s probable cause belief that Edward was not fit to supply these needs and that it was in the best interests of the children to remain with their grandparents temporarily.
Accordingly, under any standard of review, and certainly under that standard applicable to review of probable cause findings, we conclude the record before us amply reveals substantial competent evidence to support the findings below.
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Briscoe, J.:
Defendant, Murt Hanks, III, appeals from a jury conviction of theft. He was sentenced as a felon, having two prior theft convictions within five years immediately preceding the commission of the instant offense. K.S.A. 1984 Supp. 21-3701.
The defendant was charged with the theft of items valued at less than $150 from a Safeway store in Wichita, Kansas, on July 14, 1984. Included in the complaint/information was the statement that defendant had two theft convictions in the preceding five years: one on July 11, 1983, in the Wichita Municipal Court, and one on June 14, 1984, in Sedgwick County District Court. Defendant was charged with theft, a class E felony pursuant to K.S.A. 1984 Supp. 21-3701.
This appeal raises issues of first impression regarding the interpretation of the new theft statute, K.S.A. 1984 Supp. 21-3701, effective May 17, 1984. The statute provides:
“Theft is any of the following acts clone with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
“(a) Obtaining or exerting unauthorized control over property; or
“(b) Obtaining by deception control over property; or
“(c) Obtaining by threat control over property; or
“(d) Obtaining control over stolen property knowing the property to have been stolen by another.
“Theft of property of the value of $150 or more is a class E felony. Theft of property of the value of less than $150 is a class A misdemeanor, except that theft of property of the value of less than $150 is a class E felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times.
“Nothing herein shall prohibit the removal in a lawful manner, by towing or otherwise, of personal property unlawfully placed or left upon real property.
“Conviction of a violation of a municipal ordinance prohibiting acts which constitute theft as defined by this section shall be considered a conviction of theft for the purpose of determining the number of prior convictions and the classification of the crime under this section.” (Emphasis supplied.)
Defendant contends the proof of two prior theft convictions is an element of felony theft under K.S.A. 1984 Supp. 21-3701. Defendant further contends the trial court erred in failing to instruct the jury on this element as well as the lesser included offense. He argues “theft” is the lesser included offense of “theft after having been convicted of theft two or more times within the preceding five years.”
In support of his argument for the inclusion of proof of prior convictions as an element of K.S.A. 1984 Supp. 21-3701, defendant notes that K.S.A. 1984 Supp. 22-3201(2) requires that a complaint contain “a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.” The defendant argues that since two prior theft convictions were listed in his complaint/information, proof of these convictions is an element of the instant offense. The State refutes this argument by citation to State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976). In Loudermilk, the Kansas Supreme Court, in interpreting K.S.A. 1975 Supp. 65-4127a, concluded that proof of prior convictions is not an element of the offense, but rather is appropriate only at the time of sentencing to enhance the classification of the crime from mis demeanor to felony. We find the rationale of Loudermilk applicable to the case at bar.
In Loudermilk, the defendant challenged his class B felony conviction under K.S.A. 1975 Supp. 65-4127a. In pertinent part, the statute provided:
“[I]t shall be unlawful for any person to . . . possess . . . any opiates ... or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon conviction for the second offense, such person shall be guilty of a class B felony . . . .”
The defendant in Loudermilk argued that reference in the information to his prior conviction was wholly unnecessary since a prior conviction was not an element of a class B felony. Although the court ultimately agreed with the defendant’s “element” argument, it disagreed with defendant’s contention that the information was defective. The court concluded the information should inform the defendant of what specific offense is charged, including the class of felony, to enable the defendant to prepare a defense.
Applying the court’s rationale to the case at hand, the fact that defendant’s two prior theft convictions were included in the complaint/information does not make proof of two prior convictions an element of the offense. The complaint/information properly notified defendant of the seriousness of the offense with which he was charged and provided him with details which might have assisted him in his defense.
In ruling that a prior conviction under K.S.A. 1975 Supp. 65-4127a was not an element of a class B felony under the same statute, the Loudermilk. court noted a “distinction between crimes in which a prior conviction of a felony is a necessary element, and crimes in which a prior conviction of the same crime is considered in establishing the class of felony or the penalty to be imposed.” 221 Kan. at 159. After reviewing several criminal statutes, the court concluded that a prior conviction is a necessary element of a crime when it is included in the statutory definition of the crime rather than in the penalty section of the statute.
Here, K.S.A. 1984 Supp. 21-3701 defines theft as “any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: (a) Obtaining or exerting unauthorized control over prop erty . In a separate paragraph, the classification requirements for felony and misdemeanor theft are set forth. It is within this separate paragraph that the prior conviction language appears. Applying the Loudermilk analysis, it is clear that proof of two prior theft convictions is not an element of class E felony theft defined by K.S.A. 1984 Supp. 21-3701, but rather serves only to classify the crime at sentencing and thus enhance the punishment.
We do note that the theft statute at issue differs slightly from any of the statutes discussed in Loudermilk. In a theft prosecution, the value of the property taken is an element of the crime which the jury must determine; however, that element is found in the classification section of the statute (together with the prior conviction language) rather than in the definition portion of the statute. K.S.A. 1984 Supp. 21-3701; PIK Crim. 2d 59.01. We do not believe, however, that this distinction affects our reliance upon Loudermilk.
Here, when the trial court instructed the jury on the elements of K.S.A. 1984 Supp. 21-3701, it correctly refused to require proof of two prior theft convictions as an element of the offense. The case was submitted to the jury under the following pertinent instructions:
“The defendant is charged with the crime of theft. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Safeway, Incorporated, was the owner of the property;
“2. That the defendant obtained unauthorized control over the property;
“3. That the defendant intended to deprive Safeway, Incorporated, permanently of the use and benefit of the property; and
“4. That this act occurred on or about the 14th day of July, 1984, in Sedgwick County, Kansas.” (Instruction No. 2.)
“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. This evidence was introduced and affects a legal matter not for your consideration. Therefore, you are not to consider such evidence for any purpose in arriving at your verdict.” (Instruction No. 5.)
Although the element instruction given (instruction No. 2) did not require a finding of value, that omission is not necessarily fatal since there was substantial competent evidence here to support a misdemeanor theft conviction. State v. Piland, 217 Kan. 689, 693, 539 P.2d 666 (1975). In addition, given the evidence presented and the fact that the jury was instructed only on theft, the trial court did not err in failing to instruct on a lesser included offense.
Since proof of two prior theft convictions is not an element of K.S.A. 1984 Supp. 21-3701, evidence of the defendant’s prior convictions should not have been presented to the jury.
“Prior convictions under this statute are not elements of the offense charged, and are pertinent only to the sentence which shall be rendered in the event of a conviction. The State is not obliged to prove the prior conviction during the presentation of its evidence before the jury; evidence of the prior conviction should be presented to the court after conviction in the same manner as such evidence is presented when the habitual criminal act, K.S.A. 21-4504, is invoked.” Loudermilk, 221 Kan. at 161.
Here, the defendant did not object to the admission of the evidence on the basis that it was improper prior crimes evidence. In fact, he has consistently argued that evidence of prior convictions was an element of the crime charged. Pursuant to the contemporaneous objection rule, K.S.A. 60-404, the court did not err in admitting the prior crimes evidence at trial. Accord Loudermilk, 221 Kan. at 161. In addition, the general rule is that the trial court’s admonition (here achieved through an instruction) that the jury disregard the evidence normally cures any prejudice resulting from an improper admission. State v. Croft, 6 Kan. App. 2d 821, 823, 635 P.2d 972 (1981).
The defendant next contends that the municipal court theft conviction is void because the complaint/notice to appear was defective. The municipal court conviction in question was one of defendant’s two prior theft convictions. Having concluded that proof of two prior theft convictions is not an element of K.S.A. 1984 Supp. 21-3701, we address this issue only because its resolution may entitle defendant to resentencing as a misdemeanant.
The defendant argues that the complaint/notice to appear failed to allege the essential elements of the crime. Although this issue is raised for the first time on appeal, we may properly consider it because lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding. State v. Shofler, 9 Kan. App. 2d 696, 698, 687 P.2d 29 (1984).
K.S.A. 1984 Supp. 12-4113(g) defines a municipal court complaint as “a sworn written statement, or a written statement by a law enforcement officer, of the essential facts constituting a violation of an ordinance.” A complaint must be stated with enough detail to inform the defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 223, 579 P.2d 712 (1978), quoting State v. Williams, 196 Kan. 274, 285, 411 P.2d 591 (1966).
Here, the municipal court complaint/notice to appear is sufficient to give the defendant notice of the crime charged and to provide the municipal court with jurisdiction. The information on the document includes the time and location of the offense, together with an allegation that the defendant unlawfully took $24.65 worth of perishable goods from Bleier’s, contrary to Wichita Ordinance 5.42.010(a), “petit larceny shoplift.” The defendant was adequately informed of the facts constituting the crime of which he was charged. The municipal court conviction is valid.
The defendant next contends the trial court erred in taking judicial notice of court records which were offered to prove defendant’s prior theft conviction in Sedgwick County District Court. Defendant argues judicial notice was improper here because the information “noticed” was an element of the crime. This argument is without merit.
Even if proof of two prior theft convictions was an element of a theft charge under K.S.A. 1984 Supp. 21-3701, which we have held it is not, an element of a crime may be judicially noticed. Trial courts have been routinely upheld in their taking judicial notice of the jurisdictional element of the crime charged, such as taking judicial notice that a city is located in a county within the court’s jurisdiction. State v. Deutscher, 225 Kan. 265, 272, 589 P.2d 620 (1979); State v. Wilson & Wentworth, 221 Kan. 359, 361-62, 559 P.2d 374 (1977).
Finally, the defendant contends the trial court abused its discretion in allowing the late endorsement of the municipal court clerk as a witness.
K.S.A. 1984 Supp. 22-3201(6) provides:
“The prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. The prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.”
The purpose of the endorsement requirement 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. State v. Costa, 228 Kan. 308, 315, 613 P.2d 1359 (1980); State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980).
Whether late endorsement of additional witnesses will be allowed is a matter left to the trial court’s discretion, and the exercise of that discretion will not be disturbed on appeal absent a showing of an abuse of discretion. Costa, 228 Kan. at 315. To sustain a reversal of the trial court, the defendant must establish that his rights were unfairly prejudiced by the endorsement of. additional witnesses. State v. Kendig, 233 Kan. 890, 891, 666 P.2d 684 (1983); State v. Thompson, 232 Kan. 364, 367, 654 P.2d 453 (1982).
Here, the testimony of the clerk dealt entirely with defendant’s prior municipal court conviction. Initially, both the parties and the trial court believed that proof of prior convictions was necessary to support a theft conviction under K.S.A. 1984 Supp. 21-3701. Prior to the court’s instructing the jury, however, both the State and the trial court had concluded that “priors” were to be considered only by the court at sentencing, and the jury was instructed to disregard evidence of defendant’s prior convictions. Consequently, the trial court did not abuse its discretion in allowing the late endorsement of the clerk because the defendant suffered no prejudice as a result of the clerk’s testimony.
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Harman, C.J. Retired:
This is an appeal from an order denying a petition for writ of habeas corpus in an extradition proceeding.
Appellant Lilburn Breckenridge was arrested on June 2, 1983, in California and held on fugitive warrants stemming from a murder complaint filed in Coffey County, Kansas, in May 1978. After extradition to Kansas, the murder charges in Kansas were dropped when a fugitive complaint was filed by Oklahoma on the same murder charges. At the end of ninety days, Oklahoma had made no request for extradition upon the governor of Kansas and Breckenridge was released pursuant to K.S.A. 22-2717.
Subsequently, a governor’s warrant was issued and Breckenridge submitted himself to the Shawnee County authorities for arrest on December 6,1983. That day, he was brought before the district court, informed of the charges of the State of Oklahoma pursuant to K.S.A. 22-2710 and given ten days in which to file a petition for writ of habeas corpus. Additionally, on December 6, the Shawnee County sheriffs office dispatched a teletype to notify Tulsa County, Oklahoma, authorities of the apprehension.
According to the testimony of Gene Olander, Shawnee County district attorney, prior to Breckenridge’s surrender on the governor’s warrant, his attorney, Charles Sauer, approached the D.A.’s office and indicated his desire to surrender the appellant specifically to Shawnee County. The D.A. and Sauer agreed that Breckenridge would be surrendered to Shawnee County and that the D.A. would check out two evidentiary matters for Sauer, then- Breckenridge would voluntarily return to Oklahoma.
Appellant filed no action within the ten days granted him by the court to file his petition for habeas corpus. Fifty-five days passed without any request or demand by an agent of the State of Oklahoma. Officer Burghart, in charge of fugitive warrants for the Shawnee County sheriffs department, testified that as a general practice he would send the authorities of the demanding state a second teletype advising them that the subject was available for release to them, and that in his 12 years in the fugitive unit no officer from another state has ever arrived to transport a fugitive prior to this second communication. He further testified that a second teletype had not been sent because Gene Olander had advised him in three separate conversations that Breckenridge would not be available to be released until he received the information he had agreed to give Sauer.
Appellant filed a petition for writ of habeas corpus January 30, 1984, contending his restraint was illegal under 18 U.S.C. § 3182 (1982). The State failed to file an answer to the petition and at trial asserted that the facts alleged in the petition were not in dispute but that there were questions open as to whether 18 U.S.C. § 3182 required the release of the petitioner.
The court heard evidence and found that Breckenridge had been held in Kansas for more than 30 days as an accommodation to his counsel, and that release under 18 U.S.C. § 3182 was not mandatory and he was not released. Breckenridge appeals from this decision.
Proceedings for the interstate extradition of prisoners are controlled by the federal Constitution and federal law. Sanders v. Conine, 506 F.2d 530, 532 (10th Cir. 1974); Hill v. Roberts, 359 So. 2d 911, 912 (Fla. Dist. Ct. App. 1978); People ex rel. Dimas v. Shimp, 83 Ill. App. 3d 150, 403 N.E.2d 750 (1980); Prettyman v. Karnopp, 192 Neb. 451, 455, 222 N.W.2d 362 (1974). Section two of Article IV of the United States Constitution provides, in part:
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”
The controlling federal law in this case is 18 U.S.C. § 3182 which provides:
“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.”
The dispute in this case centers around an interpretation of the final sentence of that section which allows for discharge of the prisoner if an agent of the demanding state fails to appear to assume custody for the demanding jurisdiction.
Because of the nature of this appeal, the ordinary standards of review concerning habeas corpus actions in extradition are inappropriate. Generally a district court’s review powers are limited:
“Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Michigan v. Doran, 439 U.S. 282, 289, 58 L.Ed.2d 521, 99 S.Ct. 530 (1978).
See also Pacileo v. Walker, 446 U.S. 1307, 1309, 64 L.Ed.2d 221, 100 S.Ct. 1633 (1980), and Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 570, 598 P.2d 559 (1979). How ever, here the petitioner did not attack the validity of the extradition warrant, but instead challenges the procedural compliance with the federal law by the asylum and demanding states in extraditing him.
Extradition was intended to provide a summary and mandatory executive proceeding to facilitate the prompt return of a fugitive from justice upon a state’s demand for him. Pacileo, 446 U.S. at 1309. “Since Federal legislation in the field is not comprehensive, States are free to establish ancillary proceedings consistent with the Federal scheme,” but they “cannot impose more stringent standards or refuse a demand for extradition on the basis of requirements not articulated by Federal law.” Shimp, 83 Ill. App. 3d at 154. Federal extradition statutes have not been construed narrowly and technically, but liberally, to effect their important purpose. Biddinger v. Commissioner of Police, 245 U.S. 128, 62 L.Ed. 193, 38 S.Ct. 41 (1917); State v. Paskowski, 647 S.W.2d 238 (Tenn. Crim. App. 1983).
Here, the trial court determined that the petitioner was held in Kansas for more than 30 days as an accommodation to his counsel and that release was therefore not mandatory under 18 U.S.C. § 3182. The petitioner argues that the court erred in making this finding in light of the following stipulation:
“It is stipulated that Mr. Sauer understood that if a writ was not filed by December I6th, his client would be returned to Oklahoma.”
At the outset of the hearing, Sauer indicated that no evidentiary hearing was necessary; then he changed his mind but offered no testimony on behalf of appellant.
The district attorney testified that Sauer wanted his client to remain in the Shawnee County jail until such time as Sauer could do two things: talk to an FBI agent in California and learn the brand and caliber of shotgun shells used in the homicide involved. He asked the district attorney to help him find the information and the latter reluctantly agreed to do so. He did take steps through the KBI and did give some information to Sauer but was never able to satisfy him. Sauer would always insist there was more. Apparently the California FBI agent refused to talk to him. The D.A. was anxious to stop the expense of holding Breckenridge in jail, but also wanted to honor his agreement.
The matter of the stipulation arose only after an out-of-court consultation between counsel for both sides and after Sauer declined to take the stand. The stipulation does not in any wise nullify the clear-cut testimony of the D.A. which was sufficient to support the court’s finding that Breckenridge was held in Kansas as an accommodation to his counsel.
The petitioner had clearly been held in Kansas for 55 days at the time this habeas action was filed. The federal statute clearly contemplates transportation of the fugitive to the demanding state within 30 days, but it is not clear that the statute requires discharge of a prisoner if the transportation does not occur within the thirty-day period. The statute itself provides that the prisoner “may be discharged.” [Emphasis added.] Most courts have given a permissive interpretation to the word “may.” State v. Paskowski, 647 S.W.2d at 240; People v. Superior Court (Lopez), 130 Cal. App. 3d 776, 786, 182 Cal. Rptr. 132 (1982); Prettyman v. Karnopp, 192 Neb. at 455-56; In re Application of Dunster, 131 N.J. Super. 22, 28, 328 A.2d 238 (1974); McEwen v. State, 224 So. 2d 206, 207 (Miss. 1969); Foley v. State, 32 N.J. Super. 154, 161, 108 A.2d 24 (1954).
The trial court did not err or abuse its discretion in finding that there was an agreement and that the release of Breckenridge was not mandatory. The State was not required to enter into the agreement but it did and it tried to honor the agreement. The thirty-day period was tolled by the agreement and release was not mandatory under § 3182.
The judgment is affirmed. | [
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Foth, C.J.:
DeLoy Rogge, Administrator CTA, appeals from several rulings regarding Gennade V. Engels’ estate. They involve attorney fees for the efforts of appellee Allen E. Ehlebracht to probate a later will of the decedent and Ehlebracht’s conduct as executor and special administrator.
The decedent, Gennade Engels, learned that she had Lou Gehrig’s disease during the first months of 1980. Acknowledging her mortality, Gennade executed a will on April 23, 1980. She had apparently drafted or executed a number of wills prior to 1980, but these wills have not been found. The April will left her entire estate to her seven children; in the will, Gennade stated her intent was to treat her children as equally as possible. During the preparation and execution of this will, Gennade did not express dissatisfaction with any of her children.
As her disease progressed, Gennade’s ability to express herself verbally and to walk under her own power decreased dramatically. During the fall of 1980, her brother, Allen Ehlebracht, talked with an attorney, Walter Robertson, about the legal problems Gennade would face as her illness deepened. Robertson later visited Gennade and Ehlebracht to discuss these problems. Eventually, Gennade told Robertson that due to trouble within her family, she wanted to leave her entire estate to her minor daughter Normay. Gennade then changed her mind and determined that Allen Ehlebracht and his son should be given her home, with the residue going to Normay. On November 25,1980, Gennade executed a new will incorporating this change of mind.
Gennade’s illness worsened, and in July, 1981, she moved into a nursing home. She apparently wanted her daughter DeLoy to move into her residence. Before DeLoy had an opportunity to move, Allen Ehlebracht changed the locks and moved his son into the house. By the summer of 1981, Gennade no longer could handle financial matters so Ehlebracht set up a joint checking account for her and himself, although she did not sign the signature card. Payments on a contract for deed (on property Gennade had sold in South Dakota) were deposited in this joint account. These payments continued to be deposited in this account after Gennade’s death. This contract and the residence were the chief assets of the estate.
Gennade Engels died on January 6, 1982, and Ehlebracht petitioned for probate of the November, 1980, will. The district court admitted the will, and named Ehlebracht as the executor. Subsequently, Gennade’s. children filed motions to set aside the order admitting the November will and to admit the April will. The district court vacated its prior order admitting the November will, and named Ehlebracht special administrator of the estate. He was instructed to collect and conserve the income and assets of the estate, and to pay only those claims that the district court approved.
The children soon suspected Ehlebracht was using estate funds for his own personal benefit. Based on this suspicion, they asked the district court to issue an order restraining Ehlebracht, which the court did on August 26, 1982. Four days later, they filed a motion requesting the court to: remove Ehlebracht as special administrator and order an accounting; determine whether Ehlebracht had converted estate funds; and determine whether Ehlebracht was liable for allowing his son to live in Gennade’s home rent-free. Hearing on the motion was scheduled for September 2, 1982.
On September 2, attorneys for Ehlebracht and the children met and agreed, as their clients directed, that Ehlebracht would withdraw his petition to admit the November, 1980 will, and would file an accounting of his acts as special administrator. They also agreed that the other matters scheduled for hearing that day would be continued. Ehlebracht’s attorney agreed to draft a journal entry incorporating the terms of the agreement, and proceeded to do so. The journal entry was signed by both attorneys, but was never filed with the court.
Upon learning that the journal entry had not been filed the children sought judicial enforcement of the September 2 agreement. Prior to the hearing on this matter, the court removed Ehlebracht as special administrator. In March, 1983, the court concluded that the September 2 agreement had been a compromise and settlement. The court ruled that Ehlebracht had to withdraw his petition for probate of the November will, and set the other matters (accounting, conversion, and rent issues) for hearing. Subsequently, the court admitted the April, 1980, will to probate.
While the above proceedings progressed, Ehlebracht filed a motion seeking $4059.90 (later increased to nearly $4600) in attorney fees for services rendered the estate. This motion came on for hearing on May 31, 1983. The court ordered briefs on the issue of whether the September 2 agreement barred recovery of attorney fees. No evidentiary hearing was held on the attorney fee issue.
In August, 1983, an evidentiary hearing was held concerning the accounting, conversion, and rent issues. After hearing testi mony, the court approved Ehlebracht’s final accounting. The court found that Ehlebracht had converted $1947.58 in estate funds for his own use, but refused to impose a double penalty on Ehlebracht pursuant to K.S.A. 59-1704; determined that Ehlebracht was not liable for rent during the months he allowed his son to use Gennade Engels’ home; disallowed a $319.88 claim for attorney fees on the basis that Ehlebracht, and not Gennade Engels, had been the client with regard to the preparation of the November will. Finally, the court awarded $2000 in attorney fees to Ehlebracht for his efforts in prosecuting the November will. This appeal followed, raising four issues requiring determination.
Did the September 2, 1982, settlement of the will contest bar a subsequent award of Allen Ehlebracht’s attorney fees?
The district court, in March, 1983, ruled that the September 2, 1982, agreement entered into by the parties was a compromise and settlement. After receiving briefs and hearing argument by counsel, the court determined that because the compromise and settlement neither referred to nor reserved the issue, Allen Ehlebracht’s claim for attorney fees was not barred.
The agreement, found by the trial court to be incorporated in the typed “order” of September 2, is a written instrument. This court is therefor free to determine its construction and legal effect. Hall v. Mullen, 234 Kan. 1031, 1035, 678 P.2d 169 (1984). In making this determination, the general construction rules of compromise and settlement agreements apply.
The law favors compromise and settlement. See International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, Syl. ¶ 1, 393 P.2d 992 (1964). A compromise and settlement generally bars pre-existing claims directly tied to the settled dispute. See 15A C.J.S., Compromise and Settlement § 4. Despite this, a compromise only settles the issues the parties intended to settle. See Maltby v. Sumner, 169 Kan. 417,219 P.2d 395 (1950). A compromise agreement must be construed in light of its language and the circumstances surrounding its making. See 15A Am. Jur. 2d, Compromise and Settlement § 23. More importantly, however, construction of a compromise agreement involves ascertaining and then giving effect to the mutual intentions of its makers. See Washburn v. Washburn, 204 Kan. 160, 161, 460 P.2d 503 (1969). The key question to be resolved in this case is whether the parties intended the agreement to bar any attorney fee claim.
We construe the settlement as encompassing the attorney fee issue, based on the following factors.
First, the agreement was clearly intended to settle the will contest, and fees for proposing the November will were directly tied to that contest. In the absence of language to the contrary, it must be presumed the parties intended to settle the entire dispute.
Second, the agreement specifically reserved two questions for future determination, i.e., Ehlebracht’s liability for conversion and for rent of the residence. If attorney fees before the time of settlement were also to be reserved, the agreement should have said so.
Third, if such fees were to be allowed, it could only be on a finding that Ehlebracht acted “in good faith” in proposing the November will. K.S.A. 59-1504. If the November will was procured through Ehlebracht’s undue influence, there would be a substantial question of his good faith in offering it for probate. Thus his entitlement to fees would depend in large measure on the same evidence that would have been required in the will contest which was settled. It seems highly unlikely that the parties intended to settle the will contest to avoid the acrimony and expense of litigating the undue influence issue, and yet face the same acrimony and expense.to litigate the same issue in a fee controversy. If the heirs had known Ehlebracht intended to pursue such a claim at a later date, they might well have declined the settlement.
We conclude that the settlement of September 2, 1982, precluded Ehlebracht’s claim for his attorney fees, and their allowance must be reversed.
Did the district court err in not imposing a conversion penalty on Allen Ehlebracht pursuant to K.S.A. 59-1704?
It is undisputed that Allen Ehlebracht converted $1947.58 of estate funds during his tenure as executor and special administrator. Ehlebracht testified he believed he could use the funds for his personal needs, and that no one told him that he could not. Before trial on this matter, he reimbursed the estate in the amount of $2000. Based on this evidence, the court determined that Ehlebracht’s conversion was in good faith and without an attorney’s advice. Because of this, K.S.A. 59-1704’s penalty provision was not invoked.
K.S.A. 59-1704 provides that:
“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 double the value of the property so embezzled or converted.” Emphasis added.
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.
Did the district court err in ruling that Allen Ehlebracht was not liable for rent for the nine-month period he allowed his son to live in Gennade V. Engels’ home?
Ehlebracht’s son moved into Gennade’s home four months before her death, and after her death he continued to reside there an additional nine months, or until October 1, 1982. No rent was paid before or after Gennade’s death. Relying on evidence that the home had not been rented since Ehlebracht’s removal as special administrator and on testimony of realtors which the court believed indicated the realtors would not have leased the property, the district court ruled Ehlebracht was not liable to the estate for rent. This ruling is erroneous both because it is not supported by the evidence and because it fails to recognize the duty imposed on a fiduciary not to profit from a position of trust.
The realtors who testified were never asked whether they would have attempted to lease the property. The district court’s belief that the realtors testified they would not have leased the home is simply not- supported in the record. It is true that the parties who acted as special administrator after Ehlebracht was removed did not lease the property but the circumstances surrounding the estate changed a great deal after Ehlebracht’s removal. The first of the two special administrators, a bank, believed its appointment was on a short-term basis, so the cost of preparing the home for tenants made leasing economically impractical (though it would have generated some profit for the estate). The second special administrator, rather than leasing, prepared the property and furnishings for sale and an auction. Although these two did not rent the estate property, the district court erred in deducing that Ehlebracht had no rent liability.
Unlike his successor fiduciaries, Ehlebracht permitted a person to use the home as a residence. He creatéd a tenancy relationship, but did not collect any rent. One of Ehlebracht’s duties as special administrator was to collect and conserve the estate’s income and assets. Ehlebracht failed to carry out this duty when he did not charge rent.
Furthermore, the tenant was Ehlebracht’s son. Although the son received the most visible benefit from the rent-free living arrangement, Ehlebracht also profited. Leases of estate property executed by a personal representative to his child are voidable unless expressly authorized by will or the court. K.S.A. 59-1703. Implicit in this restrictive provision is the concept that a parent benefits when he provides housing for his offspring. Ehlebracht is liable for the reasonable rent for nine months that his actions deprived the estate from receiving during his administration.
The realtors indicated that they believed the home could have rented for between $300 and $350 per month, unfurnished. Although this evidence provides some basis for determining the rent liability, the matter must be remanded to the district court to fix the amount.
Did the district court err in approving Allen Ehlebracht’s final accounting?
In approving the final accounting, the district court concluded that the $2000 Ehlebracht returned to the estate exceeded the amount he converted. In reviewing an accounting, an appellate court’s review extends only to a search of the record to determine whether the district court’s findings are supported by substantial competent evidence. An appellate court neither weighs the evidence nor assesses the credibility of witnesses, but rather determines whether the evidence, viewed in the light most favorable to the party prevailing below, supports the district court’s judgment. See Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).
Although the administrator quarrels with a number of small credits claimed, totalling some $236.06, the evidence must be viewed in the light most favorable to Ehlebracht. One who administers a decedent’s estate has the burden to prove his final accounting is correct. See In re Estate of Mellott, 1 Kan. App. 2d 709, 574 P.2d 960 (1977), rev. denied 225 Kan. 844 (1978). Ehlebracht had no documentary proof that the $236.06 had been spent for estate purposes. The accountants and Ehlebracht indicated that the payments were for the benefit of the estate, however, and the district court apparently believed them. There is thus substantial evidence to support the court’s finding that the $236.06 was spent for estate purposes. That sum, together with the $2000 repaid, exceeded the amount converted plus all other charges sought to be imposed. Except for the items discussed earlier in this opinion the approval of the accounting must therefore be affirmed.
Except as to the items listed below, the judgment is affirmed. As to the following items the judgment is reversed and the case is remanded to the district court to (a) disallow attorney fees for the probate of the November will; (b) impose the conversion liability provided in K.S.A. 59-1704; and (c) charge the special administrator for the reasonable rent of the decedent’s residence during the nine months it was occupied by the administrator’s son following decedent’s death. | [
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Meyer, J.:
Defendant Timothy Snyder was originally charged with three counts of indecent liberties with a minor in violation of K.S.A. 1984 Supp. 21-3503, each a class C felony. The complaint alleged that the defendant had engaged in sexual intercourse with a child under the age of 16.
On October 17, 1983, the State presented evidence at the preliminary examination. After reviewing the evidence, Judge Davis of the Dickinson County District Court bound the defendant over for arraignment on counts I and II, but dismissed count III. On November 4, 1983, defendant appeared before Judge Christner and entered pleas of not guilty. On January 9, 1984, Judge Christner granted the State’s motion to endorse an additional witness who, the State alleged, would testify that the defendant had contacted him in an attempt to fabricate an alibi. On January 15, 1984, the defendant wrote a letter to Judge Christner asking that the judge recuse himself from defendant’s case for bias and religious prejudice against the defendant.
On January 19,1984, immediately prior to the commencement of defendant’s trial, the parties to this action announced to the court that as a result of negotiations, the defendant agreed to plead guilty to one count of attempted aggravated interference with parental custody in violation of K.S.A. 21-3422a, a class E felony. Both counsel stipulated that a factual basis existed for the plea. Judge Christner then questioned the defendant in detail concerning the voluntariness of his plea and thereafter accepted defendant’s guilty plea.
On February 22, 1984, the defendant, through new counsel, filed a motion of bias against Judge Christner. On April 6, 1984, Administrative Judge William Clement heard the motion of bias, excused Judge Christner from hearing the matter, and assigned Associate District Judge Melvin Gradert to the case.
For purposes of clarity, Judge Davis bound defendant over for arraignment, Judge Christner accepted defendant’s guilty plea, and Judge Gradert was in charge of defendant’s case after Judge Christner was excused.
On May 8,1984, defendant filed a motion to set aside his guilty plea, alleging that his plea was coerced and therefore involuntary, and that no factual basis existed for the plea. On June 5, 1984, Judge Gradert heard and then denied defendant’s motion to withdraw his guilty plea. The court then sentenced the defendant and granted him immediate bench probation. Thereaf ter, the defendant filed a motion for reconsideration, which included defendant’s request for an evidentiary hearing and defendant’s allegation of newly discovered evidence concerning Judge Christner’s bias. Judge Gradert subsequently denied the motion to reconsider, finding that defendant’s plea was voluntarily given and that no newly discovered evidence had been presented.
Defendant appeals from Judge Gradert’s refusal to allow defendant to withdraw his plea. Defendant contends he should have been allowed to withdraw his guilty plea because it was entered before a judge who was biased, was entered without a factual basis to support the plea, was entered without his being provided a copy of the information, and because he had been denied the opportunity of an additional evidentiary hearing at which to present evidence he believed was “newly discovered.” Thus, to review Judge Gradert’s ruling on defendant’s motion to withdraw his guilty plea, it is incumbent upon this Court to examine the acceptance of defendant’s guilty plea and to determine its validity.
Defendant first argues that he pleaded guilty because of his belief that Judge Christner and the jury before whom his case was to be tried were biased. Defendant asserts that his plea, motivated by his fear of an unfair trial, was therefore coerced and involuntary.
K.S.A. 1984 Supp. 22-3210(d) provides:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.”
It is well established that a plea of guilty must be made voluntarily and must not be induced by fear. See K.S.A. 1984 Supp. 22-3210(a)(3); 21 Am. Jur. 2d, Criminal Law § 470. However, “mistaken subjective impressions, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to vacate a guilty plea.” People v. Smithey, 120 Ill. App. 3d 26, 33, 458 N.E.2d 87 (1983).
In the present case, defendant expressed his fear of bias at the time of his plea by a letter written by him asking Judge Christner to recuse himself from the defendant’s case. This letter states no more than defendant’s belief that Judge Christner was predis posed against defendant’s religion and that Judge Christner’s sister-in-law was employed by the Kansas Department of Social and Rehabilitation Services, whose files and memoranda would be involved in defendant’s case. We conclude that this letter, when examined in light of other facts revealed in the record, provides little, if any, support for defendant’s claim.
Defendant had known since at least November 4, 1983, that Judge Christner was to preside at his trial. On that date, the defendant appeared in person before Judge Christner for arraignment. Defendant’s letter to Judge Christner was not written until January 15, 1984. Defendant’s allegations of bias do not focus upon incidents occurring between those two dates, but upon events happening prior to his arraignment. The fact that defendant’s letter was written several months after he became aware that he was to be tried in Judge Christner’s court makes defendant’s claim of fear of bias less credible.
In addition, defendant’s letter was not written until after the court granted the State’s motion to endorse an additional witness. That witness would allegedly testify that the defendant contacted him in an attempt to fabricate an alibi. Defendant’s letter, written six days after the court granted the State’s motion, and written four days before trial, appears motivated more by a desire to delay prosecution than by a fear of the judge’s personal bias. Even if based upon the court’s motion, it would have shown at most judicial bias.
Under these circumstances, defendant has failed to demonstrate that his guilty plea was induced by his fear of a prejudiced judge. Defendant has shown no abuse of discretion in Judge Gradert’s determination that defendant’s plea was voluntary.
Defendant next contends that Judge Gradert abused his discretion in refusing to find that defendant’s plea of guilty to the charge of aggravated interference with parental custody lacked a factual basis. At the proceedings before Judge Christner on January 19, 1984, defense counsel stated the defendant “would stipulate there is a factual basis” for the plea entered. Judge Christner then proceeded to question defendant concerning the voluntariness of his plea. At no time, however, did the court inquire of the defendant the factual basis for the plea entered. The closest the court came to ascertaining the facts behind the plea was when the following colloquy between court and defendant occurred:
“The Court: Now, you have earlier this morning a few minutes ago heard [the County Attorney] state what he thought the agreement was and . . . your attorney . . . has commented to the Court. Is this the way you understand the agreement to be between yourself and [your attorney] and the County Attorney, the way they have explained it to me?
“[Defendant]: Yes, it’s pretty well self explanatory, attempted aggravated interference with parental custody.
“The Court: Yes, that’s the charge. Now, as to that charge which is an offense in violation of K.S.A. 21-3422a the County Attorney has read into the record the amended charge against you and at this time the Court inquires of you, Mr. Snyder, how do you wish to plead to that amended charge?
“[Defendant]: I will plead guilty to that amended charge.”
Thereafter, the court stated:
“The Court: All right. The Court will and does accept the plea of the defendant of guilty to the one count, amended charge under 21-3422a known as attempted aggravated interference with parental custody and the Court finds that plea is voluntarily and intelligently given and that a factual basis does exist to establish guilt in this case and the Court hereby finds and adjudges you guilty of the amended count as presently charged in this record.”
Thus, although defense counsel stipulated and Judge Christner expressly found that a factual basis existed for the plea, the record includes no other mention of the factual basis for the charge to which defendant pleaded, and it seems obvious to us that Judge Christner based his finding only upon the stipulation of the parties. It is incumbent upon the judge to personally make a finding that a factual basis for the guilty plea in fact exists.
K.S.A. 1984 Supp. 22-3210(a)(4) provides:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
“(4) the court is satisfied that there is a factual basis for the plea.”
Kansas cases indicate that the “factual basis” requirement may be satisfied by an information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged (Widener v. State, 210 Kan. 234, 239, 499 P.2d 1123 [1972]; see James v. State, 220 Kan. 284, 287, 553 P.2d 345 [1976]); by the court’s personal interrogation of the defendant at length and in detail concerning the facts of the offense charged (State v. Dunham, 213 Kan. 469, 471, 517 P.2d 150 [1972]); by the evidence presented to the court by the prosecutor (see State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 [1983]); or by the court’s presence at defendant’s preliminary hearing (State v. Wright, 7 Kan. App. 2d 631, 637, 646 P.2d 1128 [1982]).
“In establishing a factual basis for the plea the court must establish that all elements of the crime charged are present.” State v. Calderon, 233 Kan. at 93. To establish the crime of attempted aggravated interference with parental custody under K.S.A. 1984 Supp. 21-3422a, it is true that a factual basis need not be shown as to all the elements of the charge since defendant was charged with an “attempt” and not with the “aggravated interference” itself. However, it was essential that a factual basis be established of at least some essential element of the crime. To establish the charge of aggravated interference with parental custody, it must be proved:
1. That_is a child under 14 years of age;
2. That the child was in the lawful custody of_ as (parent) (guardian) (or other person having lawful charge or custody);
3. That the defendant (took) (carried away) (decoyed or enticed) the child;
4. That this was done with the intent to deprive_of the custody of the child; and
5. That the defendant has previously been convicted of interference with parental custody.
or
That the defendant took the child outside the state without the consent of _(or the court).
or
That the defendant, after lawfully taking the child outside the state while exercising visitation or custody rights, refuses to return the child at the expiration of these rights,
or
That the defendant (refuses to return) (impedes the return) of the child at the expiration of visitation or custody rights outside the state,
or
That the defendant detained or concealed the child in a place unknown to _, either inside or outside this state.
6. That this act occurred on or about the_ day of -, 19_, in_County, Kansas.
See PIK Crim. 2d 56.26-C. The law relative to criminal attempts has three essential elements: (1) the intent to commit the crime, (2) an overt act toward the perpetration of the crime, and (3) a failure to consummate it. State v. Cory, 211 Kan. 528, 532, 506 P.2d 1115 (1973). In the instant case, therefore, at least one of the above-mentioned elements of the crime must have been established.
The record in the present case fails to disclose a factual basis for defendant’s guilty plea to the above charge. The information, which was apparently read but not given to the defendant prior to his plea, does not set forth any details or facts of the crime charged, or any essential elements thereof, but merely charges that the defendant, did “unlawfully, willfully and feloniously attempt to commit the crime of aggravated interference with parental custody as defined by K.S.A. 21-3422a but failed in the perpatratio'n [sic] thereof in violation of K.S.A. 21-3301 and K.S.A. 21-3422a the same being a Class E felony.” Judge Christner, when questioning the defendant concerning the voluntariness of his plea, made no inquiry into the facts upon which the charge was based. Although the defendant stated that the charge was “pretty well self-explanatory,” that statement indicates at most that defendant understood the name of the crime with which he was charged, and not the court’s recognition that defendant’s conduct actually falls within that charge. Further, the record reveals no evidence presented by the prosecution that would tend to show the defendant enticed or took a child under 14 from another’s lawful custody, or that the defendant had previously been convicted of doing so, or that the defendant had taken that child out of the State of Kansas.
The only mention of the underlying facts upon which defendant’s charge was based was at defendant’s preliminary hearing. Defendant was, at that time, facing charges of indecent liberties, and Judge Davis, not Judge Christner, presided. Moreover, the defendant’s preliminary hearing revealed only that a 13-year-old child was present at defendant’s farm in Kansas and that the two there engaged in sexual intercourse. Those facts do not form a sufficient basis for the charge to which the defendant pleaded.
The State contends that the parties’ stipulation to the factual basis is sufficient to meet the requirements of K.S.A. 1984 Supp. 22-3210(a)(4). That argument ignores the statutory mandate that the court satisfy itself that there is a factual basis for the plea.
Thus, although the defendant in the present case did not assert his innocence, it would be unreasonable to say that Judge Christner had ascertained a sufficient factual basis for defendant’s guilty plea to the charge of attempted aggravated interference with parental custody. Kansas cases recognize that strict compliance with K.S.A. 1984 Supp. 22-3210 is not mandatory where the purpose of the rule expressed therein is otherwise served, James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976), but the purpose of the rule is defeated in the present case where no evidence reveals that defendant’s conduct falls within the charge to which he pleaded. Under these circumstances, it appears Judge Christner erred in accepting defendant’s guilty plea and that Judge Gradert, therefore, abused his discretion in failing to find that defendant’s guilty plea was not knowingly made. See Clinkingbeard v. State, 6 Kan. App. 2d 716, Syl. ¶ 1, 2, 634 P.2d 159 (1981).
Defendant next complains of Judge Gradert’s refusal to grant him an evidentiary hearing in which he could present “newly discovered evidence” of Judge Christner’s bias and religious prejudice against him. Defendant allegedly gained this new evidence after Judge Gradert overruled defendant’s motion to set aside his guilty plea on June 5, 1984.
The issue properly before Judge Gradert was not whether Judge Christner was prejudiced against the defendant, but whether defendant’s guilty plea was motivated by defendant’s conviction, grounded upon objective evidence, that Judge Christner was prejudiced against him. In making that determination, only the facts within the defendant’s knowledge at the time of defendant’s plea were relevant. Defendant’s newly discovered evidence of Judge Christner’s alleged prejudice surfaced five months after defendant pleaded guilty. That evidence could not have contributed to defendant’s motive for pleading guilty. Accordingly, Judge Gradert did not abuse his discretion in failing to grant defendant an evidentiary hearing in which to present his newly discovered evidence.
Defendant’s final contention surrounds the State’s failure to provide him with a written copy of the information prior to his plea. Normally the State, when confronted with such an argument, could utilize that line of cases holding that where one proceeds to a guilty plea he thereby waives the requirement of a reading of the information. Such line of cases, however, is germane only to situations where the information is, in fact, a proper, or a sufficient, information. Thus, the sufficiency of the information herein must be examined.
The purpose of the information in a criminal case is to advise the accused and the court of the charges alleged to have been committed and the essential facts constituting the crime charged. State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1980). In a felony action, the information is the jurisdictional instrument upon which the accused stands trial. An information must be stated with enough clarity and detail to inform a defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978). The failure to so inform the defendant denies the defendant procedural due process and violates his right to be informed of the charges against him. K.S.A. 22-3205; Kansas Const. Bill of Rights, § 10; U.S. Const., 6th Amend.; State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).
The amended information in the instant case stated only as follows:
. . Timothy Bruce Snyder did then and there unlawfully, willfully and feloniously attempt to commit the crime of aggravated interference with parental custody as defined by K.S.A. 21-3422a but failed in the perpatration [sic] thereof in violation of K.S.A. 21-3301 and K.S.A. 21-3422a the same being a Class E felony.”
As can be seen, the information provided defendant with no more than the name of the crime with which he was charged. This is insufficient.
Thus, while the information supplied defendant with the name of the crime with which he was charged, and while, had the facts therein been more fully set out, such might have satisfied the statutory and constitutional requirements for an information as well as the “factual basis requirement” discussed above, such is not the case here.
Therefore, because of our conclusion that the trial court failed to determine there was a factual basis for defendant’s plea, and because of a total deficiency of the amended information to properly advise him, this case is hereby reversed and remanded with directions to set aside the conviction and sentencing, to allow withdrawal of the guilty plea, and for further proceedings consonant with that action.
Reversed and remanded with directions. | [
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Parks, J.:
Defendant, Jeffrey D. Huber, appeals from his jury conviction of two misdemeanors, possession of marijuana (K.S.A. 1984 Supp. 65-4127b[a][3]) and possession of drug paraphernalia (K.S.A. 1984 Supp. 65-4152).
Defendant contends that the trial court erred in refusing to dismiss the charges for failure of the State to bring him to trial within the statutory time limits.
A defendant’s right to an expeditious trial is protected both by statute (K.S.A. 22-3402[2]) and the constitutional provisions requiring a speedy trial. U.S. Const., Sixth Amendment; Kansas Const. Bill of Rights § 10. The statutory provision establishes definite limits within which a defendant must be brought to trial while the constitutional provisions have been interpreted to require a balancing test of the pertinent circumstances in each case. State v. Rosine, 233 Kan. 663, 667, 664 P.2d 852 (1983).
Defendant contends that he was denied his statutory right to a speedy trial because he was not tried until 194 days after December 7,1983, the date defendant was arrested on a warrant and made his first appearance before a magistrate. However, K.S.A. 22-3402(2) provides that a person charged with a crime and held on an appearance bond must be discharged if he is not brought to trial within 180 days “after arraignment on the charge.” The date of arraignment begins the running of the 180-day limit regardless of whether a felony or misdemeanor is charged. Rosine, 233 Kan. at 669; State v. Taylor, 3 Kan. App. 2d 316, 320, 594 P.2d 262 (1979). Moreover, an arraignment is not necessarily equivalent to a first appearance before a magistrate but is defined as follows:
“The arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged; informing the defendant of the offense charged by reading the complaint, information or indictment or stating to him the substance of the charge; and asking defendant whether he is guilty or not guilty or to otherwise plead as permissible by law.” Rosine, 233 Kan. 663, Syl. ¶ 3.
In addition, K.S.A. 22-3205 provides that arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto.
Defendant was originally charged with a felony offense in addition to the two misdemeanor charges but the felony was subsequently dropped and an amended complaint filed. Defendant was tried on June 18,1984. The only in-court proceeding held more than 180 days before trial was the first appearance held on December 7, 1983. Thus, defendant must contend that this hearing retroactively served as his arraignment on the surviving misdemeanor charges. However, the complaint on which defendant was ultimately tried was not filed until April 17, 1984; therefore, the court could not have accurately read the charges against defendant until after that time. In addition, the journal entry of the first appearance conducted after the first complaint was filed does not indicate that defendant was given any opportunity to enter a plea. In fact, there is no indication in the record that defendant ever entered a plea.
Furthermore, it appears from the record that defendant was never arraigned at all. From the time the amended complaint was filed charging only the commission of the two misdemeanors until the day of trial, there is no indication in the record that defendant was advised of the charges in open court or called upon to enter a plea. This procedural lapse in no way taints defendant’s conviction since a defendant effectively waives arraignment when he goes to trial without objection and submits the question of guilt to the jury. State v. Jakeway, 221 Kan. 142, 143, 558 P.2d 113 (1976); State v. Cutshall, 4 Kan. App. 2d 240, 241, 604 P.2d 288 (1979), rev. denied 227 Kan. 927 (1980). Defendant never contended that he was improperly tried without arraignment; to the contrary, he had to contend that the hearing on December 7, constituted arraignment in order to assert a denial of his statutory right to a speedy trial. In sum, since this December hearing did not conform to the procedures necessary to be called an arraignment, defendant was not tried more than 180 days “after arraignment on the charge.”
There are four relevant factors to consider in determining whether there has been a denial of the constitutional right to a speedy trial: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Rosine, 233 Kan. at 667, citing Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). Rosine compared instances in which delay has been found not to be prejudicial, stating as follows:
“In State v. Calderon, 233 Kan. 87, the court found a thirteen-month delay between the time defendant was charged and brought to trial did not violate his constitutional right to a speedy trial. In State v. Ward, 227 Kan. 663, the court affirmed a conviction where there had been a 243-day lapse between arrest and trial. A similar result was reached in State v. Wilson, 227 Kan. 619, where a three-year period existed between arrest and trial. State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975), found no abridgment of constitutional rights where more than three years passed. State v. Hemminger, 210 Kan. 587, reached a like result with over four years. In Barker v. Wingo, 407 U.S. 514, the U.S. Supreme Court found no violation of defendant’s constitutional right to a speedy trial where more than five years passed between his arrest and trial. Recently, in State v. Hunt, 8 Kan. App. 2d 162, where exactly one year passed between arrest and trial, the Court of Appeals held such a delay was not per se unreasonable. 8 Kan. App. 2d at 168.” 233 Kan. at 667-68.
With these precedents in mind, it is clear that the delay of 194 days between defendant’s arrest and trial cannot be found to be presumptively prejudicial. Moreover, defendant has not suggested any way in which the delay actually prejudiced his case. Therefore, defendant’s constitutional right to a speedy trial was in no way impaired in this case.
Prior to trial, defendant filed a motion to suppress the evidence seized pursuant to the search warrant on the grounds that the affidavit offered in support of the warrant’s issuance was insufficient to establish probable cause. The court refused to consider the merits of this motion, holding that defendant lacked standing to contest the warrant’s validity.
In two relatively recent U.S. Supreme Court cases, the rules regarding standing to attack a search on Fourth Amendment grounds in cases involving possessory crimes were completely rewritten. United States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (1980); Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978), reh. denied 439 U.S. 1122 (1979). Previously, the Court had adopted an “automatic” standing rule with two alternative parts. Jones v. United States, 362 U.S. 257, 263-67, 4 L.Ed.2d 697, 80 S.Ct. 725 (1960). First, any defendant who, in order to have standing, would be required to admit the same type of possessory interest as the prosecution would be required to prove in order to establish an essential element of the crime charged had the automatic right to challenge the legality of a search. In addition, anyone who was legitimately on the searched premises also had the right to raise a Fourth Amendment claim. In Rakas, the Court abandoned the latter basis for standing holding that only individuals who can claim that their personal Fourth Amendment right to be free from unreasonable searches has been infringed have standing. The Court held that the impact of Jones should be limited to meaning that a person may have sufficient interest in premises owned by another to raise a Fourth Amendment claim but that he must have had a reasonable expectation of privacy in those premises. Rakas, 439 U.S. at 142-43. In Salvucci, the Court took a further step in narrowing standing by overruling the remaining portion of Jones which had provided automatic standing to defendants charged with possessory crimes. The Court concluded that standing must depend not merely on whether the deféndant had a possessory interest in the items seized but whether he had a legitimate expectation of privacy in the area searched. The Court did not discount entirely the importance of property ownership in establishing a protectable privacy interest but held that legal ownership was only one factor to be considered. Salvucci, 448 U.S. at 91-93. In sum, the rule adopted in Rakas and Salvucci focuses on the individual’s right to privacy rather than his possible possessory interest in the property searched or seized as the determinative basis for standing to claim an infringement of Fourth Amendment rights.
Our Supreme Court has embraced the narrowing of standing to challenge a search effected by Rakas and Salvucci, holding as follows:
“An illegal search can only violate the rights of those who have a legitimate expectation of privacy in the invaded place. The basic test to determine whether or not a person present on the premises at the time of the search has standing to challenge the validity of the search is not whether that person had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.” State v. Worrell, 233 Kan. 968, Syl. ¶ 1, 666 P.2d 703 (1983).
This syllabus point states that standing depends on whether the defendant had an expectation of privacy in the area searched and not whether he had a possessory interest in the items seized. However, the circumstances of Worrell did not involve the search of any personal property within the premises. The Fourth Amendment protects the right to be free from unreasonable searches in “persons, houses, papers, and effects.” Certainly, it would appear that a person may have an expectation of privacy in certain property he possesses even though he has no such interest in the place in which he possesses it. For example, in State v. Callari, 194 Conn. 18, 478 A.2d 592 (1984), cert. denied_ U.S--(1985), the defendant was a transient social guest in the home searched. He slept in a room of the house for a few nights but kept no clothes in the room or evidenced any intent to stay in the room again. The court held that he did not have an expectation of privacy in either the house or the room itself but held that he did have standing to contest the search of his locked suitcase which was found in the room. The court concluded that by virtue of his acknowledged ownership of the suitcase and the nature of the item itself, the defendant would have an expectation that its contents would remain private. Thus, the defendant’s lack of standing regarding the place searched did not deprive him of the standing to challenge the search of an item in which he would have a privacy expectation. See also Rakas, 439 U.S. at 142, n. 11 (In discussing the casual visitors’ lack of privacy expectation in the place visited the Court noted: “This is not to say that such visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search.”).
When the search of the premises was carried out in this case, a number of items of drug paraphernalia were located in various parts of the house. Substances believed to be marijuana or other controlled drugs were also found on the premises. While defendant’s motion to suppress challenged the admissibility of all of this evidence, only the marijuana and drug paraphernalia found either at defendant’s feet or in the pocket of his sweatshirt jacket were actually admitted into evidence against him. There fore, the key issue in this case is whether defendant had an expectation of privacy in the pockets of his jacket as it lay beside him on the chair. Since none of the evidence in the actual premises search of the house was admitted against defendant, the existence of an expectation of privacy on defendant’s part in the house itself is secondary, if even relevant at all.
Whether an individual may have a legitimate expectation of privacy in a certain item normally involves two inquiries. The first is whether the individual, by his conduct, has exhibited an actual or subjective expectation of privacy or whether he has sought to preserve the item as private. The second question is whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 61 L.Ed.2d 220, 99 S.Ct. 2577 (1979). Thus, for example, items such as luggage, wallets and purses and, of course, an individual’s person have all been found to be subjects of a legitimate expectation of privacy. See, e.g., Robbins v. California, 453 U.S. 420, 69 L.Ed.2d 744, 101 S.Ct. 2841 (1981); United States v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981); Terry v. Ohio, 392 U.S. 1, 9, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).
While there is certainly a greater expectation of privacy in a locked suitcase than in the pocket of a sweatshirt jacket, the fact that the jacket was lying on the chair within defendant’s reach and control would seem to indicate that he expected to be able to limit access to its pockets. In addition, as an item of clothing, the jacket has some of the same qualities of personalness which society recognizes as investing everyone with an expectation of privacy in their own person. Since defendant was not wearing the jacket when it was searched, an expectation of privacy cannot be presumed, but both its proximity and nature militate in favor of such a finding. The search was conducted in the winter and defendant was only a guest in the house. Thus, the jacket was not merely a stray article of clothing lying around but was something defendant arrived wearing and expected to leave the apartment wearing. Under the circumstances, we conclude that defendant did have the necessary privacy expectation in the pockets of the jacket to have standing to question their search.
The search of the house in this case was authorized by the search warrant. While executing that warrant, one of the police officers noticed a bag of white powder on top of the jacket. Upon further observation, he could see a plastic bag appearing to contain green vegetation visible in the pocket of the undisturbed jacket. Thus, the prosecution argued that search of the jacket was proper because the officer observed the contents of the pocket in plain view at a time when he was authorized by the search warrant to be on the premises. See State v. Parker, 236 Kan. 353, 358, 690 P.2d 1353 (1984). The defendant contended that the search was unlawful because the affidavit underlying the search warrant was insufficient to establish probable cause for its issuance.
Recently, in United States v. Leon, 468 U.S. _, 82 L.Ed.2d 677, 104 S.Ct. 3405 (1984), the Supreme Court created a good faith exception to the exclusionary rule for evidence seized pursuant to a search warrant which was subsequently held to be invalid. If this exception can be applied on the assumption that the search warrant was defective, the court need not review the actual sufficiency of the warrant and underlying affidavit. If the evidence seized need not be excluded from admission, our inquiry into the lawfulness of the search is at an end.
No Kansas case has formally adopted the Leon holding and this Court is technically free to retain the stricter pre-Leon rules adopted by our state in interpreting Section 15 of the Bill of Rights of the Kansas Constitution. However, our Supreme Court has repeatedly stated that the scope of § 15 is identical to that of the Fourth Amendment to the U.S. Constitution (see, e.g., State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 [1983]), and there is no reason to believe that the Kansas Supreme Court would take a different position regarding the Leon rule. See State v. Rose, 8 Kan. App. 2d 659, 663, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983). Therefore, we conclude that the good faith exception to the exclusionary rule created in Leon should be applied, if appropriate, to this case.
In Leon, the Supreme Court held that the exclusionary rule should not bar admission of evidence seized in good faith on the authority of a search warrant issued without fraud or falsity in the affidavit or partiality by the magistrate. Here, the defendant has made allegations supported by an affidavit that some of the statements in the affidavit were false. Specifically, the affidavit stated that Laurie Roney’s boyfriend “divulged to the informant” that he and Laurie Roney were using cocaine, quaaludes and marijuana. Defendant filed an affidavit by Mike Decker stating that he was Laurie Roney’s boyfriend but that he had never made such a statement. Since defendant did not claim falsity by the police officer affiant but simply disputed the truthfulness of an informant’s statement, there is no taint on the appearance of good faith possessed by the police which would undercut the application of Leon. Leon, 82 L.Ed.2d at 689-99. See, e.g., Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978); State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861 (1978).
Defendant has raised no other questions concerning the motivation of the police officers seeking the warrant or the issuing magistrate which would prohibit the application of the good faith exception to the exclusionary rule. Therefore, regardless of the sufficiency of the affidavit, the search authorized by the warrant may be viewed as producing admissible evidence. The officers were conducting their search of the house in good faith and observed the items seized from defendant’s jacket in plain view. Therefore, the search of the jacket, as well as that of the house, would be proper.
Appellant’s motion to assess costs is sustained and transcript costs of $102.00 are assessed against the State (Cloud County).
Affirmed. | [
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Foth, C.J.:
This is an appeal from an order admitting a will to probate. Because of inadequate notice to decedent’s heirs, we reverse.
Decedent executed the will on October 26, 1983. On October 30, she died. On November 1, her funeral was held, and the petition for probate was filed that afternoon. It recited that there were no known heirs despite the fact that counsel who drew the will and filed the petition had represented decedent for some seventeen years, had drawn at least six prior wills, had the names of several heirs in his files, and had specifically discussed at least one heir with the decedent when discussing the new will just two weeks before; and despite the fact that one legatee was described in the will as decedent’s cousin.
The statutory notice was published, advising interested parties that written defenses must be filed by the hearing date of November 30, or judgment would be entered on the petition.
Counsel for the appellant, a legatee but not an heir, entered the case on November 29, proposing to contest the will on the grounds of testamentary capacity, fraud, and undue influence. No written order of continuance was ever entered, but all agree that the hearing was orally continued to December 28 by agreement of counsel and the court.
In a motion filed by appellant on December 9, two additional heirs were named, besides the one described as a cousin in the will. On December 13, counsel for petitioner mailed a copy of the printed notice to these two heirs; it, of course, notified them that they were two weeks too late to file defenses. Petitioner and his counsel made no further effort to learn of any more heirs, but on December 26, in deposing the cousin named in the will, petitioner’s counsel learned of yet three more. Notice was mailed to these heirs on December 28, the date of the hearing for probate of the will. This, obviously, was too late to permit these heirs to defend at that hearing even if they had been advised of the continued date. In fact they, like the heirs notified on December 13, were told, in effect, that their time to object to the will had long passed.
At the probate hearing of December 28, appellant objected to proceeding because, among other grounds, the notice to heirs was inadequate. The court overruled this objection and all others and approved the notice of hearing, specifically finding that a good faith effort has been made to ascertain and notify the heirs of decedent. It thereupon proceeded to hear evidence on the execution of the will and decedent’s testamentary capacity, and on December 30, admitted the will to probate.
We think the court’s procedure mistook and ignored the import of In re Estate of Barnes, 212 Kan. 502, 512 P.2d 387 (1973). In Barnes, as here, it became known to the trial court before the probate hearing (a trial de novo on appeal from the probate court) that there were unnotified heirs. It nevertheless proceeded to hear the petition for probate based on a finding that there had been due diligence and a good faith effort at the probate court level to ascertain the decedent’s heirs. On appeal the Supreme Court found sufficient evidence to support such a finding and concluded that the failure to notify heirs who could not be ascertained with due diligence did not deprive the probate court of jurisdiction to admit the will. However, the court further observed that failure to notify known heirs denied them due process, citing Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), and Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970).
The court went on to say:
“Once it became apparent at the district court level that all parties interested in the probate of the will and whose rights might thereby be affected, had not been notified of the proceeding, it became imperative that such parties be so notified if reasonably possible to do so. Consequently, we believe the trial court erred in proceeding to determine the appeal as it did without notice to these missing heirs or, in the alternative, a showing why they could not be so notified.” 212 Kan. at 511. Emphasis added.
See also In re Estate of Barnes, 218 Kan. 275, 277, 543 P.2d 1004 (1975).
The result was a reversal and a remand with directions to set aside the order admitting the will to probate, order adequate notice to all heirs, and to hold a new hearing.
The thrust of Barnes is to place an affirmative duty on the trial court to see that known heirs are accorded due process by the giving of adequate notice. There is no way that the outdated notice given here, and particularly that mailed on the date of the hearing, can be said to be adequate notice. The remedy, as we see it, is the same as in Barnes; i.e., a remand with directions to set aside the order admitting the will to probate, to order notice to interested parties who are known, and to conduct a new hearing on the probate of the will. The trial court’s order appears to have been based in large part on its concern that such a sizeable estate should not go unsupervised for any extended period of time. While we agree with this basic premise, the court’s concern could have been adequately met by the appointment of a special administrator under K.S.A. 59-710, a suggestion made (if not very forcefully) by counsel for the Shriners’ Hospitals.
In view of our disposition of this issue we need not address other points raised by appellant. The judgment is reversed and the case remanded for further proceedings in accordance with this opinion. | [
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Rees, J.:
This case arises from the corporate merger of non-party Solomon Valley Area Development, Inc. (Development) with defendant Solomon Valley Feed Lot,-Inc. (Feed Lot), by which Feed Lot emerged as the surviving corporation. Plaintiffs are five stockholders holding in the aggregate 600 shares of Development, who all objected to the merger and brought this action for declaratory and other relief. The district court granted summary judgment in favor of Feed Lot. We affirm.
None of the parties dispute the material facts. Facts important to this appeal will be mentioned as they become relevant.
Plaintiffs first argue that the district court erred in finding plaintiffs were not entitled to a judicial declaration that the appraised value of their shares in Development include an element of value attributable to the combined worth of Feed Lot and Development. Plaintiffs are in error.
In order to compensate a dissenting stockholder for the loss of his rights when the corporation in which he holds shares merges with another corporation, K.S.A. 17-6712 grants to the dissenter appraisal rights. The right to appraisal under Kansas law is purely statutory. Cf. Kaye v. Pantone, Inc., 395 A.2d 369 (Del. Ch. 1978). Thus, the short answer to plaintiffs’ claim of error is that K.S.A. 17-6712(b) explicitly excludes the element of value they seek:
“If any such [dissenting] stockholder . . . shall demand in writing, from the corporation surviving . . . the merger . . ., payment of the value of his stock, the surviving . . . corporation shall pay to him . . . the value of his stock on the effective date of the merger . . . exclusive of any element of value arising from the expectation or accomplishment of the merger . . . (Emphasis added.)
Nor does the existence of the corporations’ incorporators’ preincorporation agreement promising eventual merger between the two corporations require a different conclusion. First, the appraisal statute does not provide for nor allow possible deviation from its strictures by an independent agreement that dissenting stockholders will be paid value arising from accomplishment of the merger. K.S.A. 17-6712(b). Second, even if the statute allowed an independent agreement that the value of a dissenting stockholder’s share would include an element of value arising from the accomplishment of the merger, the preincorporation agreement here would not aid plaintiffs. That agreement, as noted by the trial judge, concerned only the exchange and retention of shares by the two corporations’ stockholders, not the share value to be paid to dissenting stockholders.
Further, we find no merit in plaintiffs’ theory that because Feed Lot and Development were one business venture they, in the capacity of dissenting stockholders of Development, should be paid a proportionate value of Feed Lot’s assets. Even if the appraisal statute contained a provision to allow a stockholder to “pierce the corporate veil” to reach the other corporation’s assets, the record on appeal does not bear out plaintiffs’ assertion that these corporations were but one entity. Plaintiffs conceded below that Feed Lot and Development were “two legally distinct corporate entities.” The creation of the two separate corporations was effected for the various stockholders’ own business purposes and benefit.
In sum, plaintiffs are not entitled to an element of value representing what would be their proportionate interest in Feed Lot had they exchanged their Development shares for Feed Lot shares and the trial court was correct in so holding.
Second, plaintiffs argue the district court erroneously found they were precluded from rescinding their election to cash out of the merger. We cannot agree.
Plaintiffs present a number of arguments attempting to explain why they should be allowed to back out of what in hindsight they have determined was an unwise decision. We mention only one, plaintiffs’ assertion that they are free to rescind their appraisal election until they deliver their shares to the clerk of the court. See K.S.A. 17-6712(g). Their arguments are without merit. The bottom line is that plaintiffs properly perfected their rights to an appraisal and then failed to follow the statutory procedure to withdraw their election. K.S.A. 17-6712(i). The withdrawal section of the statute simply does not grant dissenting stockholders the right to freely withdraw their election before submission of their shares to the court. We find that plaintiffs are bound by their election to pursue the statutory appraisal remedy and that the trial court properly refused to allow them to rescind.
Third, plaintiffs assert the merger of Development and Feed Lot violated common law preemption rights retained by them by virtue of a savings clause in K.S.A. 1984 Supp. 17-6002. We find and conclude that the merger did not violate preemption rights, if any, retained by plaintiffs since any such rights would have accrued only with respect to Development’s issuance of additional shares. K.S.A. 1984 Supp. 17-6002(b)(3). See also Federal Reserve Life Ins. Co. v. Gregory, 132 Kan. 129, 294 Pac. 859 (1931) (violation of plaintiff-stockholder’s preemption rights when officers of plaintiff corporation had capital stock of corporation issued to themselves without notice to plaintiff-stockholder).
In conclusion, we hold there exists no genuine issue as to any material fact and that Feed Lot is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984).
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Parks, J.:
Plaintiffs, Farmers Insurance Company, Inc. (Farmers) and Shelter Insurance Companies (Shelter), filed this declaratory judgment action against defendant, Prudential Property and Casualty Insurance Company (Prudential), seeking contribution to an insurance settlement paid by plaintiffs. The district court granted summary judgment to plaintiffs and defendant appeals.
On November 22, 1980, Brenda J. Picking was a passenger in a motor vehicle operated by Michelle L. Miller. The Miller vehicle collided head-on with another motor vehicle being operated by Mathew A. Insley, who was an uninsured motorist. All four individuals involved in the collision were killed.
At the time of the collision, each plaintiff had an insurance policy covering Miller’s vehicle and providing uninsured motorist coverage to the named insured and “any other person while occupying an insured motor vehicle.” The limit of each policy was $15,000. Defendant had issued insurance policies to Flora Picking (Brenda’s mother) covering three vehicles. These policies also provided uninsured motorist protection to the named insured and any relative living in the household. Thus, Brenda Picking was protected at the time of hfer death with uninsured motorist coverage through all five insurance policies issued by plaintiffs and defendant.
After investigation indicated that Mathew Insley was uninsured, Everett and Flora Picking, heirs-at-law of Brenda J. Picking, brought a wrongful death action in the District Court of Dickinson County, Kansas, against the special administrators of the estates of Mathew A. Insley and Michelle L. Miller. Plaintiffs intervened in that action as the insurers of Miller to bring about settlement of the claim. A $27,500 settlement was reached and because the two vehicles collided in the middle of the road, the parties concluded that under comparative negligence, Insley and Miller were equally at fault. Thus, one-half of the settlement figure was assessed against the liability of each driver. The intervening insurers then paid the entire amount of the settlement dividing responsibility for $13,750 as payment of a claim against their liability coverage of Miller and sharing the cost of the other $13,750 as uninsured motorist coverage for Insley’s negligence.
Prior to resolution of the lawsuit, defendant was asked to participate with plaintiffs in the uninsured motorist settlement with the Pickings. Defendant responded by letter dated April 21,1981, and denied any obligation to make a voluntary payment in regard to the uninsured motorist claim. On March 29, 1982, plaintiffs filed their petition to recover three-fifths of the $13,750 settlement or $8,250 from the defendant.
Subsequently, plaintiffs filed a motion for summary judgment contending that defendant was required to contribute to the uninsured motorist settlement based upon the ratio of the number of policies defendant maintained covering its insured, Picking, (three) to the total number of policies maintained by the insurance companies (five). In its brief in opposition to the motion for summary judgment, defendant argued that summary judgment was inappropriate since a determination of the comparative fault of the two drivers had not yet been determined by a jury and, further, that an “excess-escape” clause contained in its policies made defendant’s policies “excess’” and not subject to pro. rata contribution. The district court agreed with plaintiffs and granted the summary judgment.
Defendant argues on appeal that the trial court erred in concluding that defendant was proportionally liable for the damages attributable to the uninsured motorist. The basis for its denial of any liability for contribution is the following “other insurance” provision found in its “easy to read” policy:
“In the case of cars you don’t own, we’ll only pay if the amount due you is more than the amount payable under any other similar insurance that covers the accident. And then we’ll only pay that amount by which the maximum amount for this part shown on the Declarations Page exceeds the maximum amount provided by the other insurance. We’ll only pay if you have this coverage on your own car.”
This type of insurance provision is typically referred to as an “excess-escape” clause because it seeks to limit liability to the excess damages not covered by other insurance or to escape it altogether if there is no excess due above the limits of other policies. The policies of both Farmers and Shelter have similar provisions; but, since the named insureds of the plaintiffs’ policies (Miller’s parents) owned the car in which the insured (Picking) was killed, there is no question but that their excess-escape clauses were inapplicable and plaintiffs were liable for the uninsured motorist coverage. By contrast, the excess-escape clause in Prudential’s policy would, on its face, eliminate any liability for defendant since the amount due the insured’s heirs, $13,750, was less than the amount payable under either of plaintiffs’ policies, $15,000. However, the district court held that defendant’s excess-escape clause was void under the authority of Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973), and ruled that Prudential was liable for contribution of a pro rata share of the settlement. Defendant appeals the decision holding its policy provision void.
Insurance contracts will be enforced according to their terms so long as they do not conflict with pertinent statutes or public policy. Gibson v. Metropolitan Life Ins. Co., 213 Kan. 764, 770, 518 P.2d 422 (1974). In Clayton, the Supreme Court held that policy provisions which attempt to condition, limit or dilute the unqualified uninsured motorist coverage mandated by statute are void and of no effect. Clayton, 212 Kan. 640, Syl. ¶ 1. The “other insurance” provision considered purported to limit uninsured motorist coverage to the amount the policy limit exceeded the limit of other coverage. When applied against the insured, this provision operated to prohibit stacking coverage and therefore diluted the protection mandated by law. For example, if, as in Clayton, a person injured in an accident with an uninsured driver was covered by three policies with limits of $20,000 each, the excess-escape clause would limit his collectible damages to $20,000 since no one policy exceeds the limits of the other two. Since the Court had previously held that “stacking” coverage was lawful, the Clayton court held that the anti-stacking effect of the other insurance provision would dilute the $60,000 worth of intended coverage. Thus, Clayton held that under the facts of that case, the excess-escape clause was void.
Plaintiffs contend that Clayton held void the precise type of provision Prudential seeks to rely on and that the provision must be void for all purposes. Defendant, making an argument which was raised but not decided in Midwest Mutual Ins. Co. v. Farmers Ins. Co., 3 Kan. App. 2d 630, 633, 599 P.2d 1021 (1979), rev. denied 227 Kan. 927 (1980), argues that Clayton held “other insurance” clauses void only insofar as they prohibit “stacking” to fully compensate the insured within the aggregate limits of the applicable policies. Defendant also contends that stacking is not an issue in this case and that Clayton is inapplicable.
Judicial decisions must always be interpreted in light of the facts considered in the case. The provisions involved in both Clayton and this case have two distinct aspects. First, the excess-escape clause provides that coverage under the policy only attaches if the amount of damages due exceeds the coverage provided by others. If this first provision is met so that liability must be assumed, the second part of the other insurance provision seeks to limit the amount of the coverage provided. It was this second limitation which was considered and held void in Clayton. However, the Court did not consider the effectiveness of the first part of the clause which excludes all liability in the event that a threshold amount, determined by the limits of other coverage, is not exceeded.
Since the Pickings’ uninsured motorist damages of $13,750 were within the $15,000 limit of plaintiffs’ policies, the threshold amount was not reached in this case. Thus, Prudential seeks only to enforce the escape provision of its policy which was not considered in Clayton; the excess provision limiting the amount of liability does not come into play. We, therefore, must consider whether there is any public policy reason which would prohibit enforcement of the provision of Prudential’s contract which would permit it to escape liability for contribution.
A similar question was considered in a different context in Western Cas. & Surety Co. v. Universal Underwriters Ins. Co., 232 Kan. 606, 657 P.2d 576 (1983). In Western, the Court considered the effectiveness of two other insurance provisions in automobile liability insurance policies. The coverage is mandated by the Kansas Automobile Injury Reparations Act (K.A.I.R.A.), K.S.A. 40-1301 et seq., in much the same manner that uninsured motorist coverage is required by law. In addition, it has been held that provisions which would dilute or exclude K.A.I.R.A. coverage are void just as provisions limiting uninsured motorist coverage are also without effect. DeWitt v. Young, 229 Kan. 474, 478, 625 P.2d 478 (1981). Thus, the appellant in Western sought to defeat reliance on an other insurance clause in a liability policy on the basis of the same type of public policy argument which was successful in Clayton. However, the particular policy involved did not limit coverage, it simply established that other coverage had prior responsibility. Therefore, in response to Western’s argument that the provision was void as an attempt to dilute coverage, the Court held as follows:
“The logic of Western’s argument is difficult to follow. ‘Other insurance’ excess coverage clauses do not seek to dilute, condition or limit statutorily mandated coverage. Rather they seek only to establish priority as to which policy should be exhausted first in satisfying the liability. We conclude such clauses are not violative of K.A.I.R.A. . . .
“Western argues even if’other insurance’ clauses are held not to be violative of K.A.I.R.A., they are contrary to public policy. This point is wholly without merit. We see no public policy question in how insurance companies divide among themselves the loss occasioned by their communal insured.” Western, 232 Kan. at 609.
Despite the different insurance context, the conclusion of Western that a provision which does not dilute coverage but seeks to establish a priority of payments between insurers is not violative of public policy is equally applicable to this case. Both uninsured motorist coverage and that dictated by the K.A.I.R.A. may not be limited or diluted, but there is no reason that, once assured full coverage will be afforded the insured, the insurers cannot be permitted to attempt to make their coverage secondary to the coverage of others. Of course, if several insurers have an equal claim to secondary status, the provisions relied upon may be disregarded as mutually repugnant and the insurers forced to share pro rata. Western, 232 Kan. at 611. However, if the circumstances permit only one insurer to rely on an other insurance clause to assert a secondary liability position, enforcement of the resulting priority in a contribution action does not violate public policy.
Since Clayton did not hold the escape clause establishing priorities between overlapping coverages void and since this priority provision does not dilute the coverage paid for by the insured, there appears no reason that the provision should not be enforced. As Western stated, there is no public policy prohibiting the imposition of a priority between insurers. Thus, the mere coupling of an inoffensive clause with one which must be void as an attempt to limit coverage need not render the entire provision void.
We, therefore, conclude that the district court erred in holding defendant liable to plaintiffs. Its contract provides that it is not obligated to provide any coverage when the limits of other insurance need not be exceeded to cover the entire loss. This provision does not violate public policy as a dilution of uninsured motorist coverage and must be enforced. Since the Pickings’ loss fell under the limits of plaintiffs’ coverage, defendant is not liable.
In light of this conclusion, we reverse the judgment of the district court on both the issue of liability and attorney fees. See Watson v. Jones, 227 Kan. 862, 871, 610 P.2d 619 (1980).
Plaintiffs’ motion for attorney fees in reference to this appeal is also denied.
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Woleslagel, J.:
The question presented in this case is whether
multiple convictions for traffic offenses arising out of one incident are to be considered as separate convictions or only one conviction for purposes of the Kansas Habitual Traffic Violators Act, K.S.A. 8-284 et seq.
The critical portion of the act is K.S.A. 8-285, which provides in part:
“The term ‘habitual violator’ means any resident or nonresident person who, within the immediately preceding five years, has been convicted in this or any other state:
“(a) Three or more times of:
“(2) Driving while under the influence of alcohol or drugs, as prohibited by K.S.A. 8-1567 and amendments thereto, or as prohibited by an ordinance of any city in this state or by any law of another state, which ordinance or law declares to be unlawful the acts prohibited by that statute;
“(3) Driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262 or as prohibited by any ordinance of any city in this state or any law of another state which is in substantial conformity with that statute;
“(b) Three or more times, either singly or in combination, of any of the offenses enumerated in subsection (a) of this section.”
Robert G. Underwood (defendant-appellant) was held by the trial court to be a habitual violator. The bases for this holding were:
1. On January 27, 1982, he was convicted of driving while intoxicated on December 4, 1981.
2. On May 6,1983, he was convicted of two offenses, driving while intoxicated and driving while his license was suspended, which occurred simultaneously on August 25, 1982.
The two offenses are admittedly included in the eight offenses listed in K.S.A. 8-285(a) as ones that will support an action under the habitual violator statute.
The action was not under K.S.A. 8-285(a), which involves a conviction of the same offense “[tjhree or more times.” Rather, it was under K.S.A. 8-285(b), which requires a conviction “[t]hree or more times, either singly or in combination, of any of the offenses enumerated in subsection (a) of this section.” Our problem is what should be made of this language.
The May 6, 1983 determination was a single judgment of two convictions. But is the phrase “either singly or in combination” to be read as meaning this was two qualifying convictions for purposes of the Habitual Traffic Violators Act, even though they were decreed almost simultaneously? The State urges this construction. That would be correct if “in combination” is read as referring to convictions.
Underwood, however, claims the three convictions must be sequential, arising out of three different incidents. He says the phrase “either singly or in combination” refers to the underlying offenses. This is a supportable position since K.S.A. 8-285(a) is devoted entirely to one who is charged with convictions of repeated violations of the identical offense. K.S.A. 8-285(b) speaks of something different: convictions of repeated violations, but of any of the offenses. Thus, there may be a mixture of the offenses only under subsection (b) — a “combination” of the offenses. Considering only the language of K.S.A. 8-285, one construction seems about as reasonable as its opposite. The result is that the language is ambiguous.
Faced with ambiguity, we are authorized, and perhaps even directed, to look to the intent and purpose of the entire statute as an aid in deciding what court action should be given to the ambiguous part. Wachholz v. Wachholz, 4 Kan. App. 2d 161, 162-63, 603 P.2d 647 (1979), following United Parcel Service, Inc. v. Armold, 218 Kan. 102, Syl. ¶ 2, 542 P.2d 694 (1975). See also State v. Luginbill, 223 Kan. 15, 19, 574 P.2d 140 (1977).
K.S.A. 8-284 states what the legislature intended to accomplish by this act:
“It is hereby declared to be the public policy of the state of Kansas:
“(a) To provide maximum safety for all persons who travel or otherwise use the public highways of the state;
“(b) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct, attitude and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts and the statutorily required acts of its administrative agencies; and
“(c) To discourage repetition of criminal acts by individuals against the peace and dignity of this sfate and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual violators who have been convicted repeatedly of violations of traffic laws.” Emphasis supplied.
The State’s construction of the statute seems more likely to “provide maximum safety.” It leads, however, to results not reasonably intended. A driver, faultless for many years, could be deemed a “habitual” violator when convicted of driving while intoxicated, failure to renew his liability policy, and failure to stop at the scene of a scraping accident — all within two city blocks and five minutes of time.
Does such an incident produce a “record” which demonstrates the driver’s “indifference to the safety and welfare of others,” or a “disrespect for the laws”? Perhaps so, but whatever the answer, the incident does not qualify as a “repetition of criminal acts.” The violator would receive increased and added deprivation of privileges although his violations were not “habitual” as that term is generally understood. He would be “convicted repeatedly,” but, presumably all within a few minutes — hardly what the phrase is understood to mean.
The statute is not denominated as either criminal or civil, but no fine or confinement is authorized except that to drive while adjudged a habitual violator is a class E felony. K.S.A. 8-287. The State shows that the statute has been declared civil in nature. State v. Boos, 232 Kan. 864, 659 P.2d 224 (1983). It contends this means that Underwood’s sequential relation construction is not appropriate. The premise is firm; the conclusion debatable.
The statute has been construed in our appellate courts on three occasions. The first was State v. Skeen, 3 Kan. App. 2d 231, 592 P.2d 150 (1979). Neither civil nor criminal nature nor sequential relationship was addressed. The next appearance was in State v. Wood, 231 Kan. 699, 647 P.2d 1327 (1982). Strict versus liberal construction was argued by the parties, but was not a consideration in the decision which related solely to whether convictions of certain city ordinances qualified as underlying convictions. The offenses in that case were so separate in time that we would assume the convictions also were. The statute is not classified as criminal, but in referring to the penalty of loss of driving privileges for a period of at least three years, the opinion terms this a “major sanction.” 231 Kan. at 702. Sequential relationship was not in issue.
Finally, State v. Boos, 232 Kan. 864, noted the “quasi-criminal language used” in the statute, but found that not to be an adequate criterion to hold the statute criminal rather than civil. 232 Kan. at 870. The underlying offenses and convictions were separate in time. Sequential relationship, once again, is not mentioned. We find no support in that case for the State’s argument that since the statute is civil the sequential relationship requirement is inappropriate.
When faced with lack of clarity in a statute, it is appropriate for a court to check the legislative history. Wachholz, 4 Kan. App. at 163; Luginbill, 223 Kan. at 19. This enactment originated as Senate Bill 539 in 1972. The only relevant history we find is in the Minutes of the Senate Judiciary Committee meeting on February 16 when this bill and four others were being considered. Only two witnesses addressed the bill specifically: Mr. Laudan of Ranger Insurance Company, and Senator Dearth, who commented only that he supported it and that “six states already have such a law.”
Mr. Laudan distributed records of sixteen drivers who he said had misrepresented their records to obtain insurance from his company. The number of violations shown varied from five to twenty-five, mostly fifteen or more. He suggested the members should review the records “to illustrate the kind of operator (earlier classified by him as dregs at the bottom of the barrel) who will be taken off the roads by the passage of Senate Bill 539.” He remarked that “no one can continuously operate a motor vehicle and not make some mistake.” He indicated the type of driver addressed when he stated, “What we are trying to do with Senate Bill 539 is to get rid of the operator — male or female — who continues to flaunt his or her disregard for law and for his or her fellow man.”
We have no way of knowing what the legislative body believed the bill said as to sequential incidents or convictions. We do believe sequential incidents was the essence of what Mr. Laudan proposed to the Senate Judiciary Committee.
Generally, courts are governed by the sequential relationship principle when applying habitual criminal enactments:
“The majority of the cases in which the courts have construed statutes which, in substance, provide for enhancement of the punishment of one previously convicted, hold that where there were two or more convictions on as many indictments or on two or more counts in the same indictment, only one of them may subsequently be utilized as a previous conviction within the contemplation of habitual criminal statutes.” Annot., 24 A.L.R.2d 1247, 1262.
Kansas decisions have conformed to the A.L.R. statement since State v. Volmer, 6 Kan. 379 (1870). Rationale and a review of earlier cases are well supplied in State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, affirmed 230 Kan. 287, 634 P.2d 1078 (1981), which dealt with our general habitual violator statute, now K.S.A. 1983 Supp. 21-4504. State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), applied a sequential relation requirement to our self-contained Habitual DUI statute, K.S.A. 8-1567.
The State now cites certain cases from other states which purportedly would lead to a conclusion in opposition to the reasoning and holding in Osoba, but they were discussed and found not persuasive in Osoba. Other foreign cases cited by the State, however, make it clear that some states have reached a determination inconsistent with the sequential relation principle in habitual violator acts based — at least in part — on the “single or in combination” language or on language similar and just as unclear. In Hardison v. Hall, 162 Ga. App. 342, 291 S.E.2d 416 (1982), the result appears to be based, in part, on the view that the legislature could have clarified the phrase. In Brewster v. Penn. DOT, 52 Pa. Commw. 112, 415 A.2d 922 (1980), the identical phrase led to a holding that habitual status was proven when only one driving incident caused multiple convictions. The same result followed in State v. Thomas, 275 N.W.2d 422 (Iowa 1979), when reckless driving and driving during license suspension were considered to be two convictions even though they arose from one incident. The phrase was again identical. We recognize the strength of these cases and they make the decision of the trial court understandable. But they are not necessarily mandates for Kansas.
The State appears to cap its arguments by referring to decisions in Virginia and to the action of the Vermont legislature in clarifying such language in 1982 (Vt. Stat. Ann. tit. 23, §673a [1984 Supp.]), while the Kansas legislature did nothing about the language even though our driver’s license suspension law (K.S.A. 8-255) was enacted long before 1972 and would have provided a ready model for clarification as it spoke of “violations committed on separate occasions.”
As to the Vermont history, we do not find the reasoning persuasive. That Vermont noticed there was a grammatical problem is no proof that the problem was noticed in the Kansas legislature. Also, it is just as logical to conclude that our legislators would have clarified the language if they disliked the established sequential relation concept of the Kansas courts as to conclude that they would have clarified it if they liked the concept.
Our act appears to have used the Virginia enactment as a model. That statute used the exact phrase and had been in litigation before.the enactment of ours. Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971). The Estes court concluded that two convictions in one case constituted two convictions under their Habitual Offender Act. Adoption of legislation already construed normally carries the construction as well as the language, but we do not find that either mandatory or appropriate. Rather, we think a more sound position is that the statute should be dealt with in the same manner as it was dealt with in the state of origin. The conclusion in Estes was reached in this manner: Interpret the phrase according to how similar provisions are interpreted in this state as to related statutes.
That method of interpretation sends us, of course, right back to Wilson and Osoba and Kansas cases cited therein. And that, accordingly, means the sequential relation rule is extended to proceedings under K.S.A. 8-284 et seq. Oregon reached a like result under like circumstances. State v. Zook, 27 Or. App. 543, 556 P.2d 989 (1976). Their Habitual Traffic Offenders Act had language similar to ours. The Act was interpreted (but at a later time) to be civil in nature: State v. Rhoades, 54 Or. App. 254, 634 P.2d 806, rev. denied 292 Or. 232 (1981). Zook held that se quential relationship was applicable because Oregon courts had already held it applied to their general Habitual Criminal Act.
In accordance with what we believe was the intent of our legislature, and following the holdings and reasoning from earlier Kansas cases as to related statutes* we hold that the principle of sequentiality in interpreting enhancement statutes has already been established by Wilson and Osoba. “[B]y analogy,” Osoba extended sequentiality under K.S.A. 1983 Supp. 21-4504 to K.S.A. 8-1567(d). 234 Kan. 443. This indicates to us that we also should recognize the use of analogy and thus extend sequential relationship from K.S.A. 8-1567(d) to K.S.A. 8-285(b).
Doing so, however, leaves unanswered a question as to what must be sequential: the violative incidents or the convictions thereon, or both (incident plus conviction, followed by a second incident plus conviction, followed by a third incident plus conviction). The question really comes down to whether the purpose of our statute is distinct from the purpose of the other two statutes.
If there is identical purpose behind all three statutes, it seems clear that each incident and its conviction must follow the earlier incident and its conviction. Wilson held it was required “that each succeeding offense he committed after conviction for the preceding offense,” 6 Kan. app. 2d 302, Syl. ¶ 1. Osoba adopted identical language. 234 Kan. 443, Syl. ¶ 1. Each case is concerned with rehabilitation designed to be accomplished as the result of conviction and punishment. Each case makes reference to State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975), which reasons:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.”
But is reformation and rehabilitation of individuals the objective sought under our Habitual Traffic Violators Act? We believe not. Its purpose is simple: get the chronic violator out from behind the wheel. By chronic violator we mean one who repeatedly violates the law whether yet convicted of the prior violations or not. That is certainly a fair expression of what Mr. Laudan was seeking when he addressed our Senate Judiciary Committee. It seems reasonable that is why they responded by recommending Senate Bill 539 for passage.
This construction, moreover, is more consistent with the stated purpose of “provide maximum safety,” “deny the [operator] privilege” and “discourage repetition of criminal acts.” K.S.A. 8-284.
Although the legislative language is far from clear, we believe that incidents are the key and they must be sequential. We therefore hold that to find a person to be a habitual traffic violator under K.S.A. 8-285(b), the court must find three or more convictions of offenses listed under K.S.A. 8-285(a), each based on a separate incident. Since in this case the two 1983 convictions arose out of one incident, they can only be counted once. Thus, defendant had only two convictions for the purposes of the habitual violators act.
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Abbott, J.:
This is a personal injury case. The plaintiff, Archie Anderson, was injured on the premises of his employer, National Beef Packing Company, (National Beef), when a semitrailer driven by an employee of defendant, National Carriers, Inc., (National Carriers) backed over Anderson. The case was tried to a jury as a comparative negligence action. The jury attributed 29 percent fault to Anderson, 22 percent fault to National Carriers and 49 percent fault to National Beef, and found total damages in the amount of $700,000.
The plaintiff appeals and defendant cross-appeals. Plaintiffs contentions are largely centered around National Beefs having paid workers’ compensation to plaintiff and its being included as a phantom defendant, thereby precluding the plaintiff from arguing and the trial court from instructing the jury as to the consequences of workers’ compensation and the relationship between National Beef and National Carriers. Plaintiff also contends the trial court erred in not granting plaintiff s motion for a directed verdict on causation. National Carriers’ cross-appeal contends its truck driver was a borrowed servant insofar as National Beef is concerned, and thus National Carrier is shielded from liability because of the Kansas Workmen’s Compensation Act.
National Carriers and National Beef are wholly owned subsidiaries of Idle Wild Foods, Inc., which is engaged in food processing and distribution. National Beef operates a beef packing plant in Liberal, Kansas. National Carriers leases offices at National Beef s plant site. National Carriers hauls National Beef products over the road and also provides a hostler service at the plant. The hostler service consists of disconnecting the over-the-road tractor from the semitrailer and using a hostler tractor to transport the semitrailers around the plant site for cleaning, parking and loading. National Beef pays a monthly fee to National Carriers for the hostler service. All three entities are insured under the same workers’ compensation insurance policy.
At the time of his injury, the plaintiff was employed by National Beef as a welder in the maintenance department. When the accident occurred, plaintiff was walking across plant grounds, returning to his job site after a job-related errand. National Carrier’s employee, a hostler tractor operator, was backing a trailer to a warehouse loading dock at National Beef s plant when he struck and ran over the plaintiff. The plaintiff received severe pelvic, back and leg injuries caused by the dual wheels of the trailer passing over him.
Testimony at trial revealed that the truck driver could not see plaintiff in the mirrors of his hostler because of a blind spot. The plaintiff was struck from behind and did not see the trailer until after he was hit. The engines and power generators of National Beef s plant are in the area where the accident occurred. They produce a high noise level, making it difficult for anyone to hear. All live cattle and butchered beef are trucked through the area where the accident occurred, and the same area is used by plant employees on foot. No attempt had been made to separate vehicular and pedestrian traffic.
The plaintiff recovered workers’ compensation benefits from his employer, National Beef, and then sued National Carriers for negligence. National Carriers claimed National Beefs negligence contributed to plaintiff s injuries and joined National Beef for comparative fault purposes.
Two questions are presented by defendant’s cross-appeal: (1) Is this negligence action barred by the exclusive remedy provision of the Kansas Workmen’s Compensation Act? (2) Is it error to treat National Beef, plaintiffs employer, as a “phantom party” to determine National Beefs proportionate fault where it has paid workers’ compensation benefits?
The exclusive remedy provision of worker’s compensation law provides that no employer, or other employee of such employer, shall be liable for any injury for which compensation has been provided under the Workmen’s Compensation Act. K.S.A. 44-501. Under this statute, a common-law negligence action cannot be maintained by an injured employee against his employer or a co-employee if the injured employee recovered workers’ compensation benefits from the employer. Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 564 P.2d 521 (1977). However, an injured employee is not barred from suing third- party tortfeasors. K.S.A. 1984 Supp. 44-504(a). Negley v. Massey Ferguson, Inc., 229 Kan. 465, 625 P.2d 472 (1981).
For National Carriers to prevail on the exclusive remedy defense, it has the burden of proof to establish the existence of an employment relationship between it and plaintiff. Orr v. Holiday Inns, Inc., 6 Kan. App. 2d 335, 336-37, 627 P.2d 1193, aff'd 230 Kan. 271, 634 P.2d 1067 (1981). Defendant has failed to establish this relationship. First, the pretrial order stipulates that plaintiff is an employee of National Beef and the hostler operator is an employee of defendant. Second, workers’ compensation benefits were recovered against National Beef, not defendant. The plaintiff is suing National Carriers, not National Beef or its employee.
The factual situation in this case is a subcontracting one. National Beef contracted with National Carriers for the hostler service (hostler tractors and operators), which was provided to National Beef for a monthly charge. Assuming that National Carriers was the subcontractor and National Beef the “principal” (to use the language of K.S.A. 44-503[a]), and that the contractor’s employee, the hostler operator, became a statutory employee of the principal, National Beef, for the purpose of workers’ compensation, it would be of no comfort to National Carriers. K.S.A. 44-503 addresses the situation in which the contractor’s employee is the injured worker. It prevents such an employee from maintaining a common-law action against the principal. His or her exclusive remedy is workers’ compensation. All of the cases applying K.S.A. 44-503(a) and the exclusive remedy defense involve an injured employee of a subcontractor, not of a principal such as in the case at bar. Zehring v. Wickham, 232 Kan. 704, 658 P.2d 1004 (1983); Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976); Hataway v. Procter & Gamble Manufacturing Co., 195 Kan. 335, 405 P.2d 350 (1965); Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239 (1951).
The purpose of K.S.A. 44-503 is to give, employees of a subcontractor a remedy against the principal and to prevent the principal from evading liability by using a subcontractor to do part of the work undertaken by the principal. A principal is relieved of liability for its negligence in causing an injury to a subcontractor’s employee when it has an obligation imposed by the Workmen’s Compensation Act to pay benefits to the injured employee. The act, however, imposes no duty on a subcontractor to pay compensation benefits to an injured employee of the principal unless the principal’s employee is a borrowed servant of the subcontractor when the accident occurs, a fact not present in this case. There is therefore no basis or reason to grant immunity to a subcontractor that negligently inflicts an injury on an employee of a principal contractor.
In determining whether an entity has immunity from a common-law action for liability for personal injuries to a worker under the Kansas Workmen’s Compensation Act, the test is whether a worker can recover workers’ compensation benefits from the employer for an injury. If so, the remedy under the act is exclusive and a common-law negligence action against an employer is barred. Zehring v. Wickham, 232 Kan. 704. If not, the Kansas Workmen’s Compensation Act does not preclude a common-law negligence action against National Carriers. In the case before us, the injured worker could not recover compensation benefits from National Carrier for his injuries; thus, the act does not preclude a common-law negligence action against National Carriers. The plaintiff, therefore, does not qualify as a statutory employee of the defendant and the trial court did not err by holding that National Carrier is a third-party tortfeasor not immune from suit.
The second point of the cross-appeal addresses the trial court’s joinder of the plaintiffs employer, National Beef, in the negligence action to consider its proportionate fault. The plaintiff recovered workers’ compensation benefits from National Beef. National Beef was immune from suit under the exclusive remedy provision of the Workmen’s Compensation Act. K.S.A. 44-501. Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d 491, 498-99, 582 P.2d 300 (1978). Therefore, National Beef cannot be made an actual party to the negligence action or be held liable for its proportionate fault.
National Beef, however, is a necessary party for the purpose of considering and allocating proportionate fault. Kansas’s comparative negligence statute provides:
“On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damages shall be joined as an additional party to the action.” K.S.A. 60-258a(c).
Under this provision, National Beef, although an immune employer, may be joined by the defendant as a “phantom party” for comparison purposes. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). This is true even where the immunity arises by reason of workers’ compensation. Forsythe v. Coats Co., 230 Kan. 553, 639 P.2d 43 (1982); Negley v. Massey Ferguson, Inc., 229 Kan. 465.
A party named as a defendant in a negligence action can join other parties to determine their comparative fault. K.S.A. 60-258a(c); McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, Syl. ¶ 6, 667 P.2d 289 (1983). We conclude that the employer’s retention in the negligence action for mere comparison purposes was proper.
Additional issues raised by plaintiff s appeal concern alleged errors in the trial court. Plaintiff contends that he should have been permitted to disclose to the jury that he recovered workers’ compensation benefits from National Beef.
Plaintiff has cited no Kansas cases wherein evidence of workers’ compensation benefits recovered by an employee was admissible in a negligence action. This question is governed by the collateral source doctrine which prohibits disclosure of additional sources of compensation. The general rule is that workers’ compensation benefits are inadmissible. 22 Am. Jur. 2d, Damages § 209. Kansas is in accord and has so held in Negley v. Massey Ferguson, Inc., 229 Kan. at 473. In Negley, the plaintiffs requested an instruction to point out that the employer had been joined for the purpose of comparison only, that any negligence attributed to the employer could not be collected, and that the plaintiffs were receiving workers’ compensation payments from the employer’s insurance carrier. The Supreme Court held that such an instruction would be improper. Disclosure of workers’ compensation presents the same danger of prejudice as does the disclosure of insurance in other actions. Likewise, an employer’s subrogation lien under K.S.A. 1984 Supp. 44-504(b) of workers’ compensation is inadmissible as an additional source of compensation. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. at 769. Thus, the trial court did not err in excluding evidence of workers’ compensation recovery in the negligence action.
Next, the plaintiff argues that he should have been permitted to explain to the jury why National Beef did not present evidence and defend against the claim of negligence at trial, about National Beef s posture in the negligence action as a phantom party, and the effect of plaintiff s recovery of workers’ compensation upon the negligence action. These disclosures are precisely the same matters on which the plaintiff in Negley requested an instruction. Such an instruction is improper. Negley v. Massey Ferguson, Inc., 229 Kan. at 473.
Moreover, these disclosures are inadmissible on relevancy grounds. The basic rule was recently stated and applied in Allman v. Holleman, 233 Kan. 781, 667 P.2d 296 (1983), wherein the court recognized that all relevant evidence is admissible unless otherwise excepted by statute. K.S.A. 60-407(f). Relevant evidence is defined as evidence that has a tendency in reason to establish a material fact. Schmeck v. City of Shawnee, 232 Kan. 11, 32, 651 P.2d 585 (1982). In the instant case, evidence of the nature of a workers’ compensation relationship and its effect has no bearing on whether the respective parties were at fault and allocating a percentage of fault. Thus, workers’ compensation is not relevant in an action tried on a negligence theory. The trial court did not err in excluding the evidence.
The plaintiff s next point on appeal is the trial court’s denial of plaintiffs motion for a directed verdict as to National Beefs negligence. The plaintiff argues that there was no evidence of a breach of duty by National Beef to support an allocation of fault. Rather, any negligence shown by the evidence could be attributed only to the defendant National Carriers.
The standard of appellate review of a motion for directed verdict requires this court to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984).
National Beef s alleged negligence was in failing to provide a safe work place to its employee, the plaintiff. There is ample evidence from which the jury could infer that National Beef breached its duty. There is also ample evidence to show that this breach was a contributing cause to plaintiff s injury. Testimony was produced at trial relating the busy traffic conditions at National Beef s plant, the noise level and shared vehicle/pedestrian traffic of the same right-of-way.. Evidence of these conditions is such that a jury could reasonably infer an unsafe work place at National Beefs packing plant. Based on the record before us and our standard of review, we are of the opinion that the trial court properly overruled plaintiff s motion for a directed verdict.
We have examined the plaintiff s remaining arguments and find them to be without merit.
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Swinehart, J.:
Defendant Bruce A. Rambo appeals from a jury verdict finding him guilty of aggravated battery.
On June 26, 1983, defendant Bruce A. Rambo and his roommate, Moses D. Bowen, returned from a club to find defendant’s house burglarized. The following day, after contemplating who might have committed the burglary, defendant decided Bowen knew who had stolen defendant’s household goods. Defendant had known Bowen for approximately one month and believed Bowen’s friends had burglarized his home. Defendant confronted Bowen with these beliefs and an argument ensued between the two. Both parties apparently became upset, and Bowen slammed a bar stool down on the floor. As Bowen took hold of a second bar stool, defendant got a rifle and pointed it at him. Bowen threw the second bar stool, and defendant shot him in the abdomen. Soon thereafter, defendant helped Bowen into defendant’s van and drove him to a hospital. Defendant told Bowen to tell the authorities at the hospital that the shooting was accidental. Bowen did so until defendant left his presence, then told a police officer the shooting was not accidental.
Defendant was subsequently arrested and confessed to shooting Bowen. Defendant was charged with aggravated battery and Kent Wirth was appointed as his counsel. Wirth filed a Motion for Examination to Determine Defendant’s Competency. After receiving the doctor’s reports, the district court entered an order of defendant’s incompetency to stand trial. Two months later defendant was returned to the court from Larned State Hospital and was found competent to stand trial. After defendant’s preliminary examination, Wirth filed a Notice of Intention of Insanity Defense. Defendant underwent a mental examination and Wirth filed a second motion for an order to determine incompetency. The district court again found defendant incompetent to stand trial. Defendant wrote a letter to Wirth asking him to withdraw as counsel. Wirth then filed a motion to do so, which the court granted. Thereafter, defendant was represented by the public defender. Three months after the defendant had last been found incompetent, the court examined his medical reports and found him competent to stand trial. Defendant’s trial began approximately one month later.
On the day of trial, the prosecution informed the court in chambers that although examining physicians were of the opinion defendant was insane at the time of the commission of the crime, the public defender had sent a letter to the prosecutor’s office indicating that no insanity defense would be raised. Upon inquiry by the court, the public defender confirmed that information, expressed his decision to waive any defense upon the ground of insanity, and stated he would object to the presentation of any psychological or insanity evidence at trial. The public defender noted that defendant did not wish to raise the insanity defense and had asked his previous counsel to withdraw primarily for having filed the notice of insanity defense.
Defendant testified he shot Bowen in self-defense. He stated that approximately eleven months prior to the shooting he had sustained multiple injuries in an airplane crash and that Herrington rods had been surgically implanted in his back. Those rods were still in his back at the time of the shooting and impaired defendant’s physical mobility.
The jury found defendant guilty of aggravated battery.
Defendant first argues that the trial court abused its discretion by failing to inquire into the defendant’s mental condition at trial, by allowing the public defender to waive the insanity defense, and by failing to grant a new trial on its own motion after learning of a psychiatrist’s opinion that defendant was insane on the date of the crime. Defendant makes no claim of ineffective assistance of counsel.
The basic principles here involved are not in dispute.
“The question of the competency of any defendant tried for a felony is a most vital matter. It is the policy of the law of this state not to try persons while they are insane. Our statute, G.S. 1949, 62-1531, and our decisions, State v. Ossweiler, 111 Kan. 358, 207 Pac. 832; State v. Brotherton, 131 Kan. 295, 302, 291 Pac. 954; State v. Lammers, 171 Kan. 668, 237 P.2d 410, and State v. Severns, 184 Kan. 213, 336 P.2d 447, contemplate that when an accused is afflicted with any of the types of insanity or mental disability specified in the statute, or any claim is made in his behalf that he is so afflicted, either before, or during the trial and before the verdict is rendered, it becomes the duty of the court and counsel of record to ascertain by one of the statutory methods whether he is in a fit mental condition to be proceeded against. It is a basic requirement of our law that a proper determination of the competency of the defendant should be made in every case where a real doubt is raised as to his competency.” State v. Kelly, 192 Kan. 641, 643, 391 P.2d 123 (1964).
Both our statutory scheme and our decisional law place a duty upon the trial court to, under certain circumstances, ascertain whether a defendant is competent to stand trial. See K.S.A. 1984 Supp. 22-3302; Outland v. State, 219 Kan. 547, 548, 548 P.2d 725 (1976); State v. Kelly, 192 Kan. at 644-45. The law is less clear concerning the duty of a trial court to ascertain, on its own motion, whether a defendant was insane at the date of the offense.
Although this issue has not been squarely addressed in Kansas, cases outside our jurisdiction have examined the court’s duty to impose the insanity defense upon a defendant over his objections. It is generally recognized that when there is a “sufficient question” as to a defendant’s mental responsibility at the time of the crime, that issue must become a part of the case. Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965). See United States v. Robertson, 430 F. Supp. 444, 446 (D.D.C. 1977). In holding that the court should not sua sponte impose an insanity defense in Robertson, the court listed the following factors as relevant to that decision:
“[Tjhe quality of the evidence supporting the insanity defense; the defendant’s wish in the matter; the quality of defendant’s decision not to raise the defense; the reasonableness of defendant’s motives in opposing presentation of the defense; and the Court’s personal observations of the defendant throughout the course of the proceedings against him.” United States v. Robertson, 430 F.Supp. at 446.
In examining the first of those factors, the Robertson court stated:
“There is evidence in the record which could be used to argue that the defendant was suffering from a mental disease or defect at the time of the offense. However, there is also substantial evidence leading to a contrary conclusion. The Whalem case requires a trial judge to refuse ‘to allow the conviction of an obviously mentally irresponsible defendant.’ 346 F.2d at 818. That decision does not require sua sponte imposition of the insanity defense every time there is enough evidence in a case to make the defense tenable.” 430 F.Supp. at 446.
The court noted that defendant’s wish not to invoke the insanity defense was “highly relevant,” and found that decision to have been made rationally and with an awareness of its consequences.
Similarly, United States v. Wright, 627 F.2d 1300 (D.C. Cir. 1980), held that the trial court did not abuse its discretion in failing to raise an insanity defense sua sponte over defendant’s objection. There, although defendant’s capacity to conform his conduct to the requirements of the law was doubtful, sound reasons existed for the decision not to raise the defense.
In reaching that conclusion, the court stated:
“ ‘No rigid standard exists to control the District Court in deciding whether it should require the insanity issue to be submitted. As a matter within the sound discretion of the district court, this question must be resolved on a case by case basis.’ To date, we have never overturned a district court determination on this issue. Nor have we accepted guidelines proposed to limit district court discretion. The reason for this continuing trust in the judgment of the district court is simple: the assessment of grounds for interposing the insanity defense is so factbound, so dependent on nuances of experts’ credibility and the defendant’s presentation of himself, that the familiarity of the trial court is central to a sound decision.” United States v. Wright, 627 F.2d at 1307.
With the above principles in mind, we review the record in the present case to determine whether there was a combination of factors which required the trial court to inject the insanity issue.
The record includes a written report of Dr. Howard Brodsky, a psychiatrist. That report concludes that in Dr. Brodsky’s opinion the defendant was insane at the time he shot Mr. Bowen. No other expert opinions in the record either support or refute that conclusion. The only other indication that the defendant was suffering from a mental disease or defect was defendant’s testimony elicited on cross-examination that at some time, not designated in the record, and for some purpose, not revealed in the record, he had seen two psychiatrists. No other factors point toward defendant’s insanity.
Throughout the various stages of his trial, defendant consistently expressed his clear desire that the insanity defense not be invoked. Defendant felt so strongly about that decision that he asked his first attorney to withdraw, primarily for having filed a notice of insanity defense. Defendant’s second attorney, the public defender, decided to abide by his client’s wishes against presenting the defense. The record in no way reflects that any of the various counsel who have to date represented the defendant have had any difficulty in communicating with the defendant or in obtaining his assistance in the presentation of his case. There have been no charges and there is no evidence that counsel misrepresented the defendant in any way during the trial.
Defendant’s insistence upon waiving his insanity defense, in the context of the time at which the decision was made, appeared to be in his own best interest. Defendant’s claim of self-defense, if successful, would prevent defendant’s criminal incarceration and defendant’s civil commitment. Even if that defense were unsuccessful, there are sensible, logical reasons for assuming the defendant would prefer a finite criminal sentence rather than an indeterminate commitment following an acquittal by reason of insanity.
Finally, the district court had several opportunities to observe defendant in the courtroom before deciding not to interpose the defense.
Considering the above factors, we find no abuse of discretion in the trial court’s refusal to interpose the insanity defense over defendant’s objection. Nor do we see any error in the trial court’s allowing the public defender to waive that defense. The right to assert the insanity defense is not such an inherently personal fundamental right that it can be waived only by the accused and not by his attorney. Vessels v. Estelle, 376 F.Supp. 1303 (S.D. Tex. 1973), aff'd 494 F.2d 1295, cert. denied 419 U.S. 969 (1974). Defendant’s claim of error concerning the trial court’s failure to grant a new trial on its own motion was not briefed on appeal, and is considered abandoned. State v. Words, 226 Kan. 59, 63, 596 P.2d 129 (1979).
Defendant next argues that the trial court erroneously admitted evidence of defendant’s previous psychiatric treatment. The public defender, having waived the insanity defense, wished to present defendant’s testimony as a model of clarity and accuracy of perception so as to bolster defendant’s claim of self-defense. Accordingly, the public defender wished to exclude any reference to defendant’s previous mental treatment, from which the jury may have inferred defendant’s lack of clear thought.
Upon direct examination, defendant testified to his airplane accident and subsequent recuperation, his acquaintance with Bowen, and the events immediately surrounding the shooting. No mention was then made of defendant’s psychiatric treatment which commenced after the airplane crash. On cross-examination, the prosecution asked whether defendant had seen Dr. Gary Porter as a result of his accident. Defendant’s counsel then objected and the jury was retired to the jury room. The public defender explained that he objected to psychiatric testimony on several grounds, all of which the court overruled. The trial court stated that the defendant had “raised this issue” by defendant’s testimony and by his cross-examination of a State’s witness. The trial court expressed that conflicting testimony had been presented of the shooting incident, and that defendant’s previous psychiatric treatment may shed some light upon defendant’s perception of events and the reasonableness of his beliefs and actions. The jury returned and the prosecution elicited from the defendant the fact that defendant had seen two psychiatrists after his airplane crash.
The extent to which cross-examination of a witness may be allowed is in the sound discretion of the trial court and, unless prejudice or abuse of discretion is shown, there will be no reversal. State v. Hutchinson, 222 Kan. 365, 564 P.2d 545 (1977); State v. Guffey, 205 Kan. 9, 17, 468 P.2d 254 (1970). Where the defendant partially explains a subject on direct examination, the prosecutor on cross-examination may explore that subject further. State v. Bagby, 231 Kan. 176, Syl. ¶ 5, 642 P.2d 993 (1982). In the present case, the defendant testified on direct examination about his airplane accident and physical rehabilitation, but made no mention of his subsequent mental treatment. No abuse of discretion has been shown in the trial court’s finding that the broad subject of defendant’s recuperation had been only partially explained on direct examination. Defendant’s claim of prejudice is unpersuasive, in light of the fact that defendant’s counsel at trial made no attempt to explain defendant’s psychiatric treatment, or the reasons therefor, to the jury by redirect examination.
Defendant’s final argument on appeal concerns the propriety of the jury instructions on defendant’s claim of self-defense.
The self-defense instruction, as given by the trial court to the jury, states:
“A person is justified in the use of force against an aggressor when, and to the extent it appears to the person and the person reasonably believes that such conduct is necessary to defend the person against such aggressor’s imminent use of unlawful force.
“A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable person to that belief. In order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend one’s self and, also, show the existence of facts that would support such belief in the mind of a reasonable person. The use of excessive force may be found to be an ‘unlawful manner’ of committing the ‘lawful act’ of self-defense. A defendant may use the degree of force which reasonably appears to be necessary to repel an attack.”
Defendant’s counsel timely objected to this instruction on grounds different than those raised on appeal. Therefore, our scope of review is limited to a determination of whether this instruction is “clearly erroneous.” K.S.A. 22-3414(3); State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983); State v. Price, 233 Kan. 706, 664 P.2d 869 (1983). “ ‘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.’ ” State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983).
The language of the given instruction is apparently derived from the following sources:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.” State v. Simon, 231 Kan. 572, 575, 646 P.2d 1119 (1982); PIK Crim.2d 54.17.
“[I]n order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of some facts that would support such belief.” State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977).
“The use of excessive force may be found to be an ‘unlawful manner’ of committing the ‘lawful act’ of self-defense . . . .” State v. Warren, 5 Kan. App. 2d 754, Syl. ¶ 2, 624 P.2d 476, rev. denied 229 Kan. 671 (1981).
“A defendant may use the degree of force which reasonably appears to be necessary to repel an attack . . . .” State v. Cates, 223 Kan. 724, 728-9, 576 P.2d 657 (1978).
The given instruction is fully supported by the above-cited authorities and is not erroneous.
Next, defendant argues the court erred in failing to give the following two requested instructions:
“a. ‘Where there is great disparity of strength between the two, death or great bodily harm is possible without any weapon, and circumstances may justify deadly force to repel such an attack.’
“b. ‘If a reasonable person with defendant’s qualities is reasonably induced, and in good faith does, believe that another is about to assault and injure him, the defendant need not wait until the assault is made, but may act upon appearances, as he in good faith at the time regards them, and defend himself.’ ”
Defendant’s counsel admits that the purpose of these instructions was to emphasize “the unique nature of the defendant’s physical disabilities.” The trial court’s basis for not giving these two proposed instructions was that the instructions were argumentative and purported to state as facts matters which the jury must decide as a trier of fact. A careful reading of the two instructions supports the trial court’s conclusion.
It is well recognized that “[i]nstructions should be general in nature insofar as possible, and should not be argumentative or unduly emphasize one particular phase of the case.” Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 3, 591 P.2d 154 (1979); Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972). The first proposed instruction unduly emphasizes one particular aspect of the total evidence presented to the jury, namely, that the defendant had rods in his back at the time of the shooting. The second proposed instruction does the same by referring to “a reasonable person with defendant’s qualities.” The jury had been made aware of the defendant’s back rods by the testimony at trial. The jury also had an opportunity to view both the defendant and Bowen and examine their respective heights and weights. No additional emphasis on the defendant’s or Bowen’s size or strength was required.
The trial court’s refusal to give the two proposed instructions which focused upon defendant’s physical condition at the time of the shooting was proper.
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Swinehart, J.:
This appeal arises from a dispute between neighbors concerning the location of a garage.
James A. and Betty A. McDonald, plaintiffs, own and reside upon a lot in the Westridge Addition of Emporia. Benedict J. and Virginia L. Janacek, defendants, own a lot in that same addition. Prior to beginning construction on their lot, the Janaceks had actual notice of the City’s 30-foot setback requirement and constructive notice of a restrictive covenant’s 30-foot setback requirement and advised their builder thereof. Mr. Janacek and his builder assumed the thirty feet were to be measured from the street curb which they thought was set out on the plat. The line set out on the plat is actually the property line and not the street curb line. As a result, the foundation of the Janaceks’ garage encroached upon the 30-foot setback requirement by over seven feet.
Upon discovering the violation, the Janaceks applied for a variance from the City’s setback requirements. A hearing was held before the Emporia-Lyon County Joint Board of Zoning Appeals (the Board) at which the Board noted its lack of jurisdiction over restrictive covenants, but granted the Janaceks a 7'3" variance from the City’s 30-foot setback requirement.
The next day the Janaceks continued construction of the garage. The McDonalds subsequently filed a petition seeking to set aside the Board’s decision, and to obtain an injunction requiring the Janaceks to remove the portion of the garage which violated the restrictive covenant.
The trial court found a violation of the restrictive covenant setback provision, granted the McDonalds’ motion for summary judgment, and ordered the Janaceks to remove the offending portion of their garage. The Janaceks now appeal that decision. The trial court also granted the Board’s motion for summary judgment against the McDonalds after finding that the Board acted “lawfully and reasonably” in granting the Janaceks a variance. The McDonalds appeal that decision.
The Janaceks first argue that the district court erred in granting the McDonalds’ motion for summary judgment, claiming that the variance in the setback by the Board also changes the setback in the restrictive covenant.
A motion for summary judgment under the provisions of K.S.A. 60-256(c) is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Busch v. City of Augusta, 9 Kan. App. 2d 119, 122-23, 674 P.2d 1054 (1984).
The Janaceks knew of the restrictive covenants and of the 30-foot setback requirement prior to the construction of their garage. The Janaceks do not dispute that prior to their obtaining a variance from the Board, they were in violation of both the City’s setback requirement and the restrictive covenant in issue. No genuine issue of material fact remains. Rather, the sole question is one of law: whether a setback variance granted by the proper municipal authorities has any effect upon a setback established in a restrictive covenant.
Research has revealed no Kansas case on point. However, it is generally recognized that:
“Restrictive covenants do not supersede or in any way affect the requirements of an already existing zoning ordinance, and, conversely, a zoning ordinance cannot destroy, impair, abrogate, or enlarge the force and effect of an existing restrictive covenant. Zoning ordinances, if less restrictive, do not diminish the legal effect of private restrictive covenants.” 82 Am. Jur. 2d, Zoning and Planning §4.
20 Am. Jur. 2d, Covenants, Conditions, etc. § 277. Hines Corp. v. City of Albuquerque, 95 N.M. 311, 621 P.2d 1116 (1980). Restrictive covenants “are a matter of contract creating rights in the nature of servitudes or easements, whereas zoning regulations constitute a governmental exercise of the police power and must bear a substantial relation to the public health, safety, morals, or general welfare.” 82 Am. Jur. 2d, Zoning and Planning § 4.
The relation between zoning ordinances and restrictive covenants was examined in Singleterry v. City of Albuquerque, 96 N.M. 468, 470-71, 632 P.2d 345 (1981), which stated:
“It is well established that zoning ordinances cannot relieve private property from valid restrictive covenants if the ordinances are less stringent. Ridge Park Home Owners v. Pena, 88 N.M. 563, 544 P.2d 278 (1975). . . .
“In In Re Micheners Appeal, [382 Pa. 401, 115 A.2d 367 (1955)] the court stated:
“ ‘Zoning laws are enacted under the police power in the interest of public health, safety and welfare; they have no concern whatever with building or use restrictions contained in instruments of title and which are created merely by private contracts. If these applicants were to succeed in obtaining a variance relieving them from the restrictions of the zoning ordinance they would still be subject to the restrictions contained in their deeds, but the enforcement of those restrictions could be sought only in proceedings in equity in which the grantors, their representatives, heirs and assigns, would be the moving parties.1 [Micheners], 382 Pa. 401, 115 A.2d at 369.” (Emphasis supplied.)
One Ohio case examined the issue under factual circumstances similar to those present before this court. In Myers v. Smith, 112 Ohio App. 169, 171 N.E.2d 744 (1960), Mr. Smith wished to construct an attached garage which would be within one foot of the side lot line. A restrictive covenant applicable to the property established a five-foot side setback restriction.
Mr. Smith received a variance from the City’s three-foot setback from the Cuyahoga Falls, Ohio, zoning authority. The Ohio Court of Appeals stated:
“The fact that Smith received permission from the city zoning authorities for a variance of the three-foot setback from a lot side line is not controlling in the face of a valid building restriction contained in an allotment plan. The zoning authority has no power to change or vary covenants running with the land if the covenants are otherwise valid.” (Emphasis supplied.) Myers v. Smith, 112 Ohio App. at 171.
Accordingly, the court granted an injunction requiring Mr. Smith to remove the encroaching section of the garage.
We find the reasoning expressed in the above-cited cases to be persuasive. We uphold the trial court’s conclusion that the grant of the variance had no effect upon the restrictive covenant and affirm its grant of summary judgment.
The Janaceks’ final argument on appeal is that the trial court abused its discretion in ordering them to remove the portion of the garage which encroached into the 30-foot setback.
“ ‘Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court and is to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, the appellate court will not interfere.’ McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 1 [596 P.2d 167 (1979)].” Schartz v. D R B & M Real Estate Partnership, 5 Kan. App. 2d 625, 627-28, 621 P.2d 1024, rev. denied 229 Kan. 671 (1981).
We have examined each of the specific claims raised by the Janaceks but find no affirmative showing of abuse of discretion. The trial court’s remedy was not inequitable.
The third argument on appeal is raised by the McDonalds, who claim the trial court erred in upholding the decision of the Board in granting a variance to the Janaceks. We find it unnecessary to address this issue in light of our previous finding that the restrictive covenants remain in effect despite the Board’s granting of a variance. Our determination of whether the variance was properly or improperly granted will have no practical effect upon the outcome of the case. See Blank v. Chawla, 234 Kan. 975, 678 P.2d 162 (1984); Reeves v. Board of Johnson County Comm’rs, 226 Kan. 397, 602 P.2d 93 (1979). We determine this issue to be moot.
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Rees, J.;
In this negligence action, plaintiff Wilford B. Mastín appeals from a summary judgment entered against him on his claim for damages suffered as the result of the operation of his combine under a sagging Kansas Power & Light Company (KP&L) power line. The dispositive issue is whether there exists a genuine issue as to the material fact of defendant KP&L’s pre-accident knowledge that its line sagged excessively so as to preclude entry of summary judgment. We reverse.
In the early evening of July 2, 1981, Mastín was combining wheat on his property in rural Shawnee County. He was injured when he drove his combine under a KP&L high voltage power line that sagged excessively and the CB radio antenna attached to his combine came in contact with the line.
Mastín alleged in his petition that KP&L maintained the power line in a negligent manner. In its answer, KP&L denied “that it knew or should have known of any negligence in the maintenance of said power line.” By written interrogatory, KP&L asked that Mastín state the facts upon which he relied to substantiate his allegation and that plaintiff identify who would substantiate those facts. In answer to the interrogatory, Mastín stated that “Defendant was aware of the condition since it had been reported to Defendant prior to the incident.” He identified David Stoll as the person upon whom he relied to substantiate that fact.
Mastin’s deposition was subsequently taken by KP&L. In it, Mastín testified that in a conversation he had with Stoll after the accident, Stoll “stated to me that he had reported that low power line before this happened”; that Stoll “said he noticed the power lines low and he had reported it, that’s what he told me, to KP&L.”
KP&L moved for summary judgment. It conceded that the line in question was four or five feet too low but it argued that that fact standing alone did not establish negligence on its part. KP&L contended it had no actual or constructive notice of excessive sag in the line prior to Mastin’s accident.
With its motion for summary judgment KP&L filed an affidavit executed by its local division superintendent, J. V. Eakins, in which Eakins stated “KPL had no notice or knowledge of the condition of [the] power line involved in the accident prior to the plaintiffs contact with the line.” In its summary judgment memorandum, KP&L stated that it “has denied plaintiff s claims and denies liability because inter alia it had no notice of the condition of the power line prior to the incident which is the subject of the litigation.” Citing Eakins’ affidavit, it stated as claimed uncontroverted facts that “[p]laintiff has no evidence to offer that [KP&L] had any notice of the condition of the line prior to the accident” and that KP&L “had no notice or knowledge of the condition of the power line involved in the accident prior to the plaintiff s contact with the line.”
In his response to KP&L’s memorandum, and citing his own deposition, Mastín controverted those claimed uncontroverted facts saying in part that “Mr. Stoll told Mr. Mastín that before the incident of July 2, 1981, he had noticed the power lines in question were low and he reported this condition to KP&L.” He forthrightly conceded that “Mr. Stoll’s version of the conversation is that he noticed the power lines in question were too low, but did not notify KP&L.” That concession was the product of a statement in an affidavit given by Stoll that “[p]revious to Mr. Mastin’s accident, I noticed the power lines which Mr. Mastín has indicated he ran into seemed too low, but I did not notify the Kansas Power and Light Company.” (Commendably, Mastin’s counsel disclosed this affidavit of Stoll’s to the trial judge and defense counsel. It had been executed long after Mastin’s deposition was taken.)
After reviewing the pleadings, the deposition, the answers to interrogatories and the affidavits, the trial judge found that Mas-tin had “brought forth no evidence of negligence on the part of [KP&L]”; that Mastín “has only alleged the power line was ‘too low’ ”; and that Mastín has “no evidence to show that [KP&L] had notice of the condition of the line, either actual or constructive, prior to the accident.” The trial judge concluded that the “record shows no genuine issue as to any material fact exists” and entered summary judgment in favor of KP&L.
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 260-61, 662 P.2d 1203 (1983). In a negligence case, the presence or absence of negligence is ordinarily not a question for judicial resolution on summary judgment. Resolution of the question ordinarily is for determination by the trier of fact. It is only when it can be said that reasonable persons cannot reach differing conclusions from the same evidence that a material fact question may be decided as a matter of law. Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, 482, 575 P.2d 507 (1978); Every v. Jefferson Ins. Co. of N.Y., 4 Kan. App. 2d 715, 717, 610 P.2d 645 (1980). When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing that party his day in court. McAlister v. Atlantic Richfield Co., 233 Kan. at 257.
The scope of the duty of electric utility companies such as KP&L has been set forth many times in the opinions of our Supreme Court. Companies which erect and maintain lines for the transmission of electricity are under a duty to exercise the highest degree of care to protect the public from danger. E.g., Powers v. Kansas Power & Light Co., 234 Kan. 89, 96, 671 P.2d 491 (1983); Worley v. Kansas Electric Power Co., 138 Kan. 69, 23 P.2d 494 (1933). The care required of electricity distributors is that care which would be exercised by prudent persons engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the plant, to guard against contingencies which can be reasonably foreseen and anticipated, but such distributors are not liable for occurrences which cannot be reasonably anticipated and they are not insurers against accidents and injuries. E.g., Wilson v. Kansas Power & Light Co., 232 Kan. 506, 510, 657 P.2d 546 (1983); Murphy v. Central Kansas Electric Cooperative Ass’n, 178 Kan. 210, 284 P.2d 591 (1955). The rationale for holding electricity distributors to such a stringent standard of care focuses on the dangerousness of the instrumentality:
“A high-voltage power line is one of the most dangerous things known to man. Not only is the current deadly, but the ordinary person has no means of knowing whether any particular wire is carrying a deadly current or is harmless.” Henderson v. Kansas Power & Light Co., 184 Kan. 691, 695, 339 P.2d 702 (1959).
In this case, the propriety of the entered summary judgment hinges upon whether the conflicting statements concerning preaccident notice to KP&L of the power line’s condition create a genuine issue on the material fact of KP&L’s pre-accident knowledge. Since Mastín in his argument does not imply — nor permit us to infer — that KP&L negligently created the excessive sag in the line, proof that KP&L was negligent requires a showing it had actual or constructive notice of the dangerous condition. Cf. Little v. Butner, 186 Kan. 75, 81, 348 P.2d 1022 (1960).
On the question whether KP&L had pre-accident actual or constructive notice, it is clear to us that the hearsay evidence presented in Mastin’s deposition — Mastin’s recitation of Stoll’s declaration that he had notified KP&L that its line was low— created a genuine issue as to that material fact. Our conclusion is supported by the rule requiring that the record must be viewed in the light most favorable to Mastín. Barnhart v. McKinney, 235 Kan. 511, 516, 682 P.2d 112 (1984). But did Stoll’s affidavit stating that he did not notify KP&L automatically and wholly disprove the truth of the matter stated in the reported declaration? On this question, the substance of KP&L’s position on appeal is that Stoll’s personal refutation of the reported declaration (that Stoll notified KP&L of the low line) destroys any claim by Mastin that there is evidence that KP&L had pre-accident notice of the low line. What KP&L has argued to us, and all that it has said in this regard, is that:
“Plaintiff s self-serving statement of his recollection that Stoll had told him he had reported the condition contrasted with Stoll’s sworn testimony that he did not report the condition prior to the accident does not raise any material fact issue, as plaintiff argues: plaintiff eliminated the issue of notice with the evidence he offered.”
Why is that necessarily so? KP&L does not enlighten us; it offers no supporting explanation or authority.
Under Kansas hearsay evidence rules, Mastin’s testimony that Stoll said he notified KP&L could be admissible hearsay evidence in the nature of affirmative proof that KP&L had notice. K.S.A. 6Q-460(a) (evidence of previous statements of a declarant present and available for cross-examination is admissible hearsay evidence); 4 Vernon’s Kansas C. Civ. Proc. § 60-460, pp. 415-16 (1965); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460, p. 230 (1979). Stoll’s affidavit, which conflicts with the hearsay evidence in Mastin’s deposition, left for jury resolution the question whether KP&L had actual pre-accident notice from Stoll. 4 Vernon’s Kansas C. Civ. Proc. § 60-460, pp. 415-16. There is no basis to find as a matter of law that the truth lies in the sworn admissible statement of Stoll rather than in Mastin’s sworn admissible report of Stoll’s declaration, or vice versa. To find either way would require the trial judge and us to pass on credibility and to balance and weigh evidence, action that the trial judge and we must not engage in on summary judgment motions. Caplinger v. Carter, 9 Kan. App. 2d 287, 293, 676 P.2d 1300, rev. denied 235 Kan. 1041 (1984).
In short, “[s]ummary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial.” Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980).
The conflicting sworn statements of Stoll and Mastin leave a genuine issue as to the material fact question whether KP&L had notice of the concededly low line. Summary judgment was incorrectly entered. Lostutter v. Estate of Larkin, 235 Kan. at 164.
Reversed. | [
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Foth, C.J.:
This is an interlocutory appeal taken by the State from the district court’s order suppressing the results of the defendant’s blood test on the basis of the physician-patient privilege under K.S.A. 60-427.
On May 26, 1984, Butler County Sheriff s officers, responding to a report of a one-car accident on Highway 96, located a wrecked car just off the highway. Upon arriving at the accident site, these officers learned that the driver of the car was not at the scene of the accident. This information was radioed to other officers responding to the accident. One of these additional officers, while driving to the scene, saw a man, later identified as the defendant, Richard Pitchford, walking through a pasture sixty to seventy yards south of the highway. Believing that the man might be the driver, the officer shouted at him to stop. Rather than stopping, the man ran. The officer radioed for assistance and gave chase.
The officer caught Pitchford and, after a struggle, wrestled him to the ground. Pitchford, who had alcohol on his breath, was wheezing and bleeding badly from lacerations to his head and arm. After other officers arrived, they attempted to stop the bleeding, but Pitchford combatively resisted all efforts to render medical aid. When he continued to struggle and resist medical assistance, the officers handcuffed him and drove him back to the highway, where he was transferred to an ambulance which took him to the hospital,
Once at the hospital, Pitchford violently resisted the emergency room doctor’s (Dr. McGovern) attempts to stitch his wounds. Apparently unsure of the cause of this combativeness, the doctor ordered a blood test to determine what Pitchford “had in his system.” An officer who had accompanied Pitchford to the hospital then asked whether he could obtain a copy of the blood test results; this request was granted by the doctor. The test indicated Pitchford’s blood alcohol content was 0.226 percent.
Pitchford was charged with driving under the influence of alcohol, driving left of center, driving without valid tags, and resisting arrest. He subsequently moved to suppress the results of the blood test. The district court initially denied this motion but, upon reconsideration, it ruled that the physician-patient privilege precluded the State from introducing results of the test into evidence. The State now brings this interlocutory appeal.
We are met at the outset by the defendant’s claim that this court has no jurisdiction. The State, under K.S.A. 22-3603, may take an interlocutory appeal from a pretrial suppression order which substantially impairs the State’s ability to prosecute the case. State v. Newman, 235 Kan. 29, 34-35, 680 P.2d 257 (1984). Here, the suppressed test showed the defendant had a blood alcohol content of 0.226 percent; proof that an accused has a blood alcohol content of 0.10 percent or more makes out a prima facie case of driving under the influence of alcohol. K.S.A. 8-1005(a)(2). If the test results are admissible, the State’s case is a strong one; if the test results cannot be introduced, it is substantially weakened. We conclude that we have jurisdiction, and turn to the merits.
The State argues that the physician-patient privilege does not apply in this case because (1) the defendant was not a patient, and (2) the examining doctor was not the defendant’s personal physician. These arguments have no merit.
We note preliminarily that K.S.A. 8-1001, the Kansas implied consent statute, does not apply to these facts. Before the provisions of K.S.A. 8-1001 can be invoked, a person suspected of driving under the influence of alcohol must be arrested and the arresting officer must ask the arrestee to submit to a blood or breath test. K.S.A. 8-1001; State v. Gordon, 219 Kan. 643, 647, 549 P.2d 886 (1976); State v. Mezins, 4 Kan. App. 2d 292, 294, 605 P.2d 159, rev. denied 227 Kan. 928 (1980). Here, though the defendant certainly was in custody (he was in handcuffs and not free to go), the sheriff s officers neither arrested him nor asked him to submit to a blood test. Furthermore, the defendant did not consent to the blood test. Blood or breath tests under K.S.A. 8-1001 may only be administered if the arrestee consents.
The district court suppressed the evidence of the defendant’s blood test because it found the physician-patient privilege precluded introduction of such evidence. K.S.A. 60-427 provides in part:
“(a) As used in this section, (1) ‘patient’ means a person who, for the sole purpose of securing preventive, palliative, or curative treatment,' or a diagnosis preliminary to such treatment, of his or her physical or mental condition, consults a physician, or submits to an examination by a physician; (2) ‘physician’ means a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802 in the state or jurisdiction in which the consultation or examination takes place; (3) ‘holder of the privilege’ means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient; (4) ‘confidential communication between physician and patient’ means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.
“(b) Except as provided by subsections (c), (d), (e) and (f) of this section, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that (1) the communication was a confidential communication between patient and physician, and (2) the patient or the physician reasonably believed the communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (3) the witness (i) is the holder of the privilege or (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (iii) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician’s duty of nondisclosure by the physician or his or her agent or servant and (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for him or her.”
“The purpose of the statute is to encourage persons needing medical aid to seek it without fear of betrayal, not to disqualify physicians as witnesses. The privilege, being in derogation of the common law, should be strictly construed, and should not be construed to apply to matters ‘not coming clearly within its provisions.’ [Citations omitted.]” State v. George, 223 Kan. 507, 510, 575 P.2d 511 (1978). Before the statutory privilege may be sustained, three requirements must be met: (1) There must be a “patient” (who in this case would be the “holder of the privilege”) and a “physician”; (2) there must be a “confidential communication between physician and patient”; and (3) either the physician or the patient must have “reasonably believed the communication necessary or helpful to enable the physician” to treat or diagnose the patient’s condition. State v. George, 223 Kan. at 510.
Putting aside for the moment the question of whether or not the defendant was a “patient,” it is clear that, if he was, the latter two requirements are met in the case at bar. “Confidential communication between physician and patient” includes information obtained by the doctor through an examination of the patient. K.S.A. 60-427(a)(4); State v. George, 223 Kan. 507, Syl. ¶ 1. The blood test ordered here was an examination of the patient, the results were a “confidential communication,” and thus the second requirement was met. See Gonzenbach v. Ruddy, 645 S.W.2d 27 (Mo. App. 1982); Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977).
Dr. McGovern’s purpose in ordering the blood test was to determine what the defendant “had in his system.” Although the doctor did not testify at the suppression hearing, he obviously believed the defendant was under the influence of alcohol or drugs and wanted more information. This information would be helpful in the treatment of the defendant’s drug or alcohol-induced condition. In addition, this information may have been helpful in enabling the doctor to prescribe any medication needed to ease the defendant’s pain or slow his bleeding. Cf. State v. Townsend, 146 Kan. 982, 73 P.2d 1124 (1937) (information not related to the injury, and thus unnecessary for treatment, is not privileged). Thus, the third condition was met: the examination was reasonably believed to be helpful to the physician in treatment or diagnosis.
The real controversy is over the first of the three requirements. The State concedes Dr. McGovern was a “physician,” but first argues that the privilege should not apply because he was not the defendant’s personal physician. The State is correct in asserting that no privilege exists when the examining doctor is a “disinterested” physician. See Williams v. Hendrickson, 189 Kan. 673, 676-77, 371 P.2d 188 (1962); 81 Am. Jur. 2d, Witnesses § 241. A “disinterested” physician, however, is a doctor who examines a person without intending to offer treatment or advice. See Williams v. Hendrickson, 189 Kan. at 676-77; State v. Berry, 324 So. 2d 822, 828 (La. 1975), cert. denied 425 U.S. 954 (1976); State v. Hollingsworth, 263 N.C. 158, 160-61, 139 S.E.2d 235 (1964). Here, Dr. McGovern ordered the blood test for purposes of treatment. Though not the defendant’s personal physician, McGovern was an “interested” physician. Cf. 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 160 (a doctor in a hospital enters into a physician-patient relationship with every patient brought into the hospital).
The State’s main argument is that the defendant was not a “patient” because he neither consulted the physician nor voluntarily submitted to the physician’s examination. K.S.A. 60-427(a)(1) defines patient as “a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his or her physical or mental condition, consults a physician, or submits to an examination by a physician.” A strict and narrow reading of the statute might support the State’s position. The defendant violently resisted medical treatment by both the police and the hospital staff. He did not seek treatment; the sheriff s officers, after handcuffing the defendant, had him transported to the hospital. The officers, and not the defendant, decided medical assistance was needed.
The State’s literal reading, however, would render the physician-patient privilege inapplicable to many persons needing medical treatment the most. Persons brought to a hospital unconscious, in severe shock, or otherwise unable to consult or submit to a doctor would not be “patients” under the State’s interpretation. Neither would persons involuntarily committed to various mental health institutions where the sole object is involuntary treatment. Such an interpretation is unreasonable and is not mandated by the statute. “The rule of privilege may apply where a physician attends a person for the purpose of giving professional aid even though the person attended is unconscious or unaware of his presence, does not consent, or actually objects to being treated.” 97 C.J.S., Witnesses § 294(e); see Branch v. Wilkinson, 198 Neb. 649 (blood test evidence was privileged although the patient was unconscious when blood drawn); cf. State, In Interest of M.P.C., 165 N.J. Super. 131, 137, 397 A.2d 1092 (1979) (interpreting a statute nearly identical to ours, the court concluded that no privilege existed when police took a suspected drunk driver to the hospital both to receive treatment and to obtain evidence of the driver’s blood alcohol content).
Determining whether the defendant was a “patient” does not turn on whether he voluntarily consulted a physician. The controlling fact is that the defendant was taken to the hospital for purposes of treatment. See McCormick on Evidence § 99, p. 247, n. 4 (3rd ed. 1984). Here, the officers’ testimony indicates they believed the defendant needed medical aid; acting on this belief, they transported him to the hospital. Once at the hospital, Dr. McGovern treated the defendant. For purposes of K.S.A. 60-427, the defendant was a “patient.” Cf. Linscott v. Hughbanks, 140 Kan. 353, 37 P.2d 26 (1934) (patient admitted to state mental hospital involuntarily; despite this, the court concluded information obtained in examinations conducted for purposes of diagnosis and treatment was privileged).
We conclude that defendant was a patient, the blood test was a communication, and the test was secured for the purpose of diagnosis and treatment. The test results were therefore privileged, and the trial court did not err in suppressing them.
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BRISCOE, J.:
Larry D. Evans, the defendant, appeals his third conviction of driving with a suspended license, K.S.A. 1983 Supp. 8-262.
The case was submitted to this court on an agreed statement of facts. A summary of the pertinent facts is as follows;
The defendant was convicted of driving with a suspended license in the Coffeyville Municipal Court in February, 1978. He was convicted a second time in September, 1981, in the District Court of Kingman County.
The Division of Vehicles suspended the defendant’s license from June 15, 1983, until October 27, 1983. The Division sent notice of the suspension by regular mail to the defendant’s last known mailing address on June 15.
The defendant was arrested for driving with a suspended license on October 20, 1983. At trial, he argued he had not received the notice of suspension, arid therefore lacked any criminal intent. The trial court ruled that K.S.A. 1983 Supp. 8-262 did not require proof of intent, found the defendant guilty of a class E felony, sentenced him to one-to-five years in prison, and imposed a fine of $100 and costs.
The defendant contends the sentencing court may not consider (1) prior convictions which are more than five years old, or (2) prior convictions under a city ordinance, in determining whether he is a first, second or third time offender under K.S.A. 1983 Supp. 8-262.
K.S.A. 1983 Supp. 8-262(a) provides in pertinent part:
“Any person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction and for third and subsequent convictions shall be guilty of a class E felony.”
The sentencing court did not err in considering convictions which were more than five years old. The statute does not limit the use of prior convictions to those less than five years old. When the legislature intends such a limitation, the limitation is included in the statute. See K.S.A. 8-285 and 1983 Supp. 8-1567(i).
Defendant’s contention that prior convictions under a city ordinance cannot be used for sentence enhancement is more problematical. K.S.A. 1983 Supp. 8-262(a) neither expressly prohibits, nor expressly authorizes the consideration of city ordinance convictions to enhance a sentence for multiple convictions of driving without a license. The statute refers generally to multiple “convictions” of driving without a license.
It is a general rule of statutory construction that the courts should determine the intent of the legislature from a general consideration of the entire statute. State v. Dumler, 221 Kan. 386, 389, 559 P.2d 798 (1977). Subsection (b) of K.S.A. 1983 Supp. 8-262 provides:
“The division upon receiving a record of the conviction of any person under this section or any ordinance of any city or a law of another state which is in substantial conformity with this section, upon a charge of driving a vehicle while the license of such person is suspended for a specifically designated period, shall extend the period of such suspension for an additional like period, and if the conviction is upon a charge of driving while a license is revoked the division shall not issue a new license for an additional period of six months from and after the date such person would otherwise have been entitled to apply for a new license.” (Emphasis added.)
Subsection (b) formerly required an extended suspension only for persons convicted “under this section.” K.S.A. 8-262. The amendment of subsection (b) in 1983 is an indication that the legislature intended to equate city ordinance convictions with convictions under 8-262, for puiposes of extending the period of suspension.
Our review of the legislative history of the subsection (b) amendment verifies this interpretation. The Department of Revenue felt the amendment was needed because by its reading of 8-262 (b), city ordinance convictions were not included, and the amendment was necessary to include them along with convictions under 8-262 for purposes of license suspension. The Department’s memorandum to the House Transportation Committee stated: “8-262(b) should be amended to include municipal ordinance convictions as well as records of convictions under 8-262. Absent the amendment, we can’t technically add a like period of suspension to municipal court convictions.” Attachment 2, Minutes of House Committee on Transportation, February 7, 1983.
Since K.S.A. 1983 Supp. 8-262 is a criminal statute, it must be strictly construed against the State. City of Overland Park v. Rice, 222 Kan. 693, 697, 567 P.2d 1382 (1977). See State v. Rose, 234 Kan. 1044, 1046, 677 P.2d 1011 (1984). Had the legislature wanted city ordinance convictions to count as convictions for sentence enhancement under 8-262(a), it could have so stated.
In State v. Wood, 231 Kan. 699, Syl. ¶ 5, 647 P.2d 1327 (1982), the court held that city convictions of driving while license was suspended and leaving the scene of an accident did not count as offenses under the Habitual Traffic Violators Act, K.S.A. 8-285. The statute listed eight traffic offenses to which the Act applied. Only the section on driving under the influence provided that city convictions would count as qualifying offenses. The other seven sections did not provide that similar city convictions would count. The court followed the common rule of statutory construction that “the mention or inclusion of one thing implies the exclusion of others.” 231 Kan. at 701.
The same reasoning applies here. K.S.A. 1983 Supp. 8-262(b) expressly requires extended license suspension for city ordinance convictions, while subsection (a) does not expressly state that city convictions count as prior convictions for sentence enhancement. By the amendment of 8-262(b) to specifically include consideration of city ordinance convictions, we must infer the legislature intended to exclude the consideration of city ordinance convictions for sentence enhancement under 8-262(a).
As defendant had only one prior conviction within the meaning of the statute, we need not address the second issue raised by the defendant: Whether convictions of a felony for a third violation of K.S.A. 1983 Supp. 8-262 requires proof of criminal intent.
Defendant’s conviction is affirmed. The case is remanded for resentencing as a class A misdemeanor. | [
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Briscoe, J.:
James Jenkins, the defendant, appeals an order determining his jail time credit on two consecutive sentences.
On April 8,1982, the defendant was sentenced in two separate criminal cases. The charges in the two cases were unrelated. The defendant was sentenced to two concurrent terms of 5 to 20 years on one case, and to two concurrent terms of 3 to 10 years on the other. The trial court ordered that the sentences in the two cases were to run consecutively, but then granted probation. By the time of sentencing, the defendant had spent 20 days in jail on one case, and one day on the other.
On November 4,1982, the defendant was arrested for violating the conditions of his probation. He spent a total of 37 days in jail awaiting disposition of the probation revocation proceeding. On January 19, 1983, the trial court revoked the defendant’s probation and ordered him to serve the sentences imposed in April, 1982.
The court ordered that the defendant’s sentence be computed from December 13, 1982, giving him 37 days of jail time credit. The defendant moved for additional credit to reflect the full time he spent in jail awaiting disposition of both cases.
The trial court ruled that the defendant was not entitled to aggregate time spent in jail on unrelated cases. The court ordered that the consecutive sentences be computed from December 12, giving the defendant 38 days of jail time credit.
The sole issue is whether the trial court erred in computing the defendant’s jail time credit. The defendant contends that he should receive an additional 20 days of credit because he spent a total of 58 days in jail awaiting disposition of the two cases.
To correctly determine the amount of jail credit which should be applied to determine the beginning date for the defendant’s sentence, K.S.A. 21-4614 and K.S.A. 1983 Supp. 21-4608 must be read together.
K.S.A. 21-4614 mandates the deduction of time spent in confinement, and provides in pertinent part:
“In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” Emphasis added.
Because the defendant’s sentences run consecutively, the rules applicable to consecutive sentences set out in K.S.A. 1983 Supp. 21-4608(6) must also be considered:
“In calculating the time to be served on concurrent and consecutive sentences, the following rules shall apply:
“(c) When indeterminate terms imposed on the same date are to be served consecutively, the minimum terms are added to arrive at an aggregate minimum to be served equal to the sum of all minimum terms and the maximum terms are added to arrive at an aggregate maximum equal to the sum of all maximum terms.
“(d) When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated mínimums and máximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. The inmate shall be given credit on the aggregate sentence for time spent incarcerated on the previous sentences, but not exceeding the maximum credit toward parole eligibility, for the purpose of determining the sentence begins date . . .
The provisions of both K.S.A. 21-4614 and K.S.A. 1983 Supp. 21-4608(6) are mandatory. The jail credit statute was amended in 1973. The amendment, which made jail credit mandatory rather than discretionary, evidences a legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. State v. Thorn, 1 Kan. App. 2d 460, 462-63, 570 P.2d 1100 (1977).
The statute places no limits or conditions upon the grant of jail credit time. It requires that defendants receive credit for all time spent in custody on the charges for which they are sentenced. State v. Thorn, 1 Kan. App. 2d at 462-63. The court in Thorn also clearly recognized jail credit could be granted for time spent in jail awaiting revocation of probation and imposition of sentence.
Under K.S.A. 21-4614, “a defendant is entitled only to credit for the time held in custody solely on account of, or as a direct result of, those charges for which he is now being sentenced.” State v. Calderon, 233 Kan. 87, 98, 661 P.2d 781 (1983), citing Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978).
The rules applicable to consecutive sentences, however, require that: “The inmate shall be given credit on the aggregate sentence for time spent incarcerated on the previous sentences . . . .” K.S.A. 1983 Supp. 21-4608(6)(d). While 21-4608(6)(d) pertains specifically to cases in which an indeterminate sentence is imposed to be served consecutively to sentences previously imposed, the same principle in establishing jail credit should logically be followed when the consecutive indeterminate sentences are imposed on the same day.
The trial court erred in concluding that it could not grant the defendant jail time credit for the 20 days he spent in jail on the charges in the first case after it had determined he was entitled to 38 days of credit on the sentence imposed in the second. Both Calderon and Campbell recognize a defendant is entitled to credit for the time he is held in custody as a direct result of the charges for which he is being sentenced. The consecutive sentences imposed against Jenkins were a direct result of the charges in both cases. When the sentences are aggregated pursuant to K.S.A. 1983 Supp. 21-4608, the jail credit time on each charge should also be aggregated and the total number of days previously spent incarcerated on all charges should be considered in determining the sentence beginning date.
The case is remanded to the district court for recalculation of the sentence beginning date in accord with this opinion. | [
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Harman, C.J. Retired:
In this proceeding for common carrier authority, appellant Holton Transport, Inc. seeks relief from a district court order remanding the matter to the Kansas Corporation Commission for a more specific and concise statement of its findings. Holton asserts, instead, the court should have declared the KCC’s action unlawful and void.
The threshold question is whether the court’s order of remand for further findings of fact is an appealable order.
The general rule is that remand orders are not appealable in the absence of exceptional circumstances. See 15 Wright, Miller & Cooper, Federal Practice and Procedure: Civil § 3914 (1976). Certainly this constitutes a more orderly procedure and one designed to place less burden on all concerned parties and tribunals.
The right to appeal is neither a vested nor a constitutional right. It is strictly statutory in nature. Skahan v. Powell, 8 Kan. App. 2d 204, 205, 653 P.2d 1192 (1982). Skahan does acknowledge the federal “collateral order” doctrine, 8 Kan. App. 2d at 206, but that doctrine is not applicable here. As we view the matter there is no final order here “which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975).
Our holding is, absent exceptional circumstances, a district court order remanding a proceeding to the Kansas Corporation Commission for further findings is not a final decision appeal-able as of right under K.S.A. 60-2102(a)(4).
Appeal dismissed for want of jurisdiction. | [
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Parks, J.:
This action was brought by Gene W. Francis and Richard W. McKee, partners in an accounting firm, against Randy K. Schlotfeldt, a third withdrawing partner, to enforce provisions of their partnership agreement. The trial court held the provisions in question to be an unenforceable restrictive covenant and entered judgment for the defendant. Plaintiffs appeal.
The issue presented on appeal is whether the trial court erred in holding that section 7-9 of the partnership agreement was unenforceable.
It is the general policy of the law to permit mentally competent parties to arrange their own contracts and fashion their own remedies when no fraud or overreaching is practiced. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 327, 582 P.2d 1111 (1978). To balance the interests favoring freedom to contract and those opposing restraints of trade, our Supreme Court has held that anticompetition covenants, ancillary to a contract of employment freely entered into with full knowledge, are valid and enforceable if the restraint is reasonable under the facts and circumstances of the particular case. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, Syl. ¶ 1, 567 P.2d 1371 (1977).
Section 7-9 of the partnership agreement states in pertinent part as follows:
. . if a partner withdraws from the partnership but intends to and does continue the practice of public accounting, either individually or in any arrangement other than as a part of this partnership, it is recognized that such withdrawing partner may take with him certain clients of the partnership but that the withdrawing partner shall compensate the remaining active partners for such asset as hereinafter provided. For purposes of determining the business value of each client of the partnership, the partners agree that the valuation of such client shall be the higher of fifty percent (50%) of the preceding thirty-six (36) months’ billing, or one hundred fifty percent (150%) of the total billings of the past twelve (12) months, or one hundred fifty percent (150%) of an annualized fee of a new client not serviced for a complete year.”
Section 7-9 is not an ordinary covenant not to compete. It does not prohibit defendant from practicing his profession within either a certain time or place. Section 7-9 places no restrictions on the right of the withdrawing partner to accept work from former clients or to even actively solicit their business. Instead, the provision recognizes tire probability that clients formerly served by a certain accountant at the firm will want to continue to deal with him even after he leaves the firm. Thus, rather than attempt to prohibit such a choice, the agreement requires the withdrawing partner to compensate the firm for lost business. The contract sets out a formula for calculating the agreed worth of any client who does accompany a withdrawing partner and that partner is required to pay the firm for its loss.
Because section 7-9 does not directly prohibit competition, plaintiffs contend that the district court erred in applying the reasonableness test reserved for covenants which restrain trade. They contend that this agreement should have been enforced according to its terms as an ordinary contract without inquiry into its fairness. We agree.
In Dixon, Odom & Co. v. Sledge, 59 N.C. App. 280, 296 S.E.2d 512 (1982), the original partnership agreement between partners in an accounting firm included covenants not to compete. However, when one of the partners decided to withdraw from the firm, a new agreement was drawn in lieu of the provisions regarding withdrawal placed in the original contract. This agreement provided that the withdrawing partner would have to provide the firm with a list of all clients he would serve in future years who formerly patronized the firm and that he would pay 50% of the fees earned from those former firm clients back to the firm. The North Carolina court held that this was not a covenant not to compete, stating as follows:
“Defendants contend that this agreement was an unreasonable and unenforceable covenant not to compete. We do not agree with defendants and find this was not a covenant not to compete. The contract simply describes the obligations of the parties with regard to payment of salary, repurchasing of Sledge’s partnership interest, cancellation of Sledge’s debt and division of fees which Sledge obtained from ‘former clients.’ The agreement did not restrict the area in which Sledge could practice accounting nor did it prohibit him from serving former clients of the plaintiff. By paying a portion of his fees to plaintiff, defendant contracted out of the covenant not to compete as contained in the partnership agreement. The subsequent agreement was simply a contract to settle the affairs of the parties concerned, and it was not a covenant not to compete. Therefore, the rules governing covenants not to compete do not apply.” Dixon, 59 N.C. App. at 284.
The Dixon case is closely analogous to this one. In both instances, the provision requiring the withdrawing partner to reimburse the firm was negotiated by parties with similar bargaining power and with the benefit of counsel. In this case, the district court specifically found no evidence of fraud or overreaching. In addition, the evidence indicates that the provision was agreed to after defendant refused to accept a partnership agreement containing a covenant not to compete. Thus, like Dixon, the agreement to pay a portion of future fees to the firm was negotiated without significant disparity in bargaining power and as a specific rejection of an outright prohibition against competition. The public’s right to choose an accountant is un impaired by section 7-9 and no temporal or geographic restrictions are placed on defendant’s right to practice his trade.
We conclude that the partnership agreement in this case does not restrain trade and should be enforced according to its terms in the same manner as any unambiguous contract.
Judgment is reversed and the case is remanded to the district court with directions to enforce the agreement according to its terms. | [
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Woleslagel, J.:
The Kansas State Bank and Trust Company (Bank) appeals a judgment holding that deposits in an account of its customer, Dahlinger Pontiac-Cadillac, Inc. (Dahlinger), were subject to an order of garnishment issued by Capital Services, Inc. (Capital), Dahlinger’s judgment creditor. This account was maintained to provide funds to meet Dahlinger’s payroll, Dahlinger then being in financial difficulty.
All deposits to this account were made from funds furnished by the Bank. The background for this was that both Dahlinger and the Bank were trying to keep ailing Dahlinger in business until it could be sold as a going concern. In addition to other liabilities, it was indebted to the Bank in excess of the apparent value of its physical assets.
The deposit procedure conformed to an agreement between the two that Dahlinger could overdraw an account they termed as “general.” Dahlinger was required to provide specific payroll itemization for approval by the Bank’s president or chairman of the board. Upon approval, a check on the overdrawn “general” account would be issued in favor of the payroll account so that all payroll checks would be honored upon presentation.
The Bank’s answer to Capital’s order of garnishment was unusual in two ways:
1. In the belief that it could set off a negative balance of approximately $24,000 in the “general” account against a positive balance of approximately $4,000 in the payroll account, it responded that Dahlinger was overdrawn in the amount of $20,032.23.
2. These balances were as of August 4, 1977, the date the order was served and the date shown on the answer. While the Bank maintained it was mailed to the clerk of the district court on that day, it was not marked filed by the clerk’s office until August 19. By then, an additional $14,000 had been deposited in the payroll account through additional overdrafts on the “general” account. The Bank made no special entries as to set-offs.
In the trial court, Capital was unsuccessful when it first sought discovery of the Bank’s records from August 4 to August 19, and the garnishment was involuntarily dismissed. This court reversed the trial court in an unpublished opinion which was affirmed on petition for review. Capital Services, Inc. v. Dahlinger Pontiac-Cadillac, Inc., 232 Kan. 419, 657 P.2d 36 (1983). The Bank was thereby required to reveal the items in the payroll account from August 4 to August 19.
The ensuing trial resulted in a judgment for Capital and against the Bank for $26,772.96. The trial judge entered detailed findings of fact. As legal conclusions, the trial judge reasoned that a special account is not subject to set-off; that the Bank waived the right of set-off by continuing to furnish deposits and honor payroll checks after August 4; and that since the Bank claimed it had the right of set-off, it could not rely on an inconsistent claim the deposits were special.
Before turning to the facts as found below, we believe some observations about the law of bank deposits and about the positions taken by the Bank would be helpful. The customary deposit results in title to the deposit passing to the bank. Denison State Bank v. Madeira, 230 Kan. 684, 695, 640 P.2d 1235 (1982). These deposits are subject to garnishment as a debt owing by the bank to the depositor. K.S.A. 60-717.
Special circumstances, nevertheless, may alter this customary relationship. When there is a specific direction or agreement relative to a deposit account the purpose of it must be carried out. This type account is denominated in legal language as “special” or is said to be “held in trust” by the bank for the expressed purpose. Instead of the bank’s becoming a debtor, it becomes an “agent or trustee” of the funds to effect that purpose. Kaufman v. First National Bank of Opp, Alabama, 493 F.2d 1070, 1072 (5th Cir. 1974). Accord 5B Michie, Banks and Banking § 328, pp. 325-330 (1983).
A factor that apparently influenced the reasoning of the trial judge was that, throughout the trial below, the president of the Bank continued to opine that the Bank had the right of set-off. In both its trial and appellate briefs, however, the Bank claims the deposits were special. Capital now suggests this latter claim cannot be considered because it is raised too late. As we view it, the special deposit argument simply presupposes the Bank was mistaken in its belief it could set off the two accounts. This is a contract case with the question being, what was the agreement between Dahlinger and the Bank as to the payroll account? That a party believes it has certain rights under a contract neither increases nor diminishes those rights; nor does it foreclose a court from correctly determining the rights. We note that there is no pattern of conduct adopted by the parties to indicate there ever was an agreement which modified the one made when the payroll account was established. As to Capital’s argument that the “special deposit” position came too late, we note that the position was taken in trial below. It was argued, it was included in the trial brief and, as will be shown hereafter, it was addressed in the trial court’s findings of fact. Thus, it is not a position first taken on appeal and foreclosed for consideration under the holding in Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984).
The trial court made the following findings of fact:
“4. Beginning in May of 1977, the defendant and the garnishee-defendant started the following practice: Officers of the bank, principally the Chairman of the Board and the President, reviewed checks drawn on the general checking account on a daily basis and determined whether or not those checks would be paid by the bank, placing the account in a further overdraft status.
“5. At least one of the checks reviewed in accordance with that practice was a check payable to the defendant for deposit in its payroll account. The officers of the garnishee-defendant and the principal defendant discussed this check and reached what has been characterized as an oral agreement governing the payroll account. These conversations in fact resulted in a unilateral extension of credit under certain terms by the bank.
“6. One of the terms imposed by the bank was that checks drawn on the payroll must be only for payroll purposes. Previously, the defendant drew only payroll checks on the payroll account for management and bookkeeping convenience, to keep current with payroll deductions, etc. On some occasions the bank officers looked at the payroll check register prepared by the defendant at the same time that they approved the check drawn on the general account for deposit in the payroll account. On other occasions the bank simply accepted the representation made by the defendant’s employee that what was being presented was indeed a check for the payroll.
“7. No audit of the payroll account has been admitted in evidence and the possibility exists that the defendant could have concealed payments for other purposes from this account. There is no evidence that this occurred. There is an unexplained ending balance in the payroll account of approximately $446.00. The Court does not believe that the character of this unexplained ending balance is a controlling fact in this case.
“11. The president of the bank thought he might have had a moral obligation to pay the payroll checks.
“12. From August 4 to August 19,1977, no checks were shown to be drawn on the payroll account for anything other than regular payments of accrued wages, payroll draws and advances. Draws meaning draws against some sort of guaranteed base salary and advances meaning advances against monies not yet earned.
“13. The following deposits to the payroll account occurred on the dates listed.
Date Gen’l Acct. Check # Amount
08/04/77 $ 4,061.54 (beginning balance)
08/09/77 13924 3,123.85 (deposit)
08/09/77 13922 4,136.87 (deposit)
08/12/77 13948 4,146.94 (deposit)
08/19/77 13920 2,688.00 (deposit)
TOTAL $18,157.20”
Finding of fact number six is fully supported by the testimony of the Bank’s president. When asked if there was an understanding about how the payroll funds would be used, he answered, “Definitely, only to meet the payroll.” Dahlinger’s former office manager responded similarly: “[T]hose funds were to fund — or to match exactly the amount of pay that came off of whatever pay — from whatever pay period we’re talking about. . . .” There was simply no contrary evidence of the parties’ agreement and all checks drawn on the account were for payroll.
The evidence, therefore, is subject to no construction except that the parties established a special account for payroll deposits. See Ballard v. Bank, 91 Kan. 91, 95-96, 136 Pac. 935 (1913), in which it was held that deposits were special because the depositor and the bank agreed that proceeds from livestock sales would be used to pay checks drawn to pay for other livestock. See also Hepler State Bank v. Cox, 133 Kan. 753, 3 P.2d 468 (1931), holding that a deposit for the stated purpose of effecting a transfer of funds to a different bank was special and thus not subject to garnishment.
Other cases holding special deposits are not available to garnishment include Gilley v. Farmer, 207 Kan. 536, 485 P.2d 1284 (1971). The rationale for the special deposit rule is stated crisply in B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, 196, 1 Pac. 622 (1884): “Garnishee proceedings mean this: the creditor takes the place of the debtor. ‘Only this and nothing more.’ The former takes only that which the latter could enforce.” This rule was quoted with approval in Harpsterv. Reynolds, 215 Kan. 327, 330, 524 P.2d 212 (1974); in Gilley, 207 Kan. at 544; and in National Surety Corporation v. Gillette, 194 Kan. 604, 606, 400 P.2d 681 (1965).
Dahlinger could not have paid Capital by drawing a check on the payroll account. Neither could the Bank have honored such a check or set off the amount without liability for breach of its trust.
Not directly, but at least inferentially, Capital suggests the account does not qualify as a special account because funds for the deposits came from the Bank instead of from Dahlinger. While that fact may have helped mislead the Bank to its claim of set-off, it is of no legal consequence. Iowa M. L. Ins. Co. v. De La Hunt, 197 Iowa 227, 196 N.W. 17 (1923); Geyer & Adams Co. v. Bk. of Central Ark., 170 Ark. 1016, 282 S.W. 358 (1926).
Since Dahlinger could not have used the money in the special account to pay Capital, the trial court erred in holding that the account was subject to garnishment by Capital.
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Briscoe, J.:
Defendant Thomas Linsin appeals the prison sentence he received after entering a plea of guilty to conspiracy to sell cocaine, a class E felony. K.S.A. 21-3302; K.S.A. 1984 Supp. 65-4107(b)(5); K.S.A. 65-4127a. The defendant, a first-time offender, contends he should have been sentenced to probation pursuant to the “presumptive sentence” language of K.S.A. 1984 Supp. 21-4606a. He argues the prison sentence imposed was an abuse of discretion resulting from the trial court’s misapplication of the statute.
K.S.A. 1984 Supp. 21-4606a provides:
“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class E felony shall be probation on terms the'court determines, unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the person’s having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
Kansas appellate courts have consistently held that a sentence falling within the statutory limits is not erroneous and will not be disturbed on appeal in the absence of special circumstances showing ani abuse of discretion. E.g., State v. Reeves, 232 Kan. 143, 145-46, 652 P.2d 713 (1982); Cochrane v. State, 4 Kan. App. 2d 721, 724, 610 P.2d 649 (1980). Prior to the adoption of K.S.A. 1984 Supp. 21-4606a, a person convicted of a class E felony could receive a suspended sentence, or be fined, placed on probation, or imprisoned for a term of not less than one nor more than two-to-five years, or receive any appropriate combination thereof. K.S.A. 1984 Supp. 21-4603(2) and K.S.A. 1984 Supp. 21-4501(e). With the adoption of K.S.A. 1984 Supp. 21-4606a, the trial court has these same sentencing options, plus a presumption under 21-4606a that the sentence in some cases shall be probation.
Here, the defendant’s one-year minimum, two-year maximum sentence was clearly within the statutory limits of a class E felony sentence. K.S.A. 1984 Supp. 21-4501(e). We are left then only to consider whether the trial court’s interpretation of K.S.A. 1984 Supp. 21-4606a and application of its language to defendant’s sentence was an abuse of discretion.
Two basic rules of statutory construction must be considered when interpreting K.S.A. 1984 Supp. 21-4606a. First and foremost, “the purpose and intent of the legislature governs when that intent can be ascertained from the statute.” State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984). Legislative intent can be gleaned from a consideration of the entire act and, if possible, effect must be given to the entire act as well as each component provision. Flummerfelt, 235 Kan. at 612. Where a statute is plain and unambiguous, this court must give effect to the legislature’s expressed intent rather than determine what the law should or should not be. State v. Sleeth, 8 Kan. App. 2d 652, Syl. ¶ 1, 664 P.2d 883 (1983). Second, “penal statutes must be strictly construed in favor of persons subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning.” Flummerfelt, 235 Kan. at 612.
As K.S.A. 1984 Supp. 21-4606a is only one provision dealing with the punishment of convicted offenders, the legislative intent it expresses becomes clear upon review of sections within the act which also address sentencing. The objective of the correctional process is set out in K.S.A. 21-4601:
“This article shall be liberally construed to the end that persons convicted of crime shall he dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.” Emphasis added.
K.S.A. 21-4606 also gives the sentencing court guidance by enumerating factors the court shall consider in fixing the minimum term of imprisonment. The statute provides:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
“(a) The defendant’s history of prior criminal activity;
“(b) The extent of the harm caused by the defendant’s criminal conduct;
“(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission:
”(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), the Kansas Supreme Court referenced the K.S.A. 21-4601 sentencing objectives in its interpretation of K.S.A. 21-4606, and also addressed the importance of the trial court’s making a record of the factors it considered in sentencing. The court held that when the sentence imposed by the trial court exceeds the minimum, although not required by K.S.A. 21-4606, it is a better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. This record, the court opined, would greatly assist the appellate courts in determining whether the sentencing court has abused its discretion. Buckner, 223 Kan. at 151. In State v. Reeves, 232 Kan. at 145-48, the court reaffirmed the necessity of sentencing courts to consider the mandates of K.S.A. 21-4601 and 21-4606 in the exercise of their sentencing discretion.
In the case at bar, a close reading of the sentencing transcript convinces us that the trial court considered only the crime for which the defendant stood convicted (conspiracy to sell cocaine) in concluding that the presumptive sentence of probation had been overcome. The trial court stated:
“Drug cases are very, very difficult for the Court. We have people who deal in drugs before the Court regularly. It is not an isolated situation. The drug culture is perhaps the most insidious part of our society at the present time. Not only do we have drug cases, but we have armed robberies, we have burglaries, we have shopliftings we have almost every kind of property crime which is related to drugs. People are stealing, robbing, in order to get the money to buy drugs to meet their habit. This Court probably would have half the number of cases we presently have if we didn’t have the stigma of drugs.”
The court went on to note that K.S.A. 1984 Supp. 21-4606a was applicable to defendant’s case, but found that “the presumption is overcome because of the very serious nature of the charges which are involved and because of the effect it has upon the community.”
The trial court correctly concluded that (1) K.S.A. 21-4606a applied to defendant’s sentence; and (2) although there is a “presumptive sentence” of probation under the statute, probation is not mandatory. However, the trial court abused its discretion by relying only upon the nature of defendant’s crime to conclude the statutory presumption of probation was overcome. The court’s conclusion disregards the policy of individualized treatment set out in K.S.A. 21-4601 and most of the factors set forth in 21-4606. As a result, the record is inadequate to overcome the statutory presumption of probation in 21-4606a.
By these statements we do not intend to prejudge the ultimate disposition of this case; rather, we conclude that in .order to overcome the statutory presumption of probation in K.S.A. 1984 Supp. 21-4606a, the sentencing court may not merely rely upon the nature of the crime committed, but must follow the sentencing objectives of K.S.A. 21-4601 and include in the record its consideration of additional sentencing factors as set forth in K.S.A. 21-4606.
Defendant’s sentence is vacated and this case is remanded with directions that defendant be resentenced in compliance with K.S.A. 21-4601, K.S.A. 21-4606 and K.S.A. 1984 Supp. 21-4606a. | [
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Abbott, J.:
This is a direct appeal by Edward A. Duke from the trial court’s order revoking probation for his failure to pay fines and make restitution as set forth in the conditions of his probation.
Duke was placed on probation on October 27, 1983, for a period of 3 years. As conditions of the probation, he was ordered to pay court costs in the matter within 90 days and to pay a fine of $3,000 and make restitution of $520 pursuant to a payment schedule set up by his probation officer. In December, the State filed a motion to revoke Duke’s probation. Duke was arrested and was apparently unable to make bail. The trial court denied the State’s motion for revocation, but Duke lost his job as a result of the incarceration.
Duke managed to pay court costs in compliance with the condition of his probation by making payment on the final day of the 90-day period. He made a payment of $48.43 on March 6, 1984, for restitution which comprised the total he paid on his obligation for fines and restitution. The probation officer testified that defendant’s payment schedule called for $83 per month for the fine and $100 per month for restitution.
The trial court revoked Duke’s probation on March 23, 1984, for failure to pay fines and make restitution. Duke argues that the violation of a condition of his probation — the failure to pay fines and make restitution — was not a willful refusal nor was it his fault. He contends that his failure to meet the financial obligations of his probation was due to his loss of employment. Under the holding of Bearden v. Georgia, 461 U.S. 660, 76 L.Ed.2d 221, 103 S.Ct. 2064 (1983), it is constitutionally impermissible to automatically revoke an indigent defendant’s probation and imprison him merely because he cannot pay the fine and make restitution in accordance with the conditions of his probation. Duke contends the trial court failed to follow the guidelines enunciated in Bearden and therefore abused its discretion in revoking probation.
The procedure for revoking probation in Kansas is governed by K.S.A. 1984 Supp. 22-3716. The statute complies with the constitutional requirements that the defendant be afforded a revocation hearing without unnecessary delay, the right to counsel at the hearing and the right to present testimony of witnesses and other evidence on his behalf, all in accordance with due process principles. State v. Rasler, 216 Kan. 292, 532 P.2d 1077 (1975); Toman v. State, 213 Kan. 857, 518 P.2d 501 (1974). Moreover, the State has the burden of proof to establish the violation of a condition of defendant’s probation. K.S.A. 1984 Supp. 22-3716(2). Swope v. Musser, 223 Kan. 133, 573 P.2d 587 (1977). It is not necessary that the violation be established beyond a reasonable doubt or by conclusive evidence to sustain revocation. State v. Rasler, 216 Kan. 292; State v. Woods, 215 Kan. 295, 524 P.2d 221 (1974). Finally, the determination of whether an order of probation should be revoked is a matter within the trial court’s discretion. Swope v. Musser, 223 Kan. 133; State v. Nelson, 196 Kan. 592, 412 P.2d 1018 (1966).
Foreign jurisdictions have considered the propriety of revoking probation, thereby subjecting the defendant to imprisonment, solely because of the defendant’s failure to make restitution or pay the fines imposed by the sentencing court. Authority from those jurisdictions indicate that incarceration solely because of financial inability to pay is unconstitutional. The defendant is being imprisoned for his poverty and deprived of equal protection of the laws. See, e.g., In re Antazo, 3 Cal. 3d 100, 89 Cal. Rptr. 255, 473 P.2d 999 (1970); State v. Huggett, 55 Hawaii 632, 525 P.2d 1119 (1974); State v. DeBonis, 58 N.J. 182, 276 A.2d 137 (1971); Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978). It is emphasized in these cases that the practice of imprisonment to enforce collection of fines may be proper in certain circumstances. This practice, however, presupposes the defendant has the ability to pay. Therefore, it must be shown that the defendant’s failure to meet the financial obligation was a result of his own refusal or willful conduct rather than his inability to pay. United States v. Taylor, 321 F.2d 339 (4th Cir. 1963); In re Antazo, 3 Cal. 3d 100; State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973).
In our opinion, Bearden v. Georgia, 461 U.S. 660, controls this appeal. In Bearden, the defendant pleaded guilty to burglary and theft charges, but was granted probation on the condition that he pay a fine of $500 and restitution of $250. Two hundred dollars was payable within two days and the balance of $550 was due in four months. The defendant managed to pay the $200 by borrowing the money. However, he failed to pay the balance when due and claimed poverty as the reason for nonpayment. The trial court subsequently revoked the defendant’s probation and sentenced him to prison for violating the conditions of his probation.
The clear message in Bearden is that when determining whether to revoke probation, the trial court must consider why a probationer failed to pay a fine or court costs or make restitution as required by the conditions of probation. Automatic revocation and imprisonment of the probationer is prohibited by the Fourteenth Amendment. As set forth in Bearden, then, a sentencing court must make two determinations to constitutionally revoke a defendant’s probation. First, the probationer’s conduct in failing to comply with the financial conditions of his probation must be considered. It must be determined whether the probationer willfully refused or was responsible for the failure to pay or whether the probationer made a bona fide effort to acquire the resources to pay. Imprisonment may be used as a means to enforce collection of fines or court costs or restitution when the probationer willfully refuses to pay, although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay. Tate v. Short, 401 U.S. 395, 28 L.Ed.2d 130, 91 S.Ct. 668 (1971); Williams v. Illinois, 399 U.S. 235, 26 L.Ed.2d 586, 90 S.Ct. 2018 (1970). If, however, the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay. Alternatives to imprisonment that have been suggested include reduction of the fine imposed, extension of time to pay, and performance of public service tasks in lieu thereof.
We now address the application of Bearden to the facts of the case before us. The defendant testified to his unemployment but indicated that he had been looking for a full-time job. No specifics regarding his inquiries for employment were given. The record before us leaves much to be desired. As we read the record, the trial judge made no determination whether the defendant’s failure to pay was a wrongful refusal. Thus, the first consideration required by the Bearden rule has not been satisfied.
In summary, it appears that the sentencing court did not undertake any of the considerations required by Bearden. Rather, it appears the trial court automatically revoked probation once the probation violation was established. This automatic revocation, resulting in imprisonment without considering the reasons for the violation, is the precise action proscribed in Bearden. As we view Bearden, once the State establishes a violation of probation the probationer must raise the defense of poverty and introduce evidence showing poverty and a good-faith effort to meet the terms of probation.
We call the trial court’s attention to the following paragraph from the Bearden decision which is applicable in this case:
“We do not suggest by our analysis of the present record that the State may not place the petitioner in prison. If, upon remand, the Georgia courts determine that petitioner did not make sufficient bona fide efforts to pay his fine, or determine that alternate punishment is not adequate to meet the State’s interests in punishment and deterrence, imprisonment would be a permissible sentence. Unless such determinations are made, however, fundamental fairness requires that the petitioner remain on probation.” 461 U.S. at 674.
Whatever the outcome of the hearing on remand, the trial court should make findings of fact and state its conclusions of law so as to permit meaningful review.
The judgment revoking probation is reversed, and the case is remanded for further proceedings consistent with this opinion. | [
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Bullock, J.;
Defendant Iowa Beef Processors, Inc. (IBP) appeals from a 75% permanent partial workers’ compensation disability award entered against it by the district court.
Linda Downes worked for IBP as a trimmer on the arm and brisket lines. Her job involved the use of a hook in one hand and a knife in the other as she hourly handled about 500 pieces of meat weighing 8 to 12 pounds each. In the course of an average eight-hour day, therefore, Downes handled approximately 4,000 pieces of meat weighing 32,000 to 48,000 pounds in the aggregate. After working this regime for about two years, Downes began to experience pain through her lower arms and wrists and into her palms.
The company doctor examined Downes and then sent her to Dr. Huston in Topeka. Dr. Huston told her she should not be an arm and brisket trimmer and the company removed her from that job. For the next year, Downes attempted to work other jobs at IBP. Even during lighter work she experienced tremendous pain in her hands and wrists which grew worse the longer she worked. Eventually, the doctors she consulted advised her to quit the job.
At the time of the workers’ compensation hearing, the condition of Downes’ wrists and hands made it difficult for her even to brush her teeth. She was of the opinion that she could not do any of her old jobs at IBP because of the pain occurring when she gripped with her hands or moved her wrists.
Two of the doctors who examined Downes believed that she had carpal tunnel syndrome. The third doctor did not believe that her symptoms were caused by a neurological or muscular disease but thought she might possibly have tendinitis.
The administrative law judge found Downes to be 75% permanently and partially disabled. The director of workers’ compensation affirmed the award. The district court also found Downes to have suffered a 75% permanent partial disability. IBP appeals, raising three issues for review.
I. IBP first argues that the district court should have found that Downes suffered a scheduled injury rather than general bodily disability. Ordinarily, compensation for the loss of the use of a hand is awarded under K.S.A. 44-510d which provides a schedule of compensation for certain injuries. In Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931), however, the court held that this schedule is not to be used when a worker has suffered injury to both extremities. The decision partially rests on what is now K.S.A. 44-510c(a)(2), which allows compensation for permanent total disability when a worker loses the total use of both eyes, both hands, both arms, both feet, or both legs. Honn applied this same rule, by analogy, to partial disability in parallel extremities. Therefore, once it is determined that both hands are partially disabled, Honn removes that disability from the schedule of 44-510d and allows the worker to be compensated for a permanent partial general disability to the body as a whole under K.S.A. 44-510e. See Hardman v. City of Iola, 219 Kan. 840, 844, 549 P.2d 1013 (1976).
IBP’s first request is that this court overrule Honn and Hard-man. Because those decisions were rendered by the Supreme Court, however, this court is powerless to grant IBP’s request. Stratton v. Garvey Internat’l, Inc., 9 Kan. App. 2d 254, Syl. ¶ 6, 676 P.2d 1289 (1984).
IBP next argues that the present case is distinguishable from Honn as it involves cumulative (and perhaps alternate) repetitive use injuries to the hands rather than a single traumatic accident to both hands at once. In our view, such a fact, even if true, is of no consequence. Three time-honored rules compel this result:
1. As early as 1919 a compensable “accident,” as understood in workers’ compensation law, was defined to include a situation where the physical structure of the worker gives way under the stress of usual labor. Gilliland v. Cement Co., 104 Kan. 771, 777, 180 Pac. 793 (1919).
2. In 1949 the court stated, “[i]f injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.” Winkelman v. Boeing Airplane Co., 166 Kan. 503, 508, 203 P.2d 171 (1949). See also Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 573 P.2d 1036 (1978).
3. As previously observed, since 1931, when two hands or feet are injured, compensation is not figured under the schedule in 44-510d, but as a percentage of disability of the body as a whole. Honn v. Elliott, 132 Kan. 454; Hardman v. City of Iola, 219 Kan. 840.
Applying these rules to the case at bar, we conclude that Downes suffered a Winkelman “injury” to both hands, causing a Gilliland structural collapse which entitled her to a Honn compensable bodily disability payment.
II. IBP next argues that the trial court’s finding of injury is not supported by substantial competent evidence, and that the trial court ignored undisputed evidence. In this connection IBP claims that the nerve conduction tests performed by Dr. Mills constituted the only factual evidence presented to the court concerning the existence and extent of Downes’ injuries and that these tests negate injury. While it is true that Dr. Mills was the only doctor to testify that his tests were accurate in confirming diagnoses of carpal tunnel syndrome, he also stated that these tests have no value in determining whether a person has tenosynovitis and have little value in diagnosing thoracic outlet syndrome, which Downes was diagnosed as having. Mills further testified that the second nerve conduction test showed some abnormalities which might have resulted from Downes’ normal condition of having extremely cold hands. Both doctors who believed Downes to have carpal tunnel syndrome had seen the results of the tests in question. On this record we conclude that IBP has failed to show that the district court ignored uncontroverted evidence or that the finding of injury to both hands was not supported by substantial competent evidence.
III. IBP finally argues that even if the record is sufficient to show some injury, it is not sufficient to show that Downes suffered a 75 percent permanent partial disability. Dr. Prostic testified that Downes had suffered a 100% work disability as she could not return to her job even if her carpal tunnel syndrome responded to treatment. This evidence alone is sufficient to justify a finding that Downes had suffered a 75% permanent partial disability.
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Per Curiam:
Willie L. Robinson (defendant), appeals the application of K.S.A. 21-4618 to the sentence he received after pleading guilty to involuntary manslaughter. K.S.A. 1983 Supp. 21-3404.
Defendant, who was intoxicated, celebrated New Year 1984 by discharging a firearm in his backyard; his home was within the city limits of Manhattan, Kansas. After this celebration, defendant took the gun to his bedroom and attempted to unload it. According to defendant, as he was handing the gun to his common law wife so she could put it away, the gun discharged, killing her. While defendant was originally charged with second-degree murder, the charge was later reduced, and defendant pled guilty to involuntary manslaughter.
“On appeal, the scope of review of sentencing under K.S.A. 1979 Supp. 21-4618 is limited to whether there was competent evidence to support a finding that the defendant used a firearm in perpetrating the crime.” State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981). Although the term “use” is not defined in the statute, it was judicially defined in State v. DeCourcy, 224 Kan. 278, Syl. ¶ 4, 580 P.2d 86 (1978):
“Under K.S.A. 1976 Supp. 21-4618, which prohibits the granting of probation to any defendant convicted of an Article 34 crime in which ‘the defendant used any firearm in the commission thereof,’ the State must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime.”
The defendant’s contention that he must have intentionally used a firearm before K.S.A. 21-4618 can be invoked is without merit. Competent evidence exists to support a finding that the firearm was an instrumentality of the crime. Intentional use of the firearm to commit a crime need not be shown.
In State v. Pelzer, 230 Kan. 780, 781-82, 640 P.2d 1261 (1982), our Supreme Court noted the purpose behind the legislation:
“When 21-4618 was being considered in legislative committee the committee reports indicate the committee members felt that this act had at least two purposes: (1) it would deter the criminal from using firearms to commit crimes, and (2) by reducing the number of crimes committed with firearms, it would save victims of such crimes from injuries and death from firearms.”
In this case, death resulted from the criminal use of a firearm, the exact conduct which K.S.A. 21-4618 was designed to deter.
Affirmed. | [
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Meyer, J.:
This is a civil suit brought by plaintiff-appellee Bethany Medical Center against defendant-appellant Geraldine Knox for $3,147.37 plus interest for hospitalization and services rendered her.
Geraldine Knox is an employee of American Management Services, a company providing housekeeping services to Bethany Medical Center on a subcontract basis. Knox worked exclusively at Bethany Medical Center, and on Septembér 26, 1981, Knox had a recurrence of symptoms from a back injury suffered on July 26,1981, while making hospital beds. Knox was admitted to Bethany Medical Center as an inpatient on September 26, 1981, and was released from the hospital on October 8, 1981, incurring a total bill for services rendered of $3,147.37. This bill has remained unpaid.
On April 18, 1983, Bethany Medical Center brought suit against Knox for the amount of the charges owing. Knox an swered by denying any liability to the hospital, claiming the Workmen’s Compensation Act necessitated Bethany Medical Center provide full health care and hospitalization to her. Knox filed a motion to dismiss plaintiff s claim on April 3, 1984. On April 11, 1984, the district court overruled Knox’s motion to dismiss. Specifically the court noted that Knox had never filed a claim for workers’ compensation as provided in K.S.A. 44-501 et seq., and that it had never been proven Bethany Medical Center was the statutory employer of Knox. The court concluded by finding Knox to be indebted to Bethany Medical Center. On April 25,1984, a confession judgment of $3,147.37 plus costs was entered in favor of the Medical Center.
We agree with the decision reached by the trial court.
In this case, the trial court heard Knox’s motion to dismiss and in so doing considered evidence proffered by counsel outside the pleadings. Under K.S.A. 60-212(c), when matters outside the pleadings are not excluded by the court, a motion to dismiss must be treated as one for summary judgment under K.S.A. 60-256.
In general, summary judgment may be granted when the record before the court shows conclusively that there is no genuine issue as to a material fact, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶¶ 1, 2, 3, 4, 662 P.2d 1203 (1983); Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, 461 P.2d 770 (1969). The purpose of summary judgment is to avoid trial where there is no real issue of fact.
Only one issue of fact was present in this case. Knox does not deny that she received medical care from Bethany Medical Center in the amount of $3,147.37, nor does she deny signing an admittance form stating she would be held financially responsible for any amounts incurred as a result of her stay. Instead, Knox’s sole argument in support of her motion to dismiss was that under the Workmen’s Compensation Act, Bethany Medical Center was under statutory obligation to her to provide free medical care and health services. Specifically, Knox relied on K.S.A. 44-503, which makes a principal employer liable under the Workmen’s Compensation Act for injuries to employees of subcontractors hired by the principal; and K.S.A. 44-510, under which an employer has the duty in the event of an accident arising out of the course of employment to provide the injured employee with medical, surgical, and hospital treatment as is necessary.
Bethany Medical Center, in contrast, states simply that Knox has at no time filed a claim for workers’ compensation, and thus, as she has not complied with the statutory requirements of the Act, cannot receive.benefits thereunder.
K.S.A. 44-501 sets forth the basic obligation of an employer under the Workmen’s Compensation Act. That section provides in part that if an employee suffers personal injury through an accident arising in the course of his or her employment, “his or her employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen s compensation act. . . . except as provided in the workmen’s compensation act, no employer . . . shall be liable for any injury for which compensation is recoverable thereunder.” (Emphasis added.) As so stated, the remedies provided employees under the act are exclusive as to all injuries within its purview. Peschka v. Wilkinson Drilling Co., 192 Kan. 126, 130-31, 386 P.2d 509 (1963). Where both the worker and employer are under the act, the employee’s remedies for injuries thereunder are exclusive. Kelley v. Summers, 210 F.2d 665, 672-73 (10th Cir. 1954).
Under K.S.A. 44-520, before an employee may invoke the remedies provided under the Workmen’s Compensation Act, the employee must file notice of the accident with the employer within 10 days after the date of the accident. In addition, K.S.A. 44-520a provides that no compensation under the Act shall be forthcoming unless a written claim for compensation be furnished and served upon the employer within 200 days after the accident.
Although K.S.A. 44-510 does state an employer has a duty to provide medical and hospital treatment and does not specifically state that a claim in accordance with the Act must be filed before an employer has this statutory duty, this statute does state such is a matter within the power of the “director” and that the “director” shall hear and determine all disputes as to such charges and interest due. The “director” referred to is the director of workers’ compensation as provided in K.S.A. 75-5708. K.S.A. 1984 Supp. 44-508(h). The director only decides disputes relating to issues regarding workers’ compensation benefits due an employee, after an application for hearing, in writing, has been made to the director. K.S.A. 44-534(a). In the present case there is a dispute between Knox and Bethany Medical Center as to the benefits entitled Knox under the Workmen’s Compensation Act. Thus, by following the circuitous path through the statutes, it may be seen that before the benefits of K.S.A. 44-510 may be statutorily imposed upon an employer, the injured employee must first file an application for hearing with the director of workers’ compensation, and a hearing on the dispute must be held.
There is no evidence before this court that Knox has at any time filed a claim with Bethany Medical Center, or that she has at any time filed a written application for a hearing with the director on the issue of benefits owing her under the Workmen’s Compensation Act as to Bethany Medical Center.
Knox cites only one case as authority for her proposition that no formal claims or application need to be filed under the Act before the remedies provided within the Act may be invoked. Knox relies on Kauffman v. Co-operative Refinery Assn., 170 Kan. 325, 225 P.2d 129 (1950). Knox’s reliance on this case is misplaced. Kauffman did not involve the issue of whether a claim must be filed by an employee before an employer’s duty to provide health care may be statutorily imposed. Instead Kauffman concerned the issue of whether the employer therein had notice of the employee’s injury in a determination of whether the employer had acted negligently. The court found that the statute involved therein, G. S. 1935, 44-510 (1947 Supp.), did not expressly require a worker demand the employer provide health care benefits before the employer could be found to be negligent. Kauffman, 170 Kan. at 331. The court stressed that its holding was not to be interpreted as meaning that a request to the employer to provide services was never required; just that under the facts of this particular case, no such request was necessary to hold the employer liable for negligently failing to provide health care benefits. Kauffman, 170 Kan. at 331-32.
In sum, the furnishing of medical aid to a worker constitutes payment of compensation within the meaning of the Act. Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 288, 303 P.2d 168 (1956). As stated, no employee may claim a right to compensation under the Act without first filing a claim with his or her employer. K.S.A. 44-520a. There is no evidence before this court that any such claim was filed here. Although on appeal Knox claims to have filed a claim against American Management Services, there is no evidence before this court which would support Knox’s claim. Knox is attempting to invoke the benefits of this Act without following the requirements therein. Any rights Knox may have are by virtue of the Workmen’s Compensation Act. Accordingly it follows that the procedures provided in that Act must be adhered to before the benefits therein may be invoked. Giving Knox the benefit of all inferences which may be drawn from the facts, she has not presented any issue of material fact. Knox was not entitled to have her motion for summary judgment sustained against Bethany Medical Center.
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Abbott, J.;
This is an interlocutory appeal. It involves two issues. They are whether the trial court erred in overruling as premature Hutchinson Travel Agency’s motion to dismiss what is denoted as a malicious prosecution action which the trial court allowed filed in the damage phase of a bifurcated trial, and in overruling its motion for judgment on the counterclaim for fraudulent misrepresentation filed by defendant, Rob McGregor.
Highly summarized, and without reference to any charges or countercharges not in issue on appeal, the facts are as follows. Rob McGregor was an employee of Hutchinson Travel Agency. His employment was terminated and he opened a competing travel agency in the same town.
Hutchinson Travel Agency filed suit for damages and an injunction. The agency claimed McGregor had signed a contract containing a covenant not to compete and produced a photocopy of a contract that appeared to have been signed by McGregor.
McGregor admitted the signature on the contract appeared to be his but continued to deny that he had signed the contract. The travel agency hired a handwriting expert who determined the signature was that of McGregor.
McGregor then hired a handwriting expert who determined that it was indeed McGregor’s signature, but that it had been cut from another document and pasted on the contract in question and then photocopied a number of times.
McGregor’s action for fraudulent misrepresentation is based on the travel agency’s having produced a forged document, that is, the “paste-up” signature.
The trial judge bifurcated the trial. At the end of the first part, the jury eliminated all the liability issues except the fraudulent misrepresentation claim; it unanimously found for Rob McGregor on that issue.
McGregor then filed a supplemental counterclaim for malicious prosecution. Hutchinson Travel Agency filed a motion for judgment notwithstanding the verdict on the fraudulent misrepresentation claim and a motion to dismiss the malicious prosecution claims as premature. The trial judge overruled both motions but, on plaintiffs motion, made the appropriate findings under K.S.A. 60-2102(b) for interlocutory appeal, which this court granted.
Favorable termination of the underlying civil proceedings is an essential element of malicious prosecution. An action for malicious prosecution cannot be brought if the underlying action is still pending and undetermined. Nelson v. Miller, 227 Kan. 271, 280, 607 P.2d 438 (1980). The rules in Kansas for what constitutes favorable termination seem relatively clear. “[A] claim for malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of the termination of the former proceeding in favor of the defendant.” H & H Farms, Inc. v. Hazlett, 6 Kan. App. 2d 263, 271, 627 P.2d 1161 (1981). “[A] plaintiffs cause of action for malicious prose cution does not accrue until the time for appeal has passed on the original action.” p. 269. See also Hays House, Inc. v. Powell, 7 Kan. App. 2d 53, 58, 637 P.2d 486 (1981), rev. denied 230 Kan. 818 (1982). Some jurisdictions have held that the right to maintain an action for malicious prosecution accrues when judgment is rendered regardless of whether an appeal from such action is taken, but such has not been the rule in Kansas.
This case presents a unique situation because the trial was bifurcated, and the jury found for the defendant on both of the plaintiff s claims. The jury, however, also found for the defendant on one of his counterclaims, necessitating a second trial on the issue of damages. The trial judge did not issue a K.S.A. 60-254(b) certificate on any of the issues decided at the- liability phase of the trial, and since the question of damages had not been determined there was no final decision in the case which would give the plaintiff the right to appeal the verdict against it pursuant to the provisions of K.S.A. 60-2102(a)(4). See Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977). The time for appeal has not passed and the “favorable termination” requirement for a malicious prosecution claim has not been met.
Favorable termination of the underlying civil proceedings is required to support a malicious prosecution claim for several reasons. First, a complaining party cannot show lack of probable cause in instituting the proceeding until it is finally terminated in his favor. See Nelson v. Miller, 227 Kan. at 281. Additionally, a complaining party cannot show all damages from the institution of legal proceedings until they are terminated. And, finally, it is recognized that the requirement of final termination serves to help avoid inconsistent judgments from the courts. See Annot., 30 A.L.R. 4th 572.
We hold that the malicious prosecution action was premature because the appeal, time has not passed. Thus, under the facts of this case, the malicious prosecution action should be dismissed.
The travel agency contended in its motion for judgment notwithstanding the verdict, and continues to contend on appeal, that a claim for fraudulent misrepresentation does not lie since McGregor was never misled by nor did he rely on the contract as being true. ,
To prove fraud, a claimant must show that an untrue statement of material facts, known to be untrue by the party making it, or made with reckless disregard for the truth, was justifiably relied upon by the party alleging fraud and as a result of the reliance was damaged. Weigand v. Union Nat’l Bank of Wichita, 227 Kan. 747, 753, 610 P.2d 572 (1980); Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 6, 605 P.2d 545 (1980); Sippy v. Cristich, 4 Kan. App. 2d 511, 514, 609 P.2d 204 (1980).
Reliance in a fraudulent misrepresentation case must be reasonable, justifiable and detrimental. See Goff v. American Savings Association, 1 Kan. App. 2d 75, 79-82, 561 P.2d 897 (1977). Here there is no doubt that McGregor knew he did not sign the contract, nor did he rely on the false photocopy of the purported employment contract as being true. The jury, however, found for McGregor on the fraudulent misrepresentation claim. In upholding the jury verdict on the motion for judgment notwithstanding the verdict or motion for new trial, the trial judge said:
“Well, I think it has to be admitted by everyone concerned that the fraud, or alleged fraud, that we are talking about is not fraud as we normally come across it in other cases. It is — it has to do with supporting evidence to the claims made in an action against El Dorado Travel in this case; and I feel that it may sort of boil down to an interpretation of what is meant by the term ‘rely,’ and I am not going to be as restrictive as Mr. Cornwell. I feel it’s, obviously, if a party does not sign something, and he is presented a copy that purports to be his signature. He knew it was. He didn’t sign it, but he also knows if it is part and parcel of the claim that there may be prima facie evidence to favor him. In other words, the burden is shifted, if nothing else, so he has to rely on it to that extent and defend against it, and present evidence to overcome that allegation. I have never seen anything in the way of fraud quite similar to what we have had here; and in my opinion, it just would be an injustice to close your eyes, and say somehow Mr. McGregor and El Dorado Travel was not damaged, and put in a very defensive and detrimental position when confronted with this and presented with this paste-up. Now it also, for whatever it is worth, and in passing, it’s a fraud upon the court. Now I don’t for one minute, Mr. Cornwell, contend that you had any part- — and, obviously, from the opening remarks in trial, when it became obvious to you it was not genuine, you certainly divulged that fact to the jury and didn’t try to pretend otherwise. So I am not even suggesting there was not [sic] a fraud on the part of counsel, or for this matter, the parties that appeared in court. I suppose it was never established who did the paste-up in the thing; but for whatever purpose, I would have to agree with the jury overall it was fraudulent misrepresentation working to the disadvantage of El Dorado Travel.”
A review of the Kansas case law on fraud reveals that the person alleging fraud must rely to his detriment on the false statement as being true. Here McGregor emphatically maintained the photocopy of the purported employment contract was false and presented an expert witness to attempt to prove it was false. While it is true that McGregor was forced to prove it false, we find no authority and counsel provides none which indicates this constitutes the type of reliance necessary to support a claim for fraud.
McGregor obviously relied on the document to the extent that it had to be proven false. So, while the document may have been fraudulent, McGregor knew it was false and thus he could not rely on the representation. Goff v. American Savings Association, 1 Kan. App. 2d at 82. McGregor was in much the same position that any party to a suit is in when he or she believes an adverse witness is not being truthful or is giving an inaccurate and biased expert opinion. One has expended time, effort and money, and has suffered anxiety while being forced to defend a claim one knows is untrue. See, e.g., Hokanson v. Lichtor, 5 Kan. App. 2d 802, 626 P.2d 214, (1981). McGregor’s remedy, if any, is not an action for fraudulent misrepresentation. Accordingly, the trial court erred.
Reversed and remanded with directions to grant judgment to the plaintiff on the fraudulent misrepresentation claim notwithstanding the verdict and to dismiss the malicious prosecution counterclaim without prejudice. | [
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Bullock, J.:
Lawrence Wade works full time as a Wichita policeman. He also “moonlights” as a security guard at both St. Joseph Medical Center and Union National Bank. While working at his bank job, Wade fell on some ice and fractured his right leg. Thereafter, Wade filed a workers’ compensation claim seeking recovery for this job-related injury. At the hearing on the claim before the administrative law judge only two issues were seriously disputed:
1. Whether Wade’s average weekly wage (for purposes of the temporary total disability computation) was what he earned at the Bank alone or was, instead, the aggregate of his wages from all three jobs, and
2. whether Wade had suffered compensable traumatic neurosis in addition to his leg injury.
Compensating Wade only for his leg injury on the basis of his Bank wages alone, the administrative law judge decided both issues adverse to Wade. Wade timely appealed, albeit unsuc eessfuly, first to the director of workers’ compensation and then to the district court.
On review of these decisions we are presented with only two issues:
1. Should full-time and part-time “moonlighting” wages be aggregated as the weekly wage in computing temporary total disability payments for a worker injured while working on the part-time job, and
2. Is the trial court decision denying recovery for traumatic neurosis supported by substantial competent evidence?
The scope of this court’s appellate review in workers’ compensation cases is well settled. Specifically, under K.S.A. 1984 Supp. 44-556(c), our review is limited to questions of law. Questions of statutory construction are questions of law and, although deference is often given to the interpretation of statutes made by the administrative agency charged with enforcement of those statutes, courts are authorized to substitute their judgment for that of the agency on questions of law. See Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 808-09, 667 P.2d 306 (1983), and cases cited therein.
In reviewing factual findings of the trial court, this court is limited to a determination of whether the trial court’s judgment is supported by substantial evidence when viewed in the light most favorable to the party prevailing below. Dieter v. Lawrence Paper Co., 237 Kan. 139, 145, 697 P.2d 1300 (1985); Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
Substantial competent evidence has been defined as that which is relevant and which carries enough weight to allow one to conclude that the judgment is proper. Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976); Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984). If the evidence supporting a judgment is substantial and competent, the trial court ruling is upheld even if there is evidence in the record which supports contrary findings. Phillips v. Helm’s Inc., 201 Kan. 69, 439 P.2d 119 (1968). Negative findings of a trial court are seldom set aside if the evidence is limited in quantity and its weight and credibility questionable, or if the evidence may be disregarded for any reason. Harris v. Cessna Aircraft Co., 9 Kan. App. 2d at 335. See also Davis v. Rock Island Oil Co., 211 Kan. 201, 505 P.2d 694 (1973); Harrell v. J. S. Frank Construction Co., 210 Kan. 548, 502 P.2d 762 (1972).
With these principles in mind, we turn to Wade’s first issue on appeal. The resolution of this issue, in our view, depends entirely upon the interpretation of K.S.A. 44-511(b)(7), which provides:
“(7) The average gross weekly wage of an employee who sustains an injury by accident arising out of and in the course of multiple employment, in which such employee performs the same or a very similar type of work on a part-time basis for each of two (2) or more employers, shall be the total average gross weekly wage of such employee paid by all the employers in such multiple employment. The total average gross weekly wage of such employee shall be the total amount of the individual average gross weekly wage determinations under this section for each individual employment of such multiple employment.”
No Kansas cases have interpreted this provision of the statute in its present form. However, two cases and the legislative history of the section do provide some guidance in determining the legislative intent and purpose of the provision.
The history of section 44-511 of the Workmen’s Compensation Act was reviewed by our Supreme Court in Walters v. Greenland Drilling Co., 184 Kan. 157, 334 P.2d 394 (1959). A brief review of that history is necessary to fully understand the purpose of the present language of K.S.A. 44-511(b)(7). In Walters, the high court noted that the first workers’ compensation act in Kansas was modeled on the British Act which clearly provided for an award of compensation based on all concurrent contracts of employment at the time of the injury. The court further observed:
“The first Kansas workmen’s compensation act was enacted as L. 1911, ch. 218, and in section 12 of that act we find the following language:
“ ‘(b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his “earnings” and his “average earnings” shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.’
“The above language remained a part of the section of our workmen’s compensation act for some time. The particular section came to be numbered section 44-511 in the Revised Statutes of 1923, and has retained that designation to the present time. The only case in Kansas in which the particular clause seems to have been attempted to be applied was Walton v. Electric Service Co., (1926) 121 Kan. 480, 247 Pac. 846. In the Walton case the workman was employed by the electric company and also by the city of Bucklin. The claimant contended the award should be based upon earnings received from both jobs. This court refused to follow claimant’s contention since the city was not operating under the workmen’s compensation act. . . .
“1933, the legislature amended section 44-511 by removing the provisions taken from the British act. By L. 1933 (special session), ch. 74, sec. 1, the pertinent portion of section 44-511 was amended to read:
“ ‘That section 44-511 of the 1931 Supplement to the Revised Statutes of the state of Kansas, 1923, being section 11 of chapter 232 of the Session Laws of Kansas, 1927, by amending to read as follows: Section 44-511, Rules for compensation. (1) Whenever in this act the term “wages” is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident . . . (Italics supplied.)” Walters v. Greenland Drilling Co., 184 Kan. at 159-60.
In Walters, the worker was killed while performing his duties as an oil field pumper for the Greenland Drilling Company, and death benefits were computed on the basis of his annual wage from his employment with Greenland. The evidence showed that Walters was concurrently employed by two other oil companies as an oil pumper at the time of his death, and the claimants argued that compensation should have been based on the total of his earning from the three individual employments. The court affirmed the award based solely on Walters’ wage from Greenland Drilling, concluding “the Kansas legislature deliberately removed from our statute and repealed the provisions for basing wages on concurrent contracts.” 184 Kan. at 162. The court also stated:
“If the legislature should desire to restore a workman’s right under the compensation act to recover an award based upon all his earnings from all his contracts of employment, it may easily do so by restoring to the statutes the provisions repealed by the 1933 amendment of section 44-511. Under the present history of sections 44-510 and 44-511, consideration of mere concurrent contracts must be construed to be forbidden for the purpose of arriving at a workman’s annual earnings. Under the present provisions of the statute, appellants must fail in their contentions, and the orders of the district court must be affirmed.” 184 Kan. at 163.
K.S.A. 44-511 was amended in 1974 (L. 1974, ch. 203, § 18) to include, inter alia, the present language found in K.S.A. 44-511(b)(7).
The question for our determination is, can the language of K.S.A. 44-511(b)(7) authorizing weekly wage aggregation for a worker who “performs the same or a very similar type of work on a part-time basis for each of two (2) or more employers” be read to include a full-time wage earner who also “moonlights” on one or more part-time jobs? We think not. Initially, we note that when the legislature, in 1911, intended aggregation of all wages in all multiple employment cases, it clearly knew how to and did say so. After later deleting this provision entirely, the 1974 legislative body reinstated the aggregation clause, but only for those workers employed by two or more employers “on a part-time basis.” Additionally, our independent research of the legislative history of K.S.A. 44-511(b)(7) reveals the following notation in the October 17, 1973, minutes of the committee which recommended its passage:
“[The subsection provides that] a worker who is employed by more than one employer but in similar type work be compensated to reflect his average work week and not the number of hours of just one employer. (Specific exception was made for anyone considered moonlighting.)” Emphasis added.
We are therefore persuaded that multiple employment wage aggregation authorized under K.S.A. 44-511(b)(7) for purposes of temporary total disability payment computation applies only to workers employed exclusively in part-time employments of a similar nature and does not apply to workers employed on a full-time basis who also “moonlight” part time. Applying this statute, thus construed, to the case at bar where Wade was employed full time for the police department and part time for the hospital and the bank (where the injury occurred), we conclude that no aggregation of wages is authorized and that the trial court correctly computed Wade’s compensation based upon his bank wages alone.
We turn finally to the second issue raised on appeal. Before reviewing the record we are compelled to first observe that in claims of traumatic neurosis, it is the claimant who bears the burden of proof.
In the case at bar, although there was evidence that Wade had psychological problems as a result of his immobility and inability to work after his injury, the record is void of any suggestion that the psychological problems resulted in any compensable disability. Even Dr. Seifert, Wade’s personal psychologist and only witness on this point, testified that Wade’s psychological problem would not have an effect on his ability to perform the same job in the future. Furthermore, Dr. Seifert did not rate any degree of disability attributable to the alleged neurosis.
K.S.A. 44-501 provides in part:
“[T]he employer shall not be liable under the workmen’s compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which he or she is employed.”
Our review of the record below reveals no evidence.other than the testimony of Dr. Seifert and claimant’s testimony concerning his feelings about his immobility relating to the claim for traumatic neurosis. As we have previously observed, Wade had the burden of proof with respect to the neurosis claim. Simply put, he failed to sustain it. Accordingly, we conclude that the trial court’s denial of recovery for traumatic neurosis is not error.
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Harman, C.J. Retired:
Here, seventeen shares of common stock in Westshore Estates, Inc. were placed in escrow pursuant to a written contract of sale made April 17,1973, which called for appellees-buyers to make 120 monthly payments of $226.42 to appellants-sellers for principal and interest. The contract authorized appellees to vote the seventeen shares so long as they were in full compliance with the terms of the agreement. The contract — scrivener unknown — further provided that “in the event second parties [appellees] shall default in the performance of this contract, first parties [appellants] may at their option declare this contract terminated.”
Appellees made the scheduled payments through September 1981. They made no further payments. On April 17, 1983, the date of the last scheduled payment, a total of $7,271.84 plus interest was due under the contract.
Appellants filed suit, seeking their expectation interest. Appellees answered, asserting that appellants’ only remedy available was to declare the contract terminated and retake possession of the stock.
During the proceedings both sides agreed there were no facts in dispute and that the stock in question “isn’t worth too much at this point.” The trial court found, both sides agreeing, that the contract is unambiguous. The court found that the contract was “essentially a forfeiture contract by which the parties have bound themselves to perform certain definite requirements or lose their rights under that contract.”
The court granted judgment to the appellants, ordering the return of the stock to them, and further ruled they were entitled to keep all sums paid pursuant to the contract prior to default.
On appeal this court may interpret the contract, the pole star being the intent of the parties. Kansas State Bank & Trust Co. v. DeLorean, 7 Kan. App. 2d 246, 253, 640 P.2d 343, rev. denied 231 Kan. 800 (1982). When unambiguous, a contract must be enforced according to its terms, given their plain, general and common meaning, so as to give effect to the intention of the parties at the time they contracted.
A forfeiture is generally an enforced and involuntary loss of a right in consequence of an offense or default. Storm v. Barbara Oil Co., 177 Kan. 589, 598, 282 P.2d 417 (1955). The term is sometimes used as a synonym of “penalty.” Black’s Law Dictionary 1020 (5th ed. 1979).
Here the option to forfeit was that of appellants — not appellees — and it was permissive.
“Remedies provided for in a contract may be permissive or exclusive. The mere fact that the contract provides a party with a particular remedy does not, of course, necessarily mean that such remedy is exclusive. [Citation omitted.] A construction which renders the specified remedy exclusive should not be made unless the intent of the parties that it be exclusive is clearly indicated or declared.” Vandergriff Chevrolet Co., Inc. v. Forum Bank, 613 S.W.2d 68, 70 (Tex. Civ. App. 1981).
See also Smith v. Quivira Land Co., 153 Kan. 794, 113 P.2d 1077 (1941), where it was emphasized that the alternative remedy of cancellation of a contract would lead to an inequitable result.
“A party cannot terminate a contract by reason of his own default under a forfeiture provision for the benefit of the other party.” 17 Am. Jur. 2d, Contracts § 499, p. 974. See also Chambers v. Anderson, 51 Kan. 385, 392, 32 Pac. 1098 (1893), and Bohart v. Investment Co., 49 Kan. 94, 30 Pac. 180 (1892).
If forfeiture is allowed here, appellees will benefit from their default.
Contract law protects the expectation interest of contracting parties based on a voluntary agreement that defines their relationship. If a breach occurs, fulfillment of the expectation interest gives the non-breaching party the benefit of his bargain, to put him in the position he would have been had there been no breach. 5 Williston on Contracts §§ 683-88 (3d ed. 1961); 17 Am. Jur. 2d, Contracts §§ 446-47, 489, 503, 510. In this case appellants’ claim has not been suspended or discharged and the remedy of recovery of money damages is available to them. See 22 Am. Jur. 2d, Damages § 47, p. 74.
The judgment is reversed and the cause is remanded for a determination of appellants’ damages and entry of judgment for them accordingly. | [
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Abbott, J.:
This is an appeal by Jim Buckle, a farm tenant, from a judgment denying his motion for partial summary judgment and granting the Caylors, the landlord, judgment on the pleadings.
Buckle contends that summary judgment is inappropriate because material controverted questions of fact remain and also that the trial court erred in interpreting and applying the statutory law (K.S.A. 58-2501 et seq.) governing farm tenancies.
The trial court granted the Caylors judgment on the pleadings, but it is obvious that the trial court considered affidavits filed by the respective parties in arriving at its decision. When matters outside the pleadings are presented to and not excluded by the trial court, the case is treated as one for summary judgment. K.S.A. 60-212(b); Mouber v. City of Prairie Village, 6 Kan. App. 2d 972, 974, 637 P.2d 424 (1981). Thus, we are required to read the record most favorably to the tenant and give him the benefit of the doubt on disputed issues. Any disputed facts that will not affect the ultimate decision can be ignored by us in determining whether summary judgment was proper. Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966).
As we see it, the controlling issue in this action is sufficiency of the written notice to terminate. The relevant consideration is the adequacy of the notice and its compliance with the statute, K.S.A. 58-2506, which is a question of law. We conclude that the disputed facts cited by plaintiff are not material and do not preclude summary judgment.
Buckle took possession of the property under a written lease which set the expiration date as December 31, 1978. When a tenant takes possession under a written lease, K.S.A. 58-2502 applies and it provides that when premises are leased for one or more years, and the tenant with the assent of the landlord continues to occupy the premises after the expiration of the term, the tenant becomes a tenant from year to year. The assent may be express or implied, and the law implies a continuation of the original tenancy upon the same terms and conditions. Becker v. McFadden, 221 Kan. 552, 561 P.2d 416 (1977). Buckle continued to farm the land in 1979, 1980, 1981 and 1982 with the assent of the landlord and thus held a tenancy from year to year.
To terminate a year-to-year tenancy that is holding over from a written farm lease specifying a termination date, notice to the tenant must be given by the landlord in compliance with K.S.A. 58-2506(d).
K.S.A. 58-2506(d) provides that:
“Subject to the provisions of subsections (b) and (c), a farm tenant becomes a tenant from year-to-year by occupying the premises after the expiration of the term fixed in a written lease, in which case the notice of termination of tenancy must fix the termination of tenancy to take place on the same day of the same month following the service of the notice as the day and month of termination fixed in the original lease under which the tenant first occupied the premises. Such notice shall be written and given to the tenant at least 30 days prior to such termination date.”
In our opinion, subsections (b) and (c) are not applicable to the facts of this case. The 1982 wheat crop had been harvested, but Buckle had not worked the land nor harvested the fall crops when he was given the written notice to terminate his tenancy. Buckle argues that he should have been allowed to work the fall cropland and plant wheat regardless of whether a valid termination notice was delivered.
Buckle argues that the statute requires that the notice of termination of tenancy fix the termination to take place on the same day and month as that fixed in the original lease (December 31); that the landlord’s failure to specifically set that date out in the notice to terminate the lease is fatal, rendering the notice ineffective and voiding the termination of the tenancy.
We perceive the issue somewhat differently than the tenant does. For example, we believe that a notice to terminate tenancy which sets forth a termination date “pursuant to /K.S.A. 58-2506(d)” is sufficient to comply with 58-2506(d). If that premise is correct, then the question becomes whether a termination notice that neither sets forth a termination date nor refers to the appropriate statute is sufficient to terminate the tenancy of a farm lease.
As we read subsection (d), it could be construed to mandate that the notice set forth the day, month and year the termination is to be effective. We believe this would be a strained construction and not consistent with legislative intent. The statute lacks a critical feature often found in mandatory legislation, which is a provision describing the consequences of noncompliance. Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244 (1973).
We are of the opinion that the legislature intended to mandate that a landlord not fix a termination date inconsistent with 58-2506, which in the case at bar is a tenancy from year to year following a written lease expiring on December 31. The lease before us does not fix the termination of tenancy to take place on a date other than that fixed in the original lease.
Obviously, the better practice would be to set out both a reference to the applicable statute (in this case, 58-2506) and the correct date (in this case, December 31, 1982).
As we read 58-2506, subsection (a) applies to all farm tenancy termination notices except as may be otherwise provided for by a written lease or by this statute. Subsection (d) of the statute provides otherwise, thus subsection (a) appears to be inapplicable.
Subsection (d) is subject to subsections (b) and (c). Subsection (b) is inapplicable because it applies only when a fall seeded grain crop has, in fact, been planted. Grey v. Schmidt, 224 Kan. 375, 581 P.2d 1180 (1978). The legislature obviously added subsection (c) as a result of the strong dissent by Chief Justice Schroeder in Grey v. Schmidt, 224 Kan. at 378. That case dealt with an oral lease, and subsection (d) did not apply to it. Subsection (a) did apply, and the issue was whether subsection (b) did. The Supreme Court held subsection (b) applied only when a fall seeded crop had, in fact, been planted.
Buckle argues that subsection (c) applies and that he should have been allowed to work the land from which soy beans were harvested and plant it to wheat, which is a fall seeded crop. He argues that he had that right even if we hold that the notice to terminate the farm tenancy complies with 58-2506(d).
We do not so view subsection (c), although it does seem to apply to the facts of this case and although there are some obvious conflicts and inconsistencies between subsections (a), (c) and (d). For example, subsections (a) and (c) both set a termination date of March 1 and require that a tenant be given notice of the termination 30 days before March 1. The legislature used March 1 as a termination date because the fall seeded grain crops have been planted 30 days before that date and the spring seeded crops have not, and it is the logical time to terminate a farm tenancy when the parties cannot agree on a date. Subsection (d) obviously conflicts with (b) and (c) in that it requires the termination date to be the same day and month as that stated in the original lease rather than March 1. The conflict caused by the inconsistencies in the subsections — that (a) does not apply because (d) is applicable, and both (b) and (c) are contingent upon (a)’s being applicable — probably could be handled by statutory construction to the effect that (d) states it is subject to the provisions of (b) and (c), thus (c) applies.
The conflict in dates is another matter. If we believe that in adopting 58-2506(c) and (d) the legislature intended for (c) to apply only to fall seeded grain crops (almost exclusively wheat), then (d) would apply to all crops except wheat. Therefore, a year-to-year tenant occupying the premises after the expiration of the term fixed in the written lease could hold summer fallow land, and possibly other land intended for fall planting, for an additional crop year unless notice is given at least 30 days before March 1, despite the termination date set in the. prior written lease, and the right to occupy the remainder of the cropland would terminate as of the date fixed in the prior written lease provided notice is given at least 30 days before the termination date.
If that is correct, then Buckle could maintain possession and harvest the wheat crop; but as to the spring and summer planted crops, he would, only be reimbursed for the reasonable value of services furnished for customary tillage and the application of fertilizers, herbicides and pest control substances as well as the reasonable value of the fertilizer, herbicides and pest control substances. K.S.A. 58-2506a.
In this case we need not determine what the legislature intended, for we are of the opinion that even if the legislature had intended (c) to apply to a year-to-year tenant who occupies the premises after the expiration of the term fixed in a written lease, (c) still would not apply to the facts here. The 1982 wheat crop had been harvested and that land had not been worked by the tenant at all, so it cannot be said it was prepared in conformance with normal practices in the area as is required by subsection (c). As to that land, in our opinion subsection (c) does not apply. Assuming a valid notice is given pursuant to 58-2506(d) sufficient to terminate the tenancy under consideration after a fall seeded grain crop has been harvested from other land, and the tenant has notice prior to harvesting a spring planted crop, the question becomes: Can that tenant work and seed that land to a fall planted grain crop?
In determining legislative intent, words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. Subsection (c) was added by the legislature in response to an oral lease to prevent an injustice and to reflect public policy that land ought not to lie idle because of operation of the law. Here the parties had agreed on a termination date in a written lease; at the time the lease was executed, as it does now, 58-2506 (L. 1975, ch. 294) provided that a notice to terminate a holdover tenant must fix as the termination date the same month and day as the original lease.
The legislature limits the application of subsection (c) in the amendment to “cropland which has been prepared in conformance with normal practices in the area.” (Emphasis supplied.) In the same sentence, the legislature used the language “has been or will be harvested.” This obviously demonstrates that the legislature had in mind the difference between past and future action by the tenant. Having so clearly demonstrated that awareness in the same sentence, we conclude the legislature did not intend subsection (c) to apply to land on which no work had been performed preparatory to planting a fall seeded grain crop. The legislature has clearly demonstrated that it could have easily changed the results imposed by subsection (d) if it had wanted to do so by stating “has been or will be” prepared, just as it did in the same sentence concerning harvest. We therefore conclude that the legislature intended the parties’ agreement fixing the month and day of termination to control.
In this case there was no preparation of any kind, although the tenant contends he purchased a combine in preparation for the next year’s harvest. We have no difficulty concluding that the purchase of personal property in the form of farm equipment is not what the legislature contemplated when it refers to “cropland which has been prepared” in subsections (b) and (c).
The trial court did not err in terminating the tenancy as to the land described in the notice to terminate. The notice is specifically limited to the real property described therein. Five legal descriptions totaling 505 acres are set out in the original lease. One quarter-section is divided by a river, and it is described in the original lease as “All E River In NE 14 of 34-17-21” and “All W River In NE 14 of 34-17-21.” Due to an oversight, the land in the northeast quarter of 34-17-21 lying west of the river was not included in the notice to terminate tenancy. The pleadings before us state that 31 acres lie west of the river. The pleadings show that Buckle raised the issue that the written notice to terminate tenancy did not describe all of the real estate, although the tenant did not specify in the record what real estate was not included in the notice.
The record before us does not indicate whether that issue was raised when the motion for summary judgment was heard. The trial judge did include that description in his judgment. The appellant has the responsibility of furnishing a record establishing error. The record before us does show that the issue involving the legal description, of the 31 acres was raised in the pleadings. It does not, however, contain the motion for judgment on the pleadings (it appears one was not filed) nor a transcript of oral argument on that motion. The judgment does not mention the issue and it appears from the record that the trial judge’s attention was never directed to it. We therefore do not consider that issue on appeal.
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Foth, C.J.:
Defendant Michael J. Mayfield was convicted in a court trial of possession of marijuana. He was placed on two years’ probation, fined $250.00 but paroled to pay $100.00, and ordered to pay costs and the expenses of his defense. He appeals, claiming the marijuana on which the conviction was based was unlawfully seized in a warrantless search of his apartment.
The seizure took place in the evening of August 22, 1983. During that summer defendant lived in a Topeka apartment building across the hall from Carol Stark. The two had met in the building and briefly socialized on one occasion, but Carol thereafter limited her contact with him because he allegedly made a sexual advance toward her. At about 10:00 p.m. on the night in question, defendant knocked on Carol’s door. Not wanting him to know she was at home, Carol did not answer. After the knocking continued for twenty minutes, Carol called the police.
When the two responding officers arrived, they found defendant standing in the hallway near Carol’s door. The officers visited with Carol, learned the details of her complaint, and then asked defendant for identification. Defendant was reluctant to produce identification, and demanded to' know what he had done. He and the officers then engaged in a loud discussion about whether he had to give the police any identification. During this discussion, in which defendant was increasingly belligerent, he backed down the hall towards his apartment. Finally, he agreed to get his identification from his apartment.
Mayfield entered his apartment, and the officers followed. Mayfield did not invite the officers in, but they informed him that they were coming in with him. Once inside, Mayfield walked about without heading for any specific location. The apartment was of the efficiency type, with the living area by the front door and a dining area making an “L” to one side. At one point defendant stepped into the dining area, and a short time later one of the officers looked in this part of the apartment. In this area, the officer saw a hash pipe lying next to a stereo receiver. The officer then called more police to the scene. While waiting for their arrival, Mayfield finally produced his identification from the top of a table near the front door.
After the additional officers arrived, the police read defendant the Miranda warnings and asked if he would consent to a search of his apartment. He continued to be uncooperative, insisting that the police had no right to be in his apartment. Finally, after being told that if he refused to consent the police would secure his apartment and obtain a search warrant, he permitted a search. The police then searched the apartment and seized the hash pipe, a forceps with residue burned on it, cigarette rolling papers, a plastic “power hitter,” a frisbie containing papers and a plastic card, a pipe cleaner, and a spare pipe bowl containing residue. Residue in the hash pipe subsequently tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana.
The State charged Mayfield with possession of marijuana. The defendant filed a motion to suppress the items seized from his apartment, which by agreement was heard with the trial on the merits. The motion was denied, the defendant was found guilty and sentenced, and this appeal followed.
Although defendant’s consent is conceded to be voluntary, it alone is not sufficient to sustain the search and seizure. It was the product of the officers’ entry into the apartment whereby they were put in a position to first observe the hash pipe. If the entry was improper, the items seized in the subsequent search of the defendant’s apartment should have been suppressed as the “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). If the entry was proper, the later search and seizure must be upheld under the plain view exception. Texas v. Brown, 460 U.S. 730, 75 L.Ed.2d 502, 103 S.Ct. 1535 (1983). This exception permits a warrantless seizure when three elements are met: (1) the officer must lawfully make his initial intrusion or be properly in a position from which to view an item; (2) the officer must have probable cause to immediately believe the item is connected with criminal activity; and (3) the police discovery of the item must be inadvertent. Texas v. Brown, 460 U.S. 730; Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (plurality), reh. denied 404 U.S. 874 (1971); State v. Parker, 236 Kan. 353, 690 P.2d 1353 (1984); State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982). There is no question but that the officers immediately recognized the incriminating nature of the hash pipe, nor is there any contention that the entry was a subterfuge to look for such evidence. Thus the vital question to be resolved turns on the first element, i.e., whether the initial entry into the defendant’s apartment was lawful.
This question in turn depends on whether the officers were justified in requesting defendant’s identification and, if so, whether they were justified in following him into the apartment when he went to get it.
The trial court found that the initial confrontation, which included the request for identification, was a “stop and frisk situation” and was lawful. Although the officers did not frisk the defendant, if the stop was proper they could have frisked him for their own protection; their persistent demand for identification amounted to a seizure of him. Terry v. Ohio, 392 U.S. 1,17-19, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Deskins, 234 Kan. 529, Syl. ¶ 2, 673 P.2d 1174 (1983). “Stop and frisk” seizures are lawful only if an officer, based on specific and articulable facts and inferences therefrom, has a reasonable suspicion that the person stopped is involved in criminal activity. Terry v. Ohio, 392 U.S. at 17-21; see Brown v. Texas, 443 U.S. 47, 51, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979). After questioning Carol Stark, and upon finding the defendant near her door, the officers reasonably could have suspected the defendant either had committed a crime (pounding on a neighbor’s door for twenty minutes may well be disorderly conduct under K.S.A. 21-4101) or was about to commit a crime. K.S.A. 22-2402(1) permits an officer in such a situation to stop a suspected person and “demand of him his name, address, and an explanation of his actions.” The confrontation in the hallway and demand for identification was thus proper under our statute. Under Terry it was also a valid seizure of defendant under the Fourth Amendment.
Once it is determined that the defendant was lawfully seized, the question then is whether the officers had the further right to go into his apartment with him. They clearly could have done so if they had arrested him. That was exactly the situation in Washington v. Chrisman, 455 U.S. 1, 70 L.Ed.2d 778, 102 S.Ct. 812 (1982). There, an apparently underaged university student was stopped by a campus policeman for carrying a bottle of liquor. When the student offered to go to his room to get his identification the officer went with him. The stop was found to be an arrest, and the court held that the arresting officer’s entry into the arrestee’s room was lawful because the police officer “had a right to remain literally at [the arrestee’s] elbow at all times.” 455 U.S. at 6. In so holding the court expressed primary concern for the officer’s safety as well as his need to prevent escape. As the court said:
“The absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s authority to maintain custody over the arrested person. [Citations omitted.] Nor is that authority altered by the nature of the offense for which the arrest was made.
“Every arrest must be presumed to present a risk of danger to the arresting officer. [Citation omitted.] There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger.” 455 U.S. at 6-7.
This is the same consideration for the Terry justification of a “frisk” of a subject even in the absence of probable cause. Only “unreasonable” searches and seizures are prohibited by the Fourth Amendment. Concern for the officer’s safety justifies such a limited intrusion on the subject’s expectation of privacy and is not “unreasonable” even though the person is only suspected of crime.
In the case at bar defendant had not been formally arrested, yet for Fourth Amendment purposes he had been “seized” when asked for his identification. We need not speculate on the situation where a suspect simply refuses to identify himself and walks away. Defendant here at no time refused to furnish identification, nor did he break off the interview by returning to his apartment. Thus the continuation of the confrontational or custodial relationship between defendant and the officers was at least with the tacit consent of defendant. Defendant ultimately volunteered to go into his apartment for the elusive identification. At that point the officers were concerned about their safety. They so testified, and their testimony was accepted by the trial court. In our view such concern was at least as justified as the officer’s in Chrisman. There the arrestee was a college student whose demeanor was apparently polite and courteous. Here, the suspect was hostile, increasingly belligerent, and although he never refused to identify himself, was unresponsive to questions. The officer’s natural thought was that if defendant were allowed to enter his apartment alone he might well return with a weapon. As the trial court put it, after the argument with defendant and defendant’s display of hostility, “clearly the officer would have been without good sense . . . not to stick to him pretty closely just for his own safety.”
Further, defendant’s later aimless wandering about the apartment justified, for the same self-protection, the officers’ moving from the front door to a place where they could continue to observe his movements and, by chance, espy the incriminating drug paraphernalia.
In summary: The officers were justified in asking defendant for his identification; when he at last volunteered to get it from his apartment they were justified in accompanying him; and being in a place where they had a right to be, they were justified in seizing obvious contraband discovered through inadvertence. The trial court correctly overruled the motion to suppress.
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Bullock, J.;
Johnny Palmer appeals from an order of the Reno County District Court summarily denying, without a fact hearing, his motion for post-conviction relief under the provisions of K.S.A. 60-1507.
Palmer was convicted of aggravated battery (K.S.A. 21-3414) and unlawful possession of a firearm (K.S.A. 21-4204) following a shooting incident in his home in 1980. On appeal both convictions were upheld by this court. State v. Palmer, No. 53,253, unpublished opinion filed July 2, 1982. With the assistance of retained counsel, in December 1983, Palmer filed a motion for new trial based on an affidavit submitted by Mark Reed, a prosecution witness, in which Reed recanted his trial testimony concerning whether he had seen Palmer with a gun (a fact important in both convictions).
The trial judge denied Palmer’s motion for new trial, finding:
“After such review of the trial by the Court, the Court must find that the recanted testimony is wholly untrustworthy.
“The witness, Mark Reed, made statements to the police at the scene of the shooting that basically were aligned with his testimony at trial. It is also obvious from the transcripts that the witness was in fear of the defendant. Now that the witness is also incarcerated with the defendant the evidenced fear of the witness could be used to the defendant’s advantage to prompt such recanting by the witness.
“The transcripts show that the defendant and his girlfriend/victim told one version of the facts and the law enforcement personnel and the other witnesses told another version. The jury chose to believe the latter version of the facts and found defendant guilty. Even if the witness had recanted prior to trial there would still be sufficient evidence for the jury to arrive at the same verdict and, as a reasonable trier of facts, to have found the defendant guilty beyond all reasonable doubt.”
The statement that “other witnesses told another version” in the trial court’s decision refers to the trial testimony of Francis Coffee, who testified Palmer hit her with the gun in his hand shortly before he shot the victim, and to the trial testimony of Calvin Stewart, who testified Palmer had the gun in his possession the evening of the shooting. No appeal was taken by Palmer from this decision and order of the trial court.
On June 28, 1984, Palmer filed a pro se motion for post-conviction relief under the provisions of K.S.A. 60-1507. In a second affidavit submitted with this motion, Reed renewed his recantation and added that the prosecutor knew the statements he (Reed) made against Palmer were false. As grounds for relief, Palmer urged that the trial court erred in denying his motion for a new trial, and further that his constitutional right to a fair trial was denied when the prosecutor knowingly allowed false testimony to be given against him at his trial. The motion was denied by the trial court, as we have previously noted, without evidentiary hearing.
On appeal the sole question raised is whether the trial court erred in denying Palmer’s request for post-conviction relief without an evidentiary hearing.
In the usual case, an allegation that the prosecutor knowingly induced perjury requires a fact hearing. Rodgers v. State, 197 Kan. 622, 419 P.2d 828 (1966). The case at bar is not the usual case, however. Here, Palmer has had a full judicial determination of whether the testimony of Reed at trial was false. That occurred in connection with Palmer’s motion for new trial. The factual determination made was that the trial testimony was not false. No appeal from that determination was taken. Trial court determinations of fact, unappealed from, are final and conclusive. In re Reed, 8 Kan. App. 2d 602, 604, 663 P.2d 675 (1983). Although not strictly required, we have also reviewed the record below and we are additionally persuaded that the questioned fact findings of the trial court are amply supported by substantial competent evidence.
The issue of the falsity of Reed’s trial testimony having been finally concluded adverse to Palmer, there can be no necessity for a further fact hearing to determine if the prosecutor knowingly induced “false” testimony from Reed. The mere statement of the proposition reveals its absurdity.
In our view, if the trial judge had permitted an evidentiary hearing it would have been effective only to question the ethics of the prosecuting attorney. Even if the evidence at such a hearing indicated the prosecutor introduced true evidence under the mistaken belief it was false, it would fail to show a conviction based on false testimony. To allow evidence that could be effective only to question the ethics of the prosecutor would be to allow an improper use of K.S.A. 60-1507. Under these circumstances the position taken by the trial judge was particularly appropriate.
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Meyer, J.;
Kenneth R. Sayles (defendant-appellant) appeals from the sentences he received following guilty pleas to three counts of burglary and two counts of felony theft. Sayles was charged with one count of burglary in Case No. 83-CR-1429 to which he pleaded guilty and was convicted on November 30, 1983. The defendant was then released on an appearance bond pending sentencing which was scheduled for January 19, 1984. While the defendant was free on bond, he was arrested and charged with a burglary and felony theft which had occurred on December 17,1983, Case No. 84-CR-31, and also with a burglary and felony theft that had occurred on December 22, 1983, Case No. 83-CR-2134.
On January 19, 1984, the defendant pleaded guilty to the charges in Case Nos. 84-CR-31 and 83-CR-2134. The defendant was also sentenced on that date to a two-to-ten year term on the burglary charge in Case No. 83-CR-1429, with the sentence to run consecutive to any sentence imposed in Case No. 84-CR-31 and Case No. 83-CR-2134. The defendant was sentenced to two concurrent two-to-ten year terms for burglary and felony theft in Case No. 83-CR-2134, sentences to run concurrent with any sentence imposed in Case No. 84-CR-31 and consecutive to the sentence imposed in Case No. 83-CR-1429. Finally, also on January 19,1984, the defendant was sentenced to two concurrent two-to-ten year terms for burglary and felony theft in Case No. 84-CR-31, sentences to run concurrent with any sentence imposed in Case No. 83-CR-2134 and consecutive to the sentence imposed in Case No. 83-CR-1429. The trial court denied the defendant’s motion to modify the sentences imposed to run concurrent with each other because the court determined that K.S.A. 1984 Supp. 21-4608 did not give the district court jurisdiction to modify its sentences to run concurrently. Defendant timely appeals and the cases have been consolidated.
K.S.A. 1984 Supp. 21-4608(4) addresses the release of a person for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated:
“(4) Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve the sentence consecutively to the term or terms under which the person was released.”
The defendant’s situation fits within one type of release addressed in article 28 of chapter 22 — release on bond after conviction but prior to sentencing — so he was clearly “on release for a felony” as required by K.S.A. 1984 Supp. 21-4608(4) but no sentence had yet been imposed. The conditions or terms of release that may be imposed upon a defendant after conviction to insure he will not flee or pose a danger to the community are discussed in K.S.A. 22-2804 and K.S.A. 22-2802.
The defendant contends that, since under K.S.A. 1984 Supp. 21-4603(3) a court may modify a sentence within 120 days after it is imposed, the trial court had jurisdiction to modify the sentence from consecutive to concurrent. The defendant alleges that K.S.A. 1984 Supp. 21-4608 allows a district court to impose higher sentences, but the final discretion in sentencing rests with the trial court.
Did the district court have jurisdiction to modify the sentence imposed under K.S.A. 1984 Supp. 21-4608(4) to a concurrent sentence? We think not.
K.S.A. 1984 Supp. 21-4608 addresses the imposition of multiple sentences. Subsections (3), (4) and (5) of K.S.A. 1984 Supp. 21-4608 do not mention any discretion by the trial court in imposing concurrent or consecutive sentences, but rather state that subsequently imposed sentences shall be served consecutively. The applicable subsection in this case provides the defendant “shall serve the sentence consecutively to the term or terms under which the person was released.” K.S.A. 1984 Supp. 21-4608(4).
Despite the mandatory language of K.S.A. 1984 Supp. 21-4608(4), the defendant argues the trial court can modify the consecutive sentence to a concurrent sentence under K.S.A. 1984 Supp. 21-4603(3), which provides in pertinent part:
“(3) Any time within 120 days after a sentence is imposed or within 120 days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits.”
Although any possible conflict between K.S.A. 1984 Supp. 21-4608(4) and K.S.A. 1984 Supp. 21-4603(3) has apparently not been addressed by the Kansas appellate courts, the courts have addressed the conflict between 21-4603 and K.S.A. 21-4618 (mandatory minimum sentencing for certain crimes committed with a firearm). In State v. Ramsey, 228 Kan. 127, 135, 612 P.2d 603 (1980), the Kansas Supreme Court stated:
“It is the clear legislative intent of K.S.A. 1979 Supp. 21-4618 to divest the trial court of alternatives to sentencing when a firearm is used by a defendant in the commission of one of the crimes specified in the statute.”
In State v. Rios, 225 Kan. 613, 592 P.2d 467 (1979), the defendant was sentenced under 21-4618 and his motion for modification of sentence pursuant to K.S.A. 1978 Supp. 21-4603(2) was denied for lack of jurisdiction. Rios contended that under 21-4603 the court could grant probation or suspend the sentence because his original sentence met the mandatory provisions of 21-4618. The Supreme Court held:
“In State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978), we specifically held that K.S.A. 1978 Supp. 21-4618 precluded probation or suspension of sentence. If defendant’s position were correct, the trial court could, on motion for sentence modification, grant a disposition of the case that would have been an unlawful disposition at the time of the original sentencing. Such an interpretation would defeat the clear legislative intent of the mandatory sentencing statute.” 225 Kan. at 614.
An analogous situation to Rios is presented in the case at bar. If, despite the mandatory consecutive sentencing language of K.S.A. 1984 Supp. 21-4608, the trial court could later modify the sentence to run concurrently, under K.S.A. 1984 Supp. 21-4603(3), the trial court would be granting what would have been an unlawful disposition at the time of sentencing and thereby defeat the legislative intent of the mandatory sentencing statute.
It is clear that, under the facts of this case, imposition of consecutive sentences is required by K.S.A. 1984 Supp. 21-4608(4).
The decision of the trial court is affirmed. | [
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Parks, J.:
Defendant Marvin Hill appeals his jury conviction for burglary (K.S.A. 21-3715), theft (K.S.A. 21-3701), and attempted burglary (K.S.A. 21-3715 and 21-3301).
At trial, the State’s principal witness, Ernest Heard, testified that defendant Hill waited nearby in Heard’s car while Heard gained entry into a car and unlatched the T-tops. He testified that defendant then drove up and helped Heard remove the T-tops and load them into his car. Although admitting he had been with Heard earlier in the evening, defendant denied any involvement in the crime. He claimed to have been with Andre Louis at a residence in Missouri.
Defendant had endorsed as alibi witnesses Heard, Yvette Tinsley and Andre Louis but called only Louis as an alibi witness. The prosecution objected to Louis testifying because he had been in the courtroom after the court invoked the rule excluding or sequestering the witnesses. Louis admitted being in the courtroom on the second day of trial while testimony was being given, but he was not in the courtroom during defendant’s testimony. The trial judge refused to allow Louis to testify solely because he had been present in the courtroom. Defendant contends that this was error and we agree.
Since the ancient times of Davenport v. Ogg, 15 Kan. *363, *365-66 (1875), it has been held to be error to exclude testimony merely because the witness violated a sequestration order. See also State v. Falk, 46 Kan. 498 (1891)'; Barber v. Emery, 101 Kan. 314, 317, 167 Pac. 1044 (1917). The Davenport opinion held that, absent an indication that the party calling the witness had participated in the wrongdoing of the witness, the testimony should be allowed. Davenport, 15 Kan. at *366. The person violating the order may be punished through contempt proceedings, but their testimony is admissible unless a party to the action participated in the violation by the witness. State v. Cantrell, 234 Kan. 426, 431, 673 P.2d 1147 (1983). In addition, the court may exercise its discretion and limit the testimony of a witness who disobeys a sequestration order to matters which were not covered when the witness was improperly present in the courtroom. See, e.g., State v. Johns, 237 Kan. 402, 699 P.2d 538 (1985).
In most of the recent cases, the Court has been concerned with whether the trial court erred in permitting a witness to testify despite his violation of a sequestration order. See, e.g., State v. Handley, 234 Kan. 454, 673 P.2d 1155 (1983); State v. Cantrell, 234 Kan. at 429-31; State v. Edwards, 209 Kan. 696, 498 P.2d 53 (1972). However, in State v. Carney, 216 Kan. 704, 533 P.2d 1268 (1975), the defendant complained that the court erred in limiting the testimony of a proffered witness. The separation order was requested by the defendant, the witness had been listed as an alibi witness, the defendant and his counsel knew he was present in the courtroom and the proffered testimony involved matters upon which other witnesses had testified while the disobedient witness was present. Nevertheless, the trial court did not disqualify the witness from testifying altogether — he was permitted to testify concerning defendant’s alibi but was not allowed to testify about matters upon which he had heard the testimony of others. The Supreme Court affirmed, holding that no abuse of discretion had been committed in confining the testimony of the witness. The Court emphasized that the knowledge and participation of defendant and his counsel in the witness’ violation of the order was the determining factor in approving even a limited exclusion of the witness. Carney, 216 Kan. at 710. Thus, the Carney decision reaffirmed the principle of Davenport that a witness should not be automatically excluded from testifying because of his violation of a sequestration order and that, indeed, the circumstances in which his testimony should even be circumscribed are limited.
Furthermore, the Court very recently cited Carney and summarized the rules regarding the violation of a sequestration order, stating as follows:
“Ordinarily where a witness violates a court order separating witnesses without the knowledge of the party or his counsel, the witness should be permitted to testify and it is only where the evidence shows that the party who desires to call the witness knew and participated in the violation of the separation order that the court should exclude the witness’ testimony. State v. Carney, 216 Kan. 704, 533 P.2d 1268 (1975).
“. . . Violation of a court order separating witnesses does not ordinarily disqualify a witness from testifying and the trial court, in its discretion, may admit the testimony. State v. Handley, 234 Kan. 454, 673 P.2d 1155 (1983).” State v. Johns, 237 Kan. 402, 406-07, 699 P.2d 538 (1985).
In disqualifying Louis from testifying as a witness, the trial court did not inquire into the knowledge or participation of defendant or his counsel. Furthermore, the court did not consider whether the witness’ testimony could be limited to matters not discussed during the testimony observed in violation of the separation order. In short, the court concluded that the proposed witness was automatically disqualified from testifying without considering all of the circumstances of the violation and exercising its discretion. This was error. Defendant’s counsel stated that he had not seen the witness in the courtroom and, on appeal, asserts that he and defendant had their backs to the spectators and were therefore unaware of Louis’ presence. The State has not disagreed with this assertion. We conclude the witness should not have been disqualified from testifying.
The State contends that defendant failed to preserve his objection to the court’s ruling refusing to allow Louis to testify because no proffer of the excluded testimony was made. K.S.A. 60-405. However, the court’s ruling did not simply exclude evidence; Louis was disqualified from testifying. In Davenport, the court held that where the trial court excludes a witness because the witness, and not his evidence, is incompetent, it is not necessary to make a record of the witness’ testimony. All that is necessary is that the particular reason given for the exclusion is insufficient; a violation of the separation order, without evidence of knowledge or connivance on the part of the defendant, is an insufficient reason. 15 Kan. at *367-68. Therefore, defendant’s failure to make a proffer was not fatal to his claim of error.
Finally, we must determine whether the erroneous exclusion of the witness Louis and his testimony was prejudicial to defendant. Louis was endorsed as an alibi witness. Thus, it is obvious that Louis was going to present alibi testimony material to a determination of guilt. Furthermore, other than the defendant,' Louis was the,sole defense witness. Consequently, it appeal's that the refusal to allow Louis to testify was highly prejudicial to defendant.
We conclude that the trial court erred in disqualifying Louis from testifying because he violated the court’s sequestration order when there was no evidence that the witness’ misconduct was with the knowledge or participation of defendant or his counsel. Defendant is entitled to a new trial as a result of this error.
Although our holding on the exclusion of the alibi witness compels a new trial, we turn to consider the other issue raised by defendant since he contends that two of the charges against him were multiplicitous and cannot both be lawfully prosecuted. The substance of defendant’s argument is that since entry into the car was necessary for the theft of the T-tops, the same proof would be required for the burglary and theft charges such that the two merge.
Multiplicity is the charging of a single- offense in several counts. R is prohibited because a single wrongful act cannot furnish the basis for more than one criminal prosecution. If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge and are not multiplicitous. State v. Roudybush, 235 Kan. 834, 849, 686 P.2d 100 (1984). It is then rather obvious that the offenses of burglary and theft are independent and distinct. See State v. Stoops, 4 Kan. App. 2d 130, 136, 603 P.2d 221 (1979). Proof of an unlawful entry was required to establish a burglary but no such proof was required to show a theft. While it may be true that someone had to enter the car before the T-tops could be stolen, the prosecution did not have to establish that defendant was the person who did so in order to establish that he committed the charged theft. Similarly, it was not incumbent upon the State to show that defendant took actual control over the T-tops in order to establish the commis sion of a burglary. Thus, the separate charges for both burglary and theft were not multiplicitous and the trial court did not err in refusing to dismiss one of the charged offenses.
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Per Curiam:
Defendant Randall Ray Reineking appeals his jury conviction of aiding and abetting the making of a false writing. K.S.A. 21-3205 and 21-3711.
Emil Wiley of Leavenworth County owned two tractors which had been delivered for repairs to Underwood Equipment, Inc. in Franklin County, Kansas. Subsequently, a Topeka bank obtained a judgment against Wiley and an order of garnishment against the two tractors located at the equipment company. In an effort to get his tractors back, Wiley drafted a document entitled “Writ of Replevin” and filed it in the United States District Court in Topeka on April 17, 1984. The writ stated that Wiley was the lawful owner of the two tractors and it directed the sheriff of Franklin County to secure the tractors from Underwood Equipment, Inc. and to deliver them to Wiley. The writ was signed by Wiley and beneath the signature was typed “The Honorable Emil F. Wiley.”
On May 10,1984, at the request of Wiley, defendant Reineking presented a certified copy of the “Writ of Replevin” and an attached “Writ of Execution” to Franklin County Sheriff Rex Bowling. Defendant was wearing a suit and a name tag imprinted with the words “outer barrister”. When Bowling asked defendant if he was an attorney, defendant replied “no” and said he was only serving the process. Defendant then inquired whether the sheriff intended to act upon the order, and the sheriff said that he would first discuss it with the county attorney.
In a complaint filed May 11,1984, Reineking was charged with aiding and abetting Emil Wiley in the making of a false writing by delivering the writ to the Franklin County sheriff with the intent to induce official action. K.S.A. 21-3711. Wiley was separately charged with making a false writing. The two men were tried together and both were convicted, but Reineking appeals separately. At trial, the parties stipulated that the writ was not issued by any state court in Kansas or the United States District Court for Kansas and was not signed by a judge, clerk, or deputy clerk of any of those courts. It was also stipulated that the writ was prepared on or before April 17, 1984.
Defendant first argues that the trial court erred in not dismissing the complaint becausé delivery of a false writing is not an act prohibited by K.S.A. 21-3711, which provides as follows:
“Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.
“Making a false writing is a class D felony.”
Defendant contrasts the definition of making a false writing (K.S.A. 21-3711) with the offense of simulating legal process (K.S.A. 21-3820), which prohibits:
“(a) Sending or delivering to another any document which simulates or purports to be, or is reasonably designed to cause others to believe it to be, a summons, petition, complaint, or other judicial process, with intent thereby to induce payment of a claim; or
“(b) Printing, distributing or offering for sale any such document, knowing or intending that it shall be so used.
“(2) Subsection (1) of this section does not apply to the printing, distribution or sale of blank forms of legal documents intended for actual use in judicial proceedings.
“(3) Simulating legal process is a class A misdemeanor.”
From this defendant concludes the legislature did not intend to proscribe the delivery of a false writing by the terms of K.S.A. 21-3711.
Defendant’s argument is well taken, but it disregards the fact that defendant was charged and convicted of aiding and abetting the making of a false writing. If K.S.A. 21-3711 prohibited the delivery of a false writing, defendant would have been charged with the principal offense and not as an aider and abettor. However, as charged, there can be little doubt that the conduct of delivering a false writing may subject one to prosecution as an aider and abettor of that offense.
“K.S.A. 21-3205(1) provides a person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. It is the rule in this state that mere association with the principals who actually commit the crime or mere presence in the vicinity of'the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. See State v. Williams, 229 Kan. [646] at 661[,630 P.2d 694 (1981)]; State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); State v. Wilson & Wentworth, 221 Kan. [359] at 367, [559 P.2d 374 (1977)]; State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972).” State v. Burton, 235 Kan. 472, 477, 681 P.2d 646 (1984).
To commit the crime of making a false writing one must have the intent to defraud or induce official action. K.S.A. 21-3711. The knowing delivery of the false document to the official who is intended to be induced to act is a type of participation which indicates an intent to further the success of one making the false writing. The trial court did not err in overruling defendant’s motion to dismiss the complaint.
Defendant next contends his delivery of the writ could not constitute aiding and abetting because it occurred after the completion of the principal offense. Essentially, defendant argues that Wiley’s offense of making a false writing was completed on April 17,1984, when the writ was prepared and filed in the United States District Court. Since he did not even arrive in the State of Kansas until May 8, 1984, defendant contends that the trial court erred in failing to instruct the jury that aiding and abetting conduct must occur before or during the commission of the principal offense. He also contends that the court’s instructions were erroneous because they permitted the jury to find that one could be guilty of aiding and abetting the offense of making a false writing without a finding that the guilty party actually aided in the making or preparation of the false writing.
In gauging the propriety of the instructions, each instruction is considered in conjunction with all of the instructions given. State v. Jones, 234 Kan. 1025, 1029, 676 P.2d 1281 (1984). When the trial court has refused to give instructions requested by the defendant, the appellate court will review the evidence supporting those instructions in the light most favorable to the defendant. State v. Crispin, 234 Kan. 104, 109, 671 P.2d 502 (1983).
The premise of defendant’s argument is that Wiley had completed the offense as of April 17, 1984, when the writ was filed in the United States District Court. The writ, prepared by Wiley, directed the sheriff of Franklin County to take steps to recover Wiley’s tractors. The filing of the writ in federal district court alone is not a manifestation of an intent to induce official action since the governmental official ordered to act in the writing is a county sheriff. In fact, the writ filed in the United States District Court presumably would be treated as simply a written request for the court’s issuance of the same. By the terms of the writ, sufficient evidence of Wiley’s intent could only be shown by some statement, effort or attempt to induce the Franklin County sheriff to act. Thus, the crime of making a false writing was not completed by Wiley until it became evident that he knew the writ was not what it purported to be and that he intended to induce official action. The mere drafting of the instrument is only one element of the crime of making a false writing. See State v. Cuezze, Houston & Faltico, 225 Kan. 274, 280-81, 589 P.2d 626 (1979). Therefore,- since the offense of making a false writing involves more than simply preparation of the writing, one may be guilty of aiding and abetting that offense by carrying out acts unrelated to the actual making of the document.
The act of delivering the writ aided Wiley in his intent to induce official action and, thus, it occurred during the commission of the crime of making a false writing. The trial court did not err in instructing the jury that the crime charged was proven if one or more of the alleged acts by Wiley and defendant occurred on or about May 10, 1984. Furthermore, we conclude that the instructions adequately informed the jury that defendant’s conduct must occur before or during the commission of the crime.
Defendant next complains that the trial court erred in consolidating for trial the separate complaints against defendant and Wiley.
K.S.A. 22-3202(3) provides:
“(3) Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Defendant and Wiley were not charged in the same complaint but were tried jointly. “The test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information or indictment and the determination rests in the sound discretion of the trial court.” State v. Tate, 228 Kan. 752, 753, 620 P.2d 326 (1980).
In State v. Roberts, 223 Kan. 49, 55, 574 P.2d 164 (1977), the Court recognized several situations where two or more defendants may be 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.” Quoted in State v. Martin, 234 Kan. 548, 549, 673 P.2d 104 (1983).
If none of the requirements have been satisfied, a misjoinder results and is an absolute ground for reversal and separate trials. State v. Tate, 228 Kan. at 754. When any of the above situations exist, joinder is proper, subject tó a showing of prejudice to either defendant. State v. Mar tin, 234 Kan. at 549. The factors considered in assessing the degree of prejudice necessary to warrant severance include the following:
“(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 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. 75 Am. Jur. 2d, Trial § 20.” State v. Martin, 234 Kan. at 549.
It is within the sound discretion of the trial court to grant separate trials. State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). While it may be economical and efficient to try multiple defendants in one proceeding, the overriding consideration is the right of an accused to a fair trial under the Constitution. State v. Pham, 234 Kan. 649, 654, 675 P.2d 848 (1984); State v. Martin, 234 Kan. at 550. A party claiming an abuse of discretion has the burden of proof. State v. Pham, 234 Kan. at 653.
Defendant contends none of the requirements for joinder are met in the present case. As previously discussed, defendant’s delivery of the writ aided Wiley in his intent to induce official action. Defendant admitted his actions were motivated by a desire to help Wiley regain possession of his tractors. Although defendant had no financial interest in Wiley’s tractors, his delivery of the writ was part of a common scheme with Wiley to obtain the tractors. Thus, the two cases are not initially misjoined.
Furthermore, none of the reasons for compelling severance due to potential prejudice were applicable in this case. The defenses of codefendants are treated as antagonistic if a “dichotomy or near dichotomy” exists between the defenses. State v. Pham, 234 Kan. at 655. A classic example of antagonistic defenses is when each defendant blames the other for the crime. State v. Pham, 234 Kan. at 655. Defendant never denied that he, upon Wiley’s request, delivered the writ with knowledge of its purpose and contents. Moreover, Wiley never testified that defendant directly assisted or counseled him in the drafting of the instrument. Thus, each defendant acknowledged his own actions and did not claim that conduct ascribed to him by the State was committed by his codefendant. Defendant was not prejudiced by the joinder of the two cases for trial.
Defendant also maintains that the trial court erred in refusing to allow the Wabaunsee County Attorney, Edwin Van Petten, to testify whether the document prepared by Wiley was what it purported to be.
As a general rule, the interpretation or construction and the meaning and legal effect of written instruments are matters of law exclusively for the court and not, as defendant suggests, questions of fact for determination by the jury. See State v. Addington, 205 Kan. 640, 653, 472 P.2d 225 (1970). Since the interpretation of the alleged writ and whether it constituted a proper and legal writ of replevin are matters of law exclusively for the court, the trial court properly restricted Van Petten’s testimony.
Finally, defendant argues that the Franklin County District Court lacked venue over the charge.
K.S.A. 22-2607(1) states:
“A person who intentionally aids, abets, advises, counsels or procures another to commit a crime may be prosecuted in any county where any of such acts were performed or in the county where the principal crime was committed.”
Inasmuch as defendant’s delivery of the writ to the Franklin County sheriff furthered Wiley’s intent to induce official action, we conclude .that the Franklin County District Court had proper venue. Thus, the trial court did not err in finding it had proper venue over the charge.
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Briscoe, J.:
The Department of Human Resources (Human Resources) appeals a judgment denying the claim of William-Johnson against Mid America Aerospace, Inc., (Mid America) for vacation pay and statutory penalties. Human Resources is the statutory assignee of Johnson’s wage claim, having taken an assignment of his claim pursuant to K.S.A. 44-324(b) of the Kansas Wage Payment Act. Johnson, a former employee of Mid America, sought two weeks of wages in lieu of the two-week vacation he had scheduled but had not taken prior to his firing.
The two issues presented are: (1) Whether the employee’s accrued vacation time constituted “earned wages” under K.S.A. 44-315(a); and (2) whether there was evidence the employer willfully withheld wages, justifying an award of statutory penalties under K.S.A. 44-315(b).
When Johnson was hired on February 13, 1981, Mid America gave him a copy of the company’s personnel handbook, which set out the following as the company’s vacation policy:
“VACATIONS - The following schedule will be used to determine the amount of paid vacation time given to an employee:
LENGTH OF EMPLOYMENT PAID VACATION EARNED
After 6 months 1 week
After 1 year 2 weeks
After 5 years 3 weeks
There will be no accumulation of vacation. During your yearly review you will be advised of vacation eligibility for the following year. Vacation must be taken by the end of your anniversary year. Vacation time must be cleared by your supervisor. No more than 2 weeks can be taken at one time. If more time is needed, please clear with your supervisor. At least one vacation day must be taken at one time. No 1/2 days will be allowed. Vacation not taken by the end of the year will be lost.”
Both parties rely on these provisions in the handbook to support their arguments and consider the provisions to be part of the employment contract between Johnson and Mid America.
In early April, 1982, after he had worked more than a year, Johnson scheduled a two-week vacation for late May and early June. As required, he obtained the approval of his supervisor.
Mid America fired Johnson on April 19, 1982. Johnson’s position was that Mid America fired him because he filed a workers’ compensation cláim. The employer contended that Johnson quit after a dispute over lunch periods and work assignments. The Division of Employment of Human Resources determined Johnson was eligible for unemployment compensation, based on a finding that he was not discharged for breach of duty [K.S.A. 44-706(b)], but rather “because the employer found the worker to be unsatisfactory.”
Johnson filed a wage claim with Human Resources, seeking two weeks’ pay for his scheduled vacation. The hearing officer granted his claim, awarding $420 of vacation pay and $420 as statutory penalties under K.S.A. 44-315(b). The employer appealed to the district court. The district court reversed the hearing officer, ruling that Johnson had no right to vacation pay because the employment contract made no provision for the conversion of vacation time to a lump sum payment.
Employers are statutorily required to pay earned wages to employees who have been fired. K.S.A. 44-315(a) provides in part:
“Whenever an employer discharges an employee or whenever an employee quits or resigns, the employer shall pay the employee’s earned wages not later than the next regular payday upon which he or she would have been paid if still employed . . . .” (Emphasis added.)
“Wages” is defined in K.S.A. 44-313(c) as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.” (Emphasis added.)
In a regulation adopted by the Department of Human Resources, “or other basis” is defined as:
"all agreed compensation for services for which the conditions required for entitlement, eligibility, accrual or earning have been met by the employee. Such compensation may include, but is not limited to, profit sharing, fringe benefits, or compensation due as a result of services performed under an employment contract that has a wage rate required or implied by state or federal law. Conditions subsequent to such entitlement, eligibility, accrual or earning resulting in a forfeiture or loss of such earned wage shall be ineffective and unenforceable.” K.A.R. 49-20-l(d) (1983 Supp.); emphasis added.
It has been generally recognized that vacation pay is a type of wage. Erickson v. General Motors Corporation, 177 Kan. 90, 98-99, 276 P.2d 376 (1954). In determining whether the employer was liable for a statutory penalty for unpaid wages in Benjamin v. Manpower, Inc. of Wichita, 3 Kan.App.2d 657, 659-661, 600 P.2d 148 (1979), the court acknowledged first that vacation pay was “wages” under K.S.A. 44-313 (c); and then found, after analysis of the terms of the employment contract, Benjamin’s vacation pay was “earned wages” under K.S.A. 44-315 (a). In Benjamin, the employment contract provided that after one year of employment, employees could elect to take either two weeks of paid vacation, or two weeks’ pay.
In Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982), vacation pay was again addressed. The employment contract in Sweet provided: “Any unused accumulated vacation . . . will be paid to an employee who resigns and gives the proper notice.” 231 Kan. at 606. The claimant had resigned without giving notice.
The court upheld the notice requirement as a valid condition precedent to the receipt of vacation pay and concluded that without the fulfillment of this condition, the vacation pay was not “earned wages.” In x-eaching this decision, the court emphasized that the employment contract controls in determining employee rights which accrue under the contract, so long as the terms are not unreasonable or illegal. Sweet, 231 Kan. 604, Syl. ¶¶ 1, 3, 4. The court found nothing in Kansas law “which requires an employer to convert vacation time to a lump sum payment absent agreement in the employment contract.” 231 Kan. at 610.
In the case at bar, there was no agreement to pay employees for unused vacation time. The vacation policy provided only for a paid vacation and warned: “There will be no accumulation of vacation.” The claimant had no contractual right to vacation pay after his discharge.
Human Resources contends that continued employment was a condition limiting the claimant’s right to vacation pay. It argues that, because the employer prevented the occurrence of the condition by firing the claimant, the employer cannot escape liability.
The prevention of condition theory cannot apply here. Continued employment was not a condition limiting a right to vacation pay because under Sweet the claimant had no contractual right whatsoever to vacation pay. When the claimant has no contractual right in the first instance, an analysis of conditions necessary to achieve that right becomes irrelevant.
Human Resources next contends that the trial court erred in reversing the hearing officer’s award of statutory penalties under K.S.A. 44-315(b). The statute provides in part:
“If an employer knowingly fails to pay an employee wages as required under subsection (a) of this section, such employer shall be liable therefor and shall be additionally liable for damages in the fixed amount of one percent (1%) of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to the unpaid wages, whichever is smaller, except that such penalty shall apply only in the event of a willful violation." Emphasis added.
The Supreme Court has recently defined a “willful violation” under K.S.A. 44-315(b) as “one indicating a design, purpose, or intent on the part of a person to do wrong or to cause an injury to another.” Weinzirl v. The Wells Group, Inc., 234 Kan. 1016, Syl. ¶ 4, 677 P.2d 1004 (1984). See Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 411, 582 P.2d 244 (1978).
Here, the hearing officer found that, as the drafter of the vacation policy, the employer:
“knowingly applied an interpretation to such policy which is not contained therein and is in conflict with a proper reading of Respondent's] policy which is a clear and unambiguous statement of the intent of the parties. Accordingly, Respondent is a knowing and willful violator for the purposes of this claim.”
As we have discussed above, the employer’s interpretation of the contract itself was correct. Further, the firing of the claimant is not enough to entitle claimant to statutory penalties under K.S.A. 44-315(b). There was no evidence that the employer discharged the claimant with the design, purpose or intent to injure him by depriving him of his vacation. Without this evidence, the claim must fail.
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Lorentz, J.:
Petitioner, Garry E. Williams, received four disciplinary convictions while an inmate at the Kansas State Penitentiary. The district court, in a habeas corpus proceeding, set aside the four disciplinary convictions and ordered a new hear ing on one of them. Herb Maschner, Director of Kansas State Penitentiary and respondent in the habeas corpus proceeding, appeals the trial court action setting aside the disciplinary convictions.
The facts underlying the disciplinary violations are not in the record and were never placed in evidence in the habeas corpus proceeding, and that is the essence of respondent’s complaint: that the habeas corpus proceeding was decided prematurely without affording respondent an opportunity to present evidence on the merits. The record does disclose that on August 19, 1983, Williams was charged with four disciplinary reports. At the disciplinary hearing, he was found guilty and sentenced to a loss of his good time credits. On appeal, the Secretary of Corrections approved the decision of the penitentiary. Williams then filed his writ of habeas corpus alleging he was unlawfully imprisoned because the four reports were based on a single, event, and only one charge should have been filed. There was only one hearing before the trial judge, and although he requested copies of the disciplinary reports, they were never produced, and no witnesses were called. A procedural question was raised concerning the scope of review of prison disciplinary hearings. With no other evidence being presented, the court directed counsel to prepare briefs on the scope of review. Following submission of briefs, and with no further evidentiary hearing, the court entered an order finding that petitioner should have been charged with only one disciplinary report and that he should be given a new disciplinary hearing. The court also found that the Department of Corrections regulation on cross-examination of witnesses was a denial of due process.
The issues raised on appeal assert that the district court prematurely decided the case without affording appellant an opportunity to present evidence, that proper scope of review of a prison disciplinary proceeding is to determine whether due process requirements are met, and that the cross-examination procedure provided for in the regulations governing disciplinary hearings meets due process requirements.
The findings of the trial court as set out above necessarily include findings of fact. The specific factual finding made by the trial court is contained in its order dated and filed February 14, 1984:
“Therefore, we go down to the actual facts of this case.
“The Court finds that from the evidence that the petitioner should only be charged with one incident report; that he should be afforded another hearing to see whether how many additional days should be withdrawn from good time credits.”
Where the trial court has made findings of fact and conclusions of law, the function of the 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. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984).
As the record before us establishes that no evidence was presented at the habeas corpus proceeding, it cannot be said that the trial court’s factual finding was supported by substantial competent evidence.
Based on the foregoing, we conclude the trial court erred in making factual findings unsupported by substantial competent evidence.
The specific scope of review of a prison disciplinary hearing was clearly set out in Levier v. State, 209 Kan. 442, 450-51, 497 P.2d 265 (1972), when the Kansas Supreme Court made the following statement:
“It should also be emphasized that prison officials as executive officers of the state are charged with the control and administration of the penal institutions of the state and as such are vested with wide discretion in the discharge of their duties. Under familiar rules, that discretion should not be interfered with by the courts in the absence of abuse or unless exercised unlawfully, arbitrarily or capriciously.”
A further statement contained in Levier at 451 holds that:
“[Disputed issues of fact respecting mistreatment of inmates should be determined administratively in a grievance procedure wherein the inmate is afforded the basic elements of due process . . . .”
Although that case dealt with complaints respecting denial of medical treatment and lack of exercise or rehabilitation programs as opposed to the case at bar which involves disciplinary convictions resulting in loss of good time which, in turn, means additional incarceration, we believe it is clear that Kansas should follow the reasoning set out in Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974), which contains a lengthy discussion of the due process requirements involved or to be addressed in an administrative disciplinary hearing resulting in loss of good time credits by an inmate. At page 558 of the Wolff case, the United States Supreme Court holds that when inmates can lose good time credits if they are found guilty of serious misconduct, the minimum requirements of procedural due process, appropriate to the circumstances, must be observed.
We hold that an inmate’s allegation of denial of due process in an administrative disciplinary hearing is sufficient to invoke review by a trial court with the trial court’s scope of review limited to a review of the record to determine if the administrative tribunal acted fraudulently, arbitrarily or capriciously, and whether the inmate was afforded the basic elements of due process.
Finally, we must consider the denial to Williams of the right to confront and cross-examine witnesses in a prison disciplinary proceeding. That question has been dealt with at length by the federal courts. In Jones v. Marquez, 526 F. Supp. 871, 881 (D. Kan. 1981), the Court held that “[t]he right to cross-examine adverse witnesses ... is a matter left to the sound discretion of prison authorities.”
In making the above holding, that court cited Baxter v. Palmigiano, 425 U.S. 308, 47 L.Ed.2d 810, 96 S.Ct. 1551 (1976), which contained an extensive discussion of the right to confrontation of witnesses versus the obvious potential for disruption and for interference with the swift punishment which in individual cases may be essential to carrying out the correctional program of the institution. In short, the United States Supreme Court in the Baxter case held that an inmate should be allowed to call witnesses when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals, with the final determination being left within the sound discretion of the officials who run the state prisons.
This holding is in accordance with K.A.R. 1983 Supp. 44-13-405(k)(2), which provides that in a disciplinary hearing:
“The prosecution shall present its evidence and the defense shall be permitted to cross examine, except as otherwise provided by these regulations.”
and K.A.R. 1983 Supp. 44-13-405(h), which provides that:
“The . . . hearing officer shall have and exercise all powers necessary to ensure the orderly process of the disciplinary hearing proceedings.”
Due to the lack of evidence presented at the trial court review, we cannot say that the failure of the administrative tribunal to allow Williams to cross-examine witnesses was arbitrary or capricious.
The decision of the trial court is reversed and the matter remanded for further proceedings in accordance with this decision. | [
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The opinion of the court was delivered by
Holmes, J.:
This was an action to set aside a deed from a widowed mother (Blanche Freden) to the defendants Dean S. Freden, her son, and Marion J. Freden, his wife, as joint tenants. The plaintiffs, Opal N. Curtis and Noble E. Freden, were also children of Blanche Freden and, together with Dean, constituted all of her heirs at law. The deed was executed by Blanche on April 30, 1971, and conveyed 80 acres of farm land in Oklahoma. Blanche died May 11, 1971, at the age of eighty, and the Oklahoma farm property constituted the bulk, if not all, of her estate. Blanche was a native of Oklahoma but moved to Wichita where she raised her family of three children. Opal married and moved to Missouri and Noble married and settled in Colorado. Dean and his wife, Marion, continued to live in Wichita close to Blanche until 1963 when Dean took a job in Junction City. Shortly after Dean moved to Junction City, Blanche was swindled by a con artist in Wichita and lost most of her life’s savings. In 1965, Dean and Marion prevailed upon Blanche to move to Junction City where she lived alone in an apartment until her death. Dean and Marion, being in the same city, saw Blanche regularly and did many things to assist her in her day-to-day living and in the handling of her farm property in Oklahoma. They provided her with transportation when she wanted to go to the doctor, shopping or other places. They assisted her in getting her income tax information together and in taking her to her accountants and attorney and did many things that one would expect a devoted child to do for an elderly parent. Opal and Noble, not living in close proximity to Junction City, visited their mother on occasion but not often.
Upon Blanche’s arrival in Junction City she established a checking and savings account with Dean’s name on both accounts. She also obtained a safe deposit box in the names of Blanche, Dean and Marion. The accounts and safe deposit box were not utilized by Dean or Marion during the lifetime of Blanche. In 1966, Blanche consulted Robert K. Weary, an attorney in Junction City, for the preparation of a will. Dean was named as executor and trustee in the will, which provided for an ultimate distribution equally to Dean, Opal and Noble. Mr. Weary continued to act as Blanche’s attorney until her death although he never represented Dean or Marion.
On April 22, 1971, Blanche became seriously ill and was taken to the hospital by ambulance. Dean arranged for her admittance and she was placed under the care of Dr. M. L. Wisby, D.O., who was Blanche’s regular doctor, and Dr. Maurice F. Priddy, D.O., a partner of Dr. Wisby. Blanche was suffering from cancer and remained in the hospital until her death on May 11, 1971. On April 30, 1971, Mr. Weary prepared a power of attorney naming Dean as attorney-in-fact for Blanche and a warranty deed conveying the Oklahoma farm land from Blanche to Dean and Marion. These instruments were picked up at Weary’s office by Dean and executed the same day by Blanche in the presence of Donald E. Hamilton, a notary public and employee of Central National Bank in Junction City. At the time of her death, Blanche’s 1966 will remained in her safe deposit box and was not removed by Dean until approximately one and one-half years after her death.
Plaintiffs contend that their mother was incompetent or incapacitated to the point that she could not legally execute the deed in question. In the alternative they contend the deed was exe cuted as a result of undue influence exerted upon their mother by Dean and Marion. Plaintiffs also contend that Dean occupied a confidential relationship with his mother, that the deed was executed at a time when she was aged, weak and infirm, that under such circumstances there is a presumption of undue influence and Dean had the burden of proof to overcome such presumption and also had the burden to show Blanche had the benefit of independent advice. Finally, plaintiffs assert that as Dean had access to Blanche’s original will and did not offer it for probate, he should be barred from any interest in the estate under the provisions of K.S.A. 59-617, et seq.
The case was tried to the court which found in favor of the defendants on all issues. Plaintiffs have appealed, asserting several points as error.
This appeal was taken under our rules in existence prior to January 10, 1977. At the outset we feel constrained to comment that the briefs furnished to the court, by both parties, do not conform to the requirements of old rule 8(b), subsections 2 and 4, 214 Kan. xxvi, in that the briefs are not keyed to the printed record, making it extremely difficult and time-consuming when reference to the record is required. In addition, the printed record was not keyed to the transcript. In view of the condition of the briefs and record, it was deemed necessary for the court to obtain the transcript of all proceedings and make an independent examination thereof.
We will consider plaintiffs’ points on appeal in the order in which they were presented.
“1. It was error to deny the medical doctors treating Blanche Freden the right to express their opinions concerning her capacity and competency to execute a deed to real estate while under the doctors’ care.”
During trial the court heard testimony from Blanche’s doctors concerning her physical and mental well-being during the period of her last illness. Dr. M. L. Wisby, D.O., had treated Blanche for several years prior to her death and during her stay in the hospital from April 22, 1971 to April 25, 1971, when he left on vacation. He returned May 7, 1971, and treated her until her death on May 11, 1971. During the time from April 25th to May 7, 1971, his partner, Dr. Maurice F. Priddy, D.O., treated Blanche. Although the trial judge permitted Dr. Wisby to present evidence of Blanche’s general condition and state of mind, he refused, on direct examination, to allow him to state his ultimate conclusion as to his opinion of Blanche’s mental competency on April 30, 1971, the date the deed was signed. On cross-examination, however, the following took place:
“Q. You did not see her until that time on the 23rd, until the 7th of May?
“A. I did not.
“Q. So you do not know her condition, mental state on April the 30th, 1971?
“A. No.”
Dr. Wisby was examined at length and his testimony covers forty-two pages of the transcript. The court allowed a wide latitude in the questioning of the doctor and much of his testimony was based upon the nurses’ notes and other hospital records. All of the hospital records were admitted in evidence, without objection, and were available to both doctors during their testimony.
Dr. Priddy, the attending doctor from April 25, 1971, to May 7, 1971, also testified. Again the trial court allowed wide latitude in the scope of the examination. The testimony covers thirteen pages of the transcript and Dr. Priddy indicated that, as his treatment of Blanche occurred some four years before, his memory was somewhat hazy. He also testified that he made no notations or any records concerning Blanche’s mental condition during the time she was under his care. He was not allowed to testify as to his ultimate conclusion of Blanche’s competency on April 30, 1971.
K.S.A. 60-456(d) provides:
“Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
As a general rule, the qualifications of an expert witness and the admissibility of his testimony are matters for the determination by the trial court in the exercise of its discretion. Newton v. Hornblower, Inc., 224 Kan. 506, 522, 582 P.2d 1136 (1978); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978); State v. Brooks, 217 Kan. 485, 487, 536 P.2d 1365 (1975); Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973).
While the excluded testimony might very well have been admitted by the trial court, we cannot say it was an abuse of discretion to refuse the opinion testimony of Drs. Wisby and Priddy.
In Atkins v. Bayer, 204 Kan. 509, 464 P.2d 233 (1970), in considering the failure to admit opinion evidence, this court stated at page 511-512:
“However, the fact that it was not does not require reversal. 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. We think any error in the exclusion was rendered harmless because of other testimony given by the expert witness.”
While Atkins involved the opinion of a police officer in an automobile collision case, the principle enunciated applies equally in the instant case. Assuming the exclusion of the opinion testimony could be considered error, both doctors testified at length as to their observations concerning Blanche’s physical and mental condition and any such error would have been rendered harmless. We find no merit in appellants’ first point.
“2. In the event the court found that Blanche Freden was competent to execute a deed to real estate on April 30, 1971, then the court committed error by not requiring the grantee to establish by clear and convincing evidence that the conveyance was the will, desire and freely formed intention of the grantor and that the grantor clearly understood what she was doing at the time the deed was executed.
“3. The court erred in failing to find that a confidential relationship existed between grantor and grantee and that the conveyance occurred while grantor was weak and infirm requiring application of the independent advice rule.”
We will consider appellants’ second and third points together. In these points appellants challenge the validity of five of the trial court’s findings of fact and conclusions of law, to-wit:
“I. On the 30th day of April, 1971, the grantor, Blanche Freden, was competent at the time of the execution of the Deed and understood its nature and that the Oklahoma farmland was conveyed to Dean and Marion Freden was fair in light of the desires of Blanche Freden in excess of ten (10) years.
“2. That the relationship between Dean Freden and his mother, Blanche Freden, was a warm and close relationship but no confidential fiduciary relationship existed between Dean and his mother at the time of the execution of the Deed.
“3. That it was the desire of Blanche Freden to convey the property to Dean Freden from her estate prior to her move to Junction City, Kansas.
“5. That the express desire of Blanche Freden prior to her death was to transfer the farm to Dean Freden. She had helped the other children prior to her death, and had expressed such intent to Earl and Ida Hane.
“6. The conveyance of property dated April 30, 1971, should not be set aside and was not an overreaching, unfair, or breach of a confidential fiduciary relationship on the part of Dean Freden, nor was the Deed to him in trust for the Plaintiff.”
Appellants first question the findings of the trial court that no confidential fiduciary relationship existed between Dean and his mother at the time of the execution of the deed. They urge that the trial court should have found a confidential relationship existed between Dean and his mother whereupon the burden would rest upon Dean to show the transaction was conducted in good faith and did not result from the exercise of undue influence on his part. See Frame, Administrator v. Bauman, 202 Kan. 461, 449 P.2d 525 (1969).
The mere relationship of parent and child does not raise a presumption of a confidential and fiduciary relationship. Nelson, Administrator v. Dague, 194 Kan. 195, 196, 398 P.2d 268 (1965); Winkler v. Korzuszkiewicz (Shusky), 112 Kan. 283, 286, 211 Pac. 124 (1922); Clester v. Clester, 90 Kan. 638, 135 Pac. 996 (1913). Neither does the fact that a gift of real estate is made by deed from a parent to a child in and of itself raise a presumption of overreaching which would invalidate the deed. Nelson, Administrator v. Dague, 194 Kan. at 196-197.
Whether or not a confidential or fiduciary relationship exists depends on the facts and circumstances of each individual case. This court has refused, for that reason, to give an exact definition to fiduciary relations. Nelson, Administrator v. Dague, 194 Kan. at 197. This court has commented:
“Whether such a relationship is shown to exist is an evidentiary question. It is a question which must be determined in each case by the trier of the facts.” Wilkinson v. Cummings, 194 Kan. 609, 612, 400 P.2d 729 (1965).
Blanche evidently inherited the property in Oklahoma from her parents. It appears they owned a quarter section with Blanche receiving one eighty-acre tract and her brother, Earl Hane, receiving the other. Earl had farmed the entire quarter section as a unit for over forty years and had remained in close contact with his sister during the entire period until her death. Earl and his wife, Ida, visited Blanche frequently and handled all the farming transactions and accountings with her. Both Earl and Ida testified that Blanche had told them for several years (even before the 1966 will was executed) that Dean was to have the farm and she was going to deed it to him.
It was also brought out through testimony of Earl and Ida Hane that Blanche had, in more prosperous times, lent money to all three children but that Opal and Noble had not repaid their debts. This evidently irritated Blanche and was mentioned by her on several occasions. While there is conflicting testimony from appellants, the Hanes also testified they were present at the Junction City hospital on May 2 and 3, 1971, that Blanche appeared to be in complete control of her mental processes, and there was no question at that time concerning her ability to perceive and understand and know what was going on about her.
While it appears clear that Dean and Marion maintained a close and warm relationship with Blanche, the trial court found as a fact that no confidential fiduciary relationship existed between Dean and his mother. A confidential relationship is never presumed and the burden of proof is upon the party asserting it. Paul v. Smith, 191 Kan. 163, 380 P.2d 421 (1963).
The determination of whether a confidential relationship existed was one of fact and our scope of review is to ascertain whether there is substantial competent evidence to support the findings of the trial court. Cersovsky v. Cersovsky, 201 Kan. 463, 441 P.2d 829 (1968). Further, we are required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521 (1969).
There is no doubt Dean stood in a much closer and more intimate relationship with his mother than either Opal or Noble, but such, in and of itself, does not necessarily establish a confidential relationship.
Although there is evidence to the contrary, the record reflects substantial competent evidence to support the trial court’s findings of fact and conclusions of law.
“4. The court erred in failing to find that the grantees had possession of grantor’s will at the time of grantor’s death, the same providing for equal distribution of all real estate, and knowingly withheld it from the probate court in contravention of K.S.A. 59-618.”
Within thirty days of Blanche’s death, Robert K. Weary, the attorney who had represented Blanche for years prior to her death, mailed copies of the will to all three children. There appears to have been very little property, if any, other than the Oklahoma farm and there was discussion among all three children about avoiding probate of the estate.
The trial court found:
“4. There was no requirement on Dean and Marion Freden to probate the Will, in light of the transfer of the property prior to her death. Noble Freden and Opal Curtis would have had the same obligation as they received a copy of the Will in June of 1971.”
K.S.A. 59-616 provides no will shall be effectual unless admitted to probate. 59-617 requires that the will be submitted for probate within nine months of the death of the decedent. Prior to 1972, the time period was one year but the reduction in time has no bearing upon the question before the court. 59-618 provides in part that any person who has possession or knowledge of a will shall submit it for probate within the statutory time and further provides that if a will is withheld then any innocent beneficiary may submit the will for probate within ninety days after such beneficiary has knowledge of such will and within five years of the death of the testator.
There is no showing of any attempt by Opal or Noble to secure the admission of Blanche’s will to probate; the time for doing so has long expired and appellants cannot now be heard to complain.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an original action seeking a writ of mandamus to compel the opening of sealed bids which have been submitted for the construction of the Honey Bee Lodge and Hospital Care Facility at the Kansas Neurological Institute, a state owned and operated institution.
By virtue of the issues presented in this case, bidding on other state construction contracts was delayed until this case was resolved. Hearing of this matter was expedited by a preferential setting for argument upon joinder of the issues and stipulation of the facts. The case was briefed by the parties and amici curiae and was orally argued on March 28, 1978. A brief memorandum opinion was filed April 6, 1978, the same to be augmented by a subsequent formal opinion. With this procedural background, we turn now to the formal opinion:
K.S.A. 44-201 provides:
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter [djefined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation, or work shall be the current rate. The ‘locality’ for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality.
“Eight hours shall constitute a day’s work for all laborers or other persons employed by or on behalf of the state of Kansas or any municipality of said state, except in cases of extraordinary emergency which may arise, in time of war, or in cases where it may be necessary to work more than- eight hours per calendar day for the protection of property or human life. Laborers or other persons so employed, working to exceed eight hours per calendar day, shall be paid on the basis of eight hours constituting a day’s work. Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed.
“And laborers and other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state of Kansas or any municipality thereof shall be deemed to be employed by or on behalf of the state or such municipality so far as the hours of work and compensation herein provided are concerned.
“That the contracts hereafter made by or on behalf of the state of Kansas or by or on behalf of any county, city, township or other municipality of said state with any corporation, person or persons which may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight (8) hours in any one calendar day except in cases of extraordinary emergency (as defined in this act); such contract shall contain a provision that each laborer, workman or mechanic employed by such contractor, subcontractor or other person about or upon such public work shall be paid the wages herein provided: Provided further, That the provisions of this act in regard to hours worked per calendar day shall not apply to the construction, reconstruction, maintenance, or the production of local materials for: Highways, roads, streets, and also the structures and drainage in connection therewith; sewer systems; waterworks systems; dams and levees; canals, drainage ditches; airport grading, drainage, surfacing, seeding, and planting.”
The specifications for the Honey Bee Lodge and Hospital Care Facility incorporated the provisions of K.S.A. 44-201 which require the contractor to pay its employees the “current rate of per diem wages,” as defined therein. Specific wage rates were not included in the specifications. This is the standard procedure on state contracts. The plaintiff and others submitted bids based on these specifications. Prior to the opening of the bids, the Attorney General advised the Director of Architectural Services and the Secretary of Administration that the specification requiring contractors to pay the “current rate of per diem wages” was not in compliance with K.S.A. 44-201 as the statute required the inclusion in the specifications of a detailed statement of the precise prevailing wage for each classification of workmen whose services would be required in the construction of the Honey Bee Lodge. The Attorney General further advised that the opening of the sealed bids should be deferred until the wage rates were determined, an appropriate addendum added to the specifications, and bidders afforded an opportunity to submit amended bids. The Director of Architectural Services subsequently returned the unopened bids. The plaintiff brings this action to compel the opening of the bids.
The plaintiff contends K.S.A. 44-201 is unconstitutionally vague and defies meaning and effect; is violative of the rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution; and infringes upon the contract rights of the citizens of Kansas. The plaintiff argues that, in effect, determining the current rate of per diem wage for each class of workmen is so difficult as to fail for vagueness. The constitutional arguments raised by the plaintiff are based on the statute as interpreted by the Attorney General. The plaintiff, in reality, is contending that the statute is unconstitutional if the Attorney General’s interpretation is correct. With various modifications this law has been in effect since 1891. Originally criminal penalties were provided for violation of the eight-hour day provisions, but were not held applicable to the wage provisions (State v. Blaser, 138 Kan. 447, 26 P.2d 593 [1933]).
The Attorney General’s interpretation of K.S.A. 44-201 would, for all practical purposes, expand the statute into a mini Davis-Bacon Act (40 U.S.C. § 276a et seq.). The Attorney General argues that this was the legislative intent all along although 87 years elapsed before such an “intent” surfaced in Attorney General Opinion No. 78-42. One of the many difficulties with this rationale is that the Davis-Bacon Act expressly mandates the setting forth of wage scales in the specifications as well as how and by whom such determination shall be made, contrary to K.S.A. 44-201. Also, our original act was passed 40 years prior to the enactment of the Davis-Bacon Act.
K.S.A. 44-201 clearly intends that for each day a workman labors on a contract covered by the statute, he shall be paid the current per diem rate for the type of work he is performing. The previous actions before the court for violation of the statute primarily involve workmen who felt they performed work at less than the requisite wage or worked more than eight hours per day. The provisions contained in the statute are adequate for determining specific current rates of per diem wages on such controversies. The statute adequately serves this purpose and is a constitutionally valid enactment by the legislature.
The interpretation, of K.S.A. 44-201 by the Attorney General which would require the specifications to include the current rate of per diem wages for each class of workmen who might be employed by the winning contractor and his subcontractors to work on the construction job is an erroneous and improper expansion of the statute beyond its clear meaning, import, and intent.
The Director of Architectural Services correctly applied the statute when he included in the specifications the statutory requirement that workmen be paid the current per diem wages and the sealed bids received thereon should have been opened. The plaintiff is entitled to a writ of mandamus.
Upon due consideration by a unanimous court, we conclude that: (1) K.S.A. 44-201 is a constitutionally valid enactment of the legislature; (2) the requirement in the specification that the contractor pay the “current rate of per diem wages” without enumerating specific wage rates was a correct application of the statute; (3) the interpretation by the Attorney General that K.S.A. 44-201 requires the inclusion of specific wage rates in bid specifications is erroneous; and (4) a writ of mandamus should be issued. Defendant Director of Architectural Services is ordered to proceed forthwith with the bidding process on the Honey Bee Lodge and Hospital Care Facility in accordance with conclusions reached herein. | [
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WHEREAS, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Phillip Leon, and
WHEREAS, Following a full hearing as to such complaint, the State Board of Law Examiners found that Phillip Leon, Wichita, Kansas, commingled child support payments with his personal funds, thus depriving a client of funds to which she was lawfully entitled for an unreasonable time. The conduct constitutes a violation of DR 9-102 of the Code of Professional Responsibility, relating to preserving identity of funds and property of a client (220 Kan. cxxvi), and
WHEREAS, The State Board of Law Examiners has made a written recommendation to this Court that said Phillip Leon be disciplined by “Public Censure” as provided by Rule 203 (a) (3) (220 Kan. lxxxiii), and
WHEREAS, In accordance with Rule 213 (c) (220 Kan. lxxxviii), a copy of the report, findings and recommendations of the Board was mailed to respondent on June 23, 1978, along with a citation directing respondent to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
WHEREAS, Under date of July 15, 1978, the respondent filed his response to the citation, stating that he did not wish to file exceptions to the report, findings and recommendations, and
WHEREAS, On the 22nd day of September, 1978, after notice to respondent, a hearing was held before the Court and respondent was permitted to make a statement regarding the discipline to be imposed. The State of Kansas appeared by Philip A. Harley, assistant attorney general, and respondent appeared in person, and
WHEREAS, Upon consideration of the record and the statement by respondent, and being fully advised in the premises, the Court accepts the report, findings and recommendations of the State Board of Law Examiners.
By Order of the Court, dated this 22nd day of September, 1978.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Phillip Leon be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this ORDER OF PUBLIC CENSURE be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a summary judgment entered in favor of defendant Roger L. McCollister. The facts indicate that plaintiff Mary Galvan was sued by Ed Marling Stores, Inc., for failure to pay money due on an installment sales contract. Plaintiff contacted the Legal Aid Society of Topeka, Inc., to obtain legal representation. A staff attorney, Larry Rute, agreed to represent her. On June 12, 1975, plaintiff was contacted by Rute by telephone and was told Marling’s would settle its lawsuit if she would make a $250.00 cash payment. Pursuant to this agreement, plaintiff allegedly delivered $250.00 in cash in an unmarked envelope to the Legal Aid office that afternoon and gave it to a secretary.
About one week later, plaintiff called her attorney, who advised her he had not received the money. An investigation was made and the money did not turn up. The secretary denies the plaintiff gave her any envelope or money. Subsequently, Legal Aid denied plaintiff had brought the money to its office.
Plaintiff filed suit against the Legal Aid Society, Roger McCollister, and the secretary who allegedly received the money. On a motion for summary judgment the trial court dismissed McCollister from the action. Plaintiff appeals from that order. For the reasons set forth below we hold the trial court was correct.
Plaintiff’s theory in her cause of action was that the money had been either embezzled or negligently lost by defendants. Plaintiff further alleged a contractual relationship between McCollister and plaintiff. In discovery, plaintiff admitted she had absolutely no evidence that McCollister knew about, took, lost, or had any contact with her money. She further admitted she had no contact with him until approximately one month after the alleged loss of money.
The only issue before this court is whether McCollister is potentially liable for the loss by virtue of the doctrine of respondeat superior. McCollister was the chief staff attorney and executive director of the Legal Aid Society. He did not have an attorney-client relationship with plaintiff, nor is there any evidence to connect him directly with the loss. The only possible source of liability is through the doctrine of respondeat superior, which we believe is inapplicable. As stated in McFeeters v. Renollet, 210 Kan. 158, 161, 500 P.2d 47 (1972), “[A] director or officer of a corporation does not incur personal liability for its torts by reason of his official character.”
The universal legal rule is that a servant or other agent is not liable for the dereliction of a fellow worker or agent under agency principles. The reporter’s notes in the Appendix to Restatement (Second) of Agency § 358 (1958) state:
“The cases are unanimous in holding that a servant or other agent is not liable for the derelictions of fellow workers or other agents of the same principal. In the absence of wrongful directions or wrongful control or some other element involving wrongful conduct, the doctrine of respondeat superior does not apply to agents who are not masters. On the other hand, the rule stated herein should be contrasted with the rule with reference to the liability of an agent or servant for his subagents or subservants, as stated in § 362. . . (p. 602.)
Plaintiff also argues McCollister is liable because of the fact he is an attorney and is jointly liable for the acts of his fellow attorneys, citing the professional corporation law of Kansas, K.S.A. 17-2706, et seq. The argument has no merit. Defendant was an employee of the Legal Aid Society, a nonprofit corporation, and as such the professional corporation act applicable to attorneys does not apply.
Further arguments of plaintiff have been considered and are held to be without merit.
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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 which found Clarence Wayne Reeves (defendant-appellant) guilty of one count of aggravated robbery (K.S.A. 21-3427).
The appellant contends the trial court erred in allowing improper closing argument by the prosecutor; in allowing the state to introduce evidence of other crimes pursuant to K.S.A. 60-455; and in overruling his motion to suppress evidence obtained from a search of his trailer and automobile. He also challenges the sufficiency of the evidence to sustain his conviction.
On December 17, 1975, at approximately 7:00 p.m. an attempted robbery occurred at the Poor Boy Cafe and Lounge located on U.S. Highway 81 in Sumner County, Kansas. The robber was wearing a brown plaid coat, a dark hooded jacket underneath the coat, and dark pants. His face was covered by dark hosiery. He carried a 12-gauge sawed-off shotgun with a white string tied around both ends similar to a rifle sling. His attempts to rob the cafe were thwarted when a scuffle with the owners ensued. Witnesses testified the robber escaped in a small, light-colored foreign car which had a piece of cardboard in the window on the driver’s side behind the driving position. The driver of the car was unidentified but two persons were seen in the vehicle as it fled. A description of the car was broadcast to the Sumner and Sedgwick County sheriff’s departments.
Later that same evening at approximately 8:30 the Thomas Market of 5880 South Broadway in Wichita, Kansas, was robbed of $347.93 in cash and checks. Mrs. Judith Mattocks, a cashier, was alone in the store when the robbery occurred.
Mrs. Mattocks testified the robber was wearing brown jersey knit gloves, a blue hooded sweatshirt, a brown CPO-type coat and dark slacks. His face was covered with a stocking and he had what appeared to be a shotgun shell in his mouth. She described the robber’s shotgun as sawed-off with brown wood on a single barrel. Following the robber’s instructions she placed the money from the cash register in a number eight pound Georgia Pacific brown paper bag. After the robber left the store Mrs. Mattocks telephoned the Sedgwick County sheriff’s department.
At 8:41 p.m. on the same evening Officer Bruce Beaudette of the Sedgwick County sheriff’s department was informed by radio dispatch of the robbery at the Thomas Market. He was then only three blocks away from the market. As he drove south on Broadway Street, Officer Beaudette noticed a car pulling out of the Midway Baptist Church parking lot north of the Thomas Market. The car matched the description broadcast earlier of the get-away car from the Poor Boy Cafe and Lounge, with cardboard in the same window as previously indicated. At the trial Officer Beaudette identified photographs of the appellant’s car as the same car leaving the church parking lot.
Detective Daniel E. Bardezbain of the sheriff’s department located the car seen by Officer Beaudette in front of the appellant’s trailer at 5935 South Broadway a few blocks from the Thomas Market. He requested assistance from other officers who arrived at the scene at approximately 9:05 p.m. Detective Joseph Noce who arrived at the scene testified the appellant and his codefendant Keith F. Kulper were arrested and searched at the 5935 South Broadway address. After advising the appellant he was investigating the Thomas Market robbery and the Sumner County attempted robbery, Detective Noce requested permission to search the appellant’s trailer and car. The appellant replied, “I don’t have anything to hide, I wasn’t involved in the robberies, go ahead and search it.” Detective Noce then touched the hood of the appellant’s car and noted it was warm.
Thereafter officers from the sheriff’s department searched the car and trailer. A partial box of Federal brand shotgun shells with number eight size shot was found on the dashboard of the car. Numerous items were found inside the trailer including a sawed-off 12-gauge shotgun secreted in a false bottom of the couch, a brown plaid coat, brown gloves, dark blue panty hose pieces, a blue hooded sweatshirt, blue jeans, a number eight pound Georgia Pacific grocery bag, a wad of currency totaling $78 stuffed between a counter and wall in the bathroom and three other wads of currency totaling $133 stuffed in the heating vent in the living room.
The only charge filed in Sedgwick County concerned the aggravated robbery of the Thomas Market.
Prior to the commencement of his trial the appellant’s motions to suppress evidence and to limit the admission of any evidence of the attempted robbery of the Poor Boy Cafe and Lounge were overruled. The jury found both the appellant and Keith Kulper, tried jointly, guilty of the aggravated robbery of the Thomas Market. The appellant’s motion for a new trial was denied and his appeal has been duly perfected.
The appellant contends reversible error was committed during closing argument when the prosecuting attorney commented upon the appellant’s failure to testify.
During the closing argument of Mr. Taylor Neuschwander, counsel for the appellant’s codefendant Kulper, the following statement was made:
“. . . I want to thank you for your time and for your attention that I noticed you paid to the evidence as it has come in, and I think we do need to make some sort of explanation to you as to why Mr. Kulper is not testifying in this matter. I am sure that raises some questions in your mind. Well, you will recall from the Court’s instruction No. 5 that the law places the burden of proof upon the State to prove that the defendant is guilty. And the law does not require that the defendant prove his innocence. Accordingly you must assume that the defendant is innocent unless you are convinced from all of the evidence in this case that he is guilty and you should examine and evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. And the test you have got to use in this concern is whether or not Mr. Kulper is guilty as charged is if you have a reasonable doubt as to the claims made by the State you should find the defendant not guilty. And you were also instructed that you should not consider the fact the defendant did not testify in arriving at your verdict in this case. Well, the reason Mr. Kulper did not testify in this case is that the State has failed to establish beyond a reasonable doubt all of the elements they have to establish in order for you to find Mr. Kulper guilty of the crime of which he is charged. . . .” (Emphasis added.)
The prosecutor for the state, Mr. James Rumsey, subsequently responded:
“Mr. Rumsey: If it please the Court, Mr. Roth and Mr. Neuschwander. Everyone of you jurors promised that you would follow the instructions in this case. And the eighth instruction says: ‘You should not consider the fact that the defendants did not testify in arriving at your verdict.’ And first Mr. Neuschwander asks you to consider the fact why they didn’t. The constitution under the Fifth Amendment guarantees the right to even not incriminate oneself in a criminal proceeding. You can judge for yourself if that thing should or ought to be considered in your deliberations. I am not supposed to comment on that. I can’t comment on it.
“Mr. Roth: Your Honor,—
“The Court: Mr. Rumsey, please, then don’t do so.
“Mr. Rumsey: Your Honor, I thought I would invite comment by Mr. Neuschwander.
“The Court: The jury is instructed to disregard those remarks.” (Emphasis added.)
It is now axiomatic that the prosecutor in a criminal case may not comment upon an accused’s failure to testify. (See Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 [1965]; State v. Wilson & Wentworth, 221 Kan. 359, 365, 559 P.2d 374 [1977]; and State v. Johnson, 219 Kan. 847, Syl. 2, 549 P.2d 1370 [1976].)
In addition Kansas codifies this law by statute. K.S.A. 60-439 makes comment by the court or counsel impermissible when the defendant exercises his privilege not to testify. (State v. Perry, 223 Kan. 230, 235, 573 P.2d 989 [1977].)
Here, Mr. Rumsey’s statement was definitely a comment upon the appellant’s failure to testify and was improper. In effect, he told the jurors to disregard the instruction given by the trial court and judge for themselves what to consider in their deliberations. This he cannot do.
The Supreme Court of the United States has declined to hold that a violation of the Griffin rule is prejudicial per se. In other words, a violation does not automatically constitute reversible error. (See Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 [1967].) Therefore, our court must determine whether the prosecutor’s remark constitutes reversible error in this case.
Generally, a defendant’s right to complain of error in closing argument is precluded when the error is invited or provoked by statements made by the defendant or his counsel. (State v. Clark, 222 Kan. 65, Syl. 9, 563 P.2d 1028 [1977]; and Annot., 24 A.L.R.3d 1093, 1120 [1969].) The situation presented here is unique, however, because Mr. Rumsey was responding to remarks made by counsel for the appellant’s codefendant. Thus, neither the appellant nor his counsel invited the error. We hold the prosecutor’s statements in this case focused attention on the appellant’s failure to testify and were so prejudicial as to be incurable.
Other points asserted by the appellant have been reviewed and are found to have insufficient merit to warrant extended discussion.
Accordingly, the judgment of the lower court is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the state asking this court to reverse a judgment of acquittal and reinstate a jury verdict. The defendant was charged with sale of heroin (K.S.A. 1977 Supp. 65-4127a).
This case began in the spring of 1976 in Johnson County, Kansas, when officers of the Johnson County sheriff’s office arrested Stanley Shrout for possession of marijuana. Upon learning that Shrout might have knowledge of drug traffic in the Kansas City metropolitan area, the City-County Investigative Squad (C.C.I.S.) convinced Shrout he should become an informant. In exchange for cooperation the C.C.I.S. agreed not to seek prosecution for possession of marijuana, granted Shrout immunity for other drug possession charges, and paid him certain specified sums of money for successful “busts.” According to the terms of the arrangement Shrout would arrange buys with drug dealers so the C.C.I.S. could make drug arrests.
On April 22, 1976, Shrout contacted Billy Morgan, a drug dealer who lived in Missouri, to arrange a heroin buy. Morgan did not have any heroin but told Shrout he would get in contact with someone who could get him some heroin. Morgan contacted the defendant, Ron Palermo. Defendant also said he did not have any heroin, but he knew how he could get some.
Morgan was reluctant to come into Kansas and told Shrout he would have to come into Missouri to pick up the heroin. When Shrout relayed this information to the C.C.I.S. it told him to offer Morgan money to come into Kansas with the drugs; otherwise the C.C.I.S. could not arrest Morgan for the sale of heroin. After being offered a sum of money for travel expenses, Morgan agreed to drive from his home in Grandview, Missouri, to a predetermined location a few feet inside the Kansas state line. Morgan contacted defendant and they agreed to conclude the sale. Morgan then drove to Kansas where he met Shrout. Shrout gave Morgan the buy money and Morgan drove to meet defendant. Defendant and Morgan drove to an apartment complex in Kansas City, Missouri. Defendant went into the apartment with the money and returned to the car a short time later with a packet of heroin. Morgan then took defendant home and delivered the drugs to Shrout, who was waiting in Kansas. A second purchase using the same procedure took place the next day.
Criminal charges were commenced in Kansas against defendant for the sale of drugs to Shrout. During trial defendant moved to acquit on the basis the court had no jurisdiction. The trial court reserved its ruling and the trial proceeded. The jury found defendant guilty. After trial defendant filed another motion for acquittal. Upon reconsideration the trial court agreed the State of Kansas had no jurisdiction to file the charges and acquitted defendant. The state took this appeal.
The first issue concerns the question of jurisdiction. It is the state’s theory here and at trial that defendant is guilty of the crime for which he was convicted because he aided and abetted Morgan in the sale of heroin to Shrout and the sale took place in Kansas. According to the state, jurisdiction to try defendant attaches because of K.S.A. 21-3104, which states:
“(1) A person is subject to prosecution and punishment under the law of this state if:
“(a) He commits a crime wholly or partly within this state; or
“(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; . . .”
We do n.ot dispute the theery pf law that an aider and abettor may be tried and convicted in the same manner as a principal (K.S.A. 21-3104[1]; State v. Smolin, 221 Kan. 149, 557 P.2d 1241 [1976]). This rule does not control the question before us.
The concept of vicarious criminal responsibility includes the idea that an aider and abettor is guilty because he intentionally aids and abets another in the commission of a crime (K.S.A. 21-3104[1]), or that in the pursuance of committing an intended crime it is reasonably foreseeable that another crime is committed or attempted (K.S.A. 21-3104[2]). The state cannot hold an accomplice liable for a crime totally unforeseeable. Jurisdiction over a defendant for his criminal act exists because the act was committed, intended to be committed, or foreseeably could have been committed within the state seeking to prosecute the defendant. In Strassheim v. Daily, 221 U.S. 280, 285, 55 L.Ed. 735, 31 S.Ct. 558 (1910), the United States Supreme Court held that a state may prosecute an individual for acts done outside a jurisdiction when he intends to and does commit a crime within that jurisdiction. See also, Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, 5 A.L.R.3d 879, cert. denied 375 U.S. 856, 11 L.Ed.2d 83, 84 S.Ct. 118 (1963). We feel the natural corollary to this rule is that a state does not have jurisdiction over an individual for a crime committed within that state when he was located outside the state, did not intend to commit a crime within the state, and could not reasonably foresee that his act would cause, aid or abet in the commission of a crime within that state.
Here thg evidence shows, and the state concedes, that this defendant did not intend to sell drugs in Kansas, nor did he have any idea the drugs were purchased for resale in this state. Under the facts of this particular case the trial court had no jurisdiction to try defendant for the sale of heroin in Kansas and it was correct in acquitting defendant.
In view of our conclusion on jurisdiction, other points raised by the parties need not be considered.
The judgment is affirmed. | [
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Per Curiam:
On April 3, 1978, John R. Peach, Jr., voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is By Order of the Court Considered and Accepted.
The Clerk of this Court is Ordered and Directed to mark the certificate Void and to Strike John R. Peach, Jr.’s name from the roll of attorneys. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a declaratory judgment action brought to construe the provisions of K.S.A. 1972 Supp. 60-1610(fc) (now K.S.A. 60-1610[c]). The issue is whether a spouse has a species of common or co-ownership in property held in the name of the other spouse before a judgment in a divorce action divides the property.
John J. Cady, plaintiff, and Lowanda B. Cady, defendant, were married in 1956. On February 28, 1973, they were divorced. The decree of divorce incorporated an executed property settlement agreement which determined alimony and a division of property. Included therein was a provision requiring plaintiff to assign to defendant 50,000 shares of corporate stock held in his name. This stock, as well as other stock retained by plaintiff under the property settlement agreement, was acquired during the marriage. After the divorce the Internal Revenue Service assessed a substantial income tax deficiency on the basis there had been a taxable transfer of appreciated property under 26 U.S.C. §§ 1001 and 1002.
Plaintiff filed this lawsuit against his former wife to determine the nature of the transfer under the laws of Kansas. Plaintiff joined the Director of Taxation of the Department of Revenue for the State of Kansas, fearing the state was also preparing to assess a tax deficiency.
The trial court dismissed the action on the basis that (1) it lacked jurisdiction of the subject matter of the action, (2) there was no real case in controversy, and (3) the action was a collateral attack on the original divorce decree. For the reasons set forth below we reverse.
The decision of the I.R.S. to assess taxes against property held by one spouse and transferred in a divorce proceeding to the other spouse evolves from United States v. Davis, 370 U.S. 65, 8 L.Ed.2d 335, 82 S.Ct. 1190 (1962), reh. denied 371 U.S. 854, 9 L.Ed.2d 92, 83 S.Ct. 14. There a Delaware taxpayer transferred shares of stock to his wife pursuant to a property settlement agreement executed prior to divorce. The I.R.S. assessed a capital gains tax against the taxpayer for one-half the appreciation on the stock. The taxpayer paid the assessment and sued to recover for the alleged overpayment in the court of claims. He recovered there but the United States Supreme Court reversed.
The decision of the Supreme Court revolved around the issue of whether the stock transaction was a taxable event. If the disposition of the stock was a sale or other transfer the tax was due; otherwise, it was not. The taxpayer asserted the disposition was comparable to a division of property between two co-owners and was not a transfer. The government, on the other hand, contended the transaction resembled a taxable transfer of prop erty given in exchange for an independent legal obligation (support and alimony). Although the Court recognized the binding effect of the Delaware law, it found there was no co-ownership by the wife in the husband’s property, and held the transfer had been made to satisfy an independent and taxable legal obligation.
Under federal tax statutes a taxable transfer presents a question controlled by federal law. State law may control only in event the federal tax law, by express language or necessary implication, makes operation of the tax law dependent upon state law. (Lyeth v. Hoey, 305 U.S. 188, 83 L.Ed. 119, 59 S.Ct. 155 [1938].) Where state law controls, federal courts must ascertain and apply state law. (Huddleston v. Dwyer, 322 U.S. 232, 88 L.Ed. 1246, 64 S.Ct. 1015 [1944].) The field of domestic relations belongs exclusively to the state. (McCarty v. Hollis, 120 F.2d 540 [10th Cir. 1941].) Actions of this nature have been considered and decided by the Supreme Courts of the states of Colorado and Oklahoma.
In Pulliam v. C.I.R, 329 F.2d 97 (10th Cir. 1964), the Tenth Circuit applied the Davis decision to Colorado law, holding that such a property transfer was taxable. The court reasoned that since under Colorado law a wife did not have a vested right in any part of her husband’s property during marriage, acquiring the property in a divorce was a taxable transfer. This decision was later nullified by the Colorado Supreme Court in Questions Re Imel v. U.S.A., 184 Colo. 1, 517 P.2d 1331 (1974). There the court disapproved the position of the federal appeals court and held:
. . [U]nder Colorado law, the transfer involved here was a recognition of a ‘species of common ownership’ of the marital estate by the wife resembling a division of property between co-owners. We answer in the negative whether the transfer more closely resembles a conveyance by the husband for the release of an independent obligation owed by him to the wife. . . .
“Except for those rights which vest upon the filing of the divorce action, we in no way change the Colorado law that a husband’s property is free from any vested interest of the wife and, with a possible exception or two, he can sell it or give it away. . . .” (p. 8.)
The question was resolved in Oklahoma in a series of four cases. The first was Collins v. C.I.R., 388 F.2d 353 (10th Cir. 1968) (Collins I). There the court followed Pulliam and held that the transfer was taxable under Oklahoma law. In Collins v. Oklahoma Tax Commission, 446 P.2d 290 (Okla. 1968) (Collins II), the Oklahoma Supreme Court disagreed with the holding in Collins I and held the transfer was a division of property between co-owners and not a taxable event. On the heels of Collins II, the United States Supreme Court decided Collins v. Commissioner of Internal Revenue, 393 U.S. 215, 21 L.Ed.2d 355, 89 S.Ct. 388 (1968) (Collins III). It remanded Collins I to the lower court for a redetermination of its prior holding in light of Collins II. On remand the court of appeals reversed itself and followed Collins II, stating:
“As indicated in the former opinion, we read United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962) to require that state law be consulted in determining the nature of the disposition of property undertaken in connection with a termination of marital relations. Just as the Court in Davis, we seek to determine whether, under state law, the present transfer more nearly resembles a nontaxable division of property between co-owners, or whether it is a taxable transfer in exchange for the release of an independent legal obligation. Having the benefit of an interpretation of state law on this very point, we must conclude that the stock transfer operated merely to finalize the extent of the wife’s vested interest in property she and her husband held under ‘a species of common ownership.’
“The Commissioner agrees that state law is significant, but argues that a determination of whether the wife’s rights in the transferred property reach the dignity of co-ownership does not depend upon the labels assigned to that interest for state tax purposes. It is contended that when the Court in Davis discussed such factors as right of control, descendable interest, and the like, federal criteria were established that must be met before the rights conferred by state law can be said to constitute co-ownership. The language of Davis will not support that interpretation. The Court merely discussed certain general characteristics of co-ownership in an attempt to determine whether the wife possessed the rights of a co-owner under state law. In so doing, the Court determined that ‘regardless of the tags, Delaware seems only to place a burden on the husband’s property rather than to make the wife a part owner thereof.’ 370 U.S. at 70, 82 S.Ct. at 1193. Collins v. Oklahoma Tax Commission proclaims that in Oklahoma the wife is made ‘a part owner thereof,’ consequently, there is no need to search state law for indications of other factors that might signify the nature of the wife’s property interest.
“In sum, we look to the law of the state, as the Supreme Court did in Davis and as this court did in Pulliam v. C.I.R., 329 F.2d 97 (1964), and conclude that the transfer of stock was a nontaxable division of property between co-owners.” (Collins v. C.I.R., 412 F.2d 211, 212 [10th Cir. 1969].)
Subsequently, the Oklahoma court modified Collins II, limiting the vesting of the rights in the wife to the filing of the divorce action. The court stated:
“Plaintiff argues she has a vested interest in property acquired during coverture and for that reason the gratuitous gifts were in and of itself a fraud on her marital rights. In support of her conclusion she cites two cases. Collins v. Oklahoma Tax Commission, Okl., 446 P.2d 290; Thompson v. Thompson, 70 Okl. 207, 173 P. 1037 (1918). We disagree. Both of these cases involve an interpretation of jointly acquired property under our divorce statutes. They do not purport to construe the vested interest of a wife in jointly acquired property beyond the statutory disposition of property in a divorce action. When a divorce action is pending her right to the jointly acquired property is vested. But the vesting takes place by reason of the divorce pendency under our statute and not by the marriage relationship which existed between the parties.” (Sanditen v. Sanditen, 496 P.2d 365, 367 [Okla. 1972].)
While the question is one of first impression in this state, Davis was applied to Kansas case law in Wiles v. C.I.R., 499 F.2d 255 (10th Cir. 1974). There the appeals court distinguished Oklahoma and Colorado law from Kansas law and held that under Kansas law such a transfer of property is to be treated as a taxable exchange. The court stated that under the pertinent statutes and decisions a wife has no vested co-ownership in property of the husband during marriage.
The division of property pursuant to a divorce proceeding is controlled by K.S.A. 1972 Supp. 60-1610(b). The statute states:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.”
Historically, division of property has been a concept separate and apart from alimony. In Garver v. Garver, 184 Kan. 145, 147, 334 P.2d 408 (1959), this court said:
“We are of the opinion that alimony and property division are completely separate and that a wife who prevails in a divorce action is entitled to both alimony and division of property. The right to alimony is separate and distinct from the right to division of the property jointly acquired by the parties during the marriage. The doctrine of alimony is based upon the common law obligation of the husband to support his wife, which obligation is not removed by her obtaining a divorce for his misconduct. Division of property, on the other hand, has for its basis the wife’s right to a just and equitable share of that property which has been accumulated by the parties as a result of their joint efforts during the years of the marriage to serve their mutual needs. In this sense, the marital relationship is somewhat analogous to a partnership, and when the relationship is dissolved the jointly acquired property must be divided, regardless of which party has been at fault. . . .”
K.S.A. 1972 Supp. 60-1610(fe) broadens the power of the court in entering orders for a division of property over that set forth in Garver. The court is no longer restricted to a division of property which is accumulated as a direct result of joint efforts of the spouses during the marriage. (Parish v. Parish, 220 Kan. 131, 551 P.2d 792 [1976].) In the present action we are concerned only with the taxable status of jointly acquired property.
Prior to the filing of a petition for divorce a spouse may dispose of his or her personal property without regard to the other spouse. (Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P.2d 347 [1975]; Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 [1972].) At that time a spouse possesses only an inchoate interest in real estate held by the other spouse. (McGill v. Kuhn, 186 Kan. 99, 348 P.2d 811 [1960].) The filing for divorce, however, has a substantial effect upon the property rights of the spouses. At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or jointly held. The court is obligated to divide the property in a just and equitable manner, regardless of the title or origin of the property. (McCain v. McCain, 219 Kan. 780, 549 P.2d 896 [1976]; McCrory v. McCrory, 216 Kan. 359, 533 P.2d 278 [1975]; Almquist v. Almquist, 214 Kan. 788, 522 P.2d 383 [1974].)
We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(h). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spouse to convey, sell or give away such property. Our decision is in accord with the cases decided by the Oklahoma and Colorado courts. We have examined the pertinent statutes in those jurisdictions and, contrary to the conclusion in Wiles v. C.I.R., supra, we find no differences which prevent this court from assigning precedential value to the Oklahoma and Colorado cases.
Defendant Lowanda R. Cady argues that we should consider the effect of recently enacted legislation in Kansas (L. 1978, ch. 134) in the determination of the issue in this case. This act appears to identify part of the property of a husband and wife as marital property. We have concluded the effect of this statute should not be considered in the present action. We do so for two reasons. First, the statute was not in effect at the time of the divorce. Second, we do not accept defendant’s argument that the enactment of this statute created a presumption the legislature was attempting to change pre-existing law. There can be no presumption when the legislature has not enacted laws related to the issue in this action and when the issue has not heretofore been determined by the appellate courts of this state.
The subject matter contained in plaintiff’s petition involved a determination of the nature of a division of property pursuant to K.S.A. 1972 Supp. 60-1610(fe). Since K.S.A. 60-1701 (declaratory judgments) specifically includes controversies involving the validity or interpretation of a statute, a district court is under a duty to proceed with the cause if the petition sets forth facts showing an actual controversy. (Wagner v. Mahaffey, 195 Kan. 586, 588, 408 P.2d 602 [1965]; Huber v. Schmidt, 188 Kan. 36, 39, 360 P.2d 854 [1961]; School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230 [1930].) Courts do not render advisory opinions on abstract questions of law unless there is an actual dispute between the parties. (Wagner v. Mahaffey, supra; Witschner v. City of Atchison, 154 Kan. 212, 117 P.2d 570 [1941]; City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111 [1941]; Kern v. Newton City Commissioners, 151 Kan. 565, 100 P.2d 709, 129 A.L.R. 1156 [1940]; Klein v. Bredehoft, 147 Kan. 71, 75 P.2d 232 [1938]; West v. City of Wichita, 118 Kan. 265, 234 Pac. 978 [1925].)
Here an actual controversy exists between plaintiff and his former wife as to the nature of the transfer of stock. In view of the requirement that the federal courts must follow the state law as stated in United States v. Davis, supra, each party will be affected by the outcome of this action. At oral argument the state indicated it intended to assess a tax deficiency against plaintiff similar to that assessed by the I.R.S. The case clearly involves an issue having serious implications for all parties concerned and is more than an abstract question of law.
We do not find plaintiff’s lawsuit to be a collateral attack upon the property settlement or the previous divorce decree. Plaintiff’s goal is to interpret, not attack. Such a purpose is within the scope of a declaratory judgment action. (See, Savage v. Savage, 192 Kan. 230, 387 P.2d 190 [1963]; Bodle v. Balch, 185 Kan. 711, 347 P.2d 378 [1959]; 49 C.J.S., Judgments, § 408, p. 805.)
The trial court erred in dismissing this action and because the issue involves a question of law which the parties have fully briefed and argued we find the case should be decided on its merits. We therefore remand the case to the trial court with directions to enter judgment in favor of the plaintiff in accord with this opinion. | [
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The opinion of the court was delivered by
Miller, J.:
Raymond Edward McGee brings this direct appeal from the district court of Wyandotte County, following his conviction of aggravated kidnapping, K.S.A. 21-3421, and attempted kidnapping, K.S.A. 21-3301 and 21-3420. McGee was sentenced to life imprisonment for the aggravated kidnapping, and to a concurrent term of not less than one nor more than five years for the attempted kidnapping.
Defendant claims that the trial court erred in denying his motion to sever, in admitting other crimes or civil wrongs evidence under K.S.A. 60-455, in admitting into evidence testimony of a statement volunteered by the defendant while in custody, which statement had not been disclosed to defense counsel during discovery, in refusing to declare a mistrial because of the alleged misconduct of a juror, and in denying his motion for a new trial, based upon his claim that the verdict was not supported by the evidence.
Janet, a tiny girl in her early twenties, testified that on Saturday, September 4, 1976, late at night, she was walking near the Kansas Avenue bridge in Kansas City, Kansas. The defendant stopped his car and asked Janet if she wanted a ride; she declined. The defendant then got out of his car, ran after Janet, caught her, threatened her life if she screamed, pulled her into the car, and drove to the Santa Fe railroad yards, where he parked the car and held Janet captive in the car for about one and one-half hours. She testified that the defendant raped her three times and committed oral sodomy upon her once. Railroad detectives approached the car, questioned Janet and the defendant, and told them to leave the Santa Fe property. Janet explained that she did not sound an alarm in the presence of the officers because of threats by the defendant, and her fear of him. The defendant then drove to 42nd and Metropolitan, where he pushed Janet from the car. She ran to a nearby 7-Eleven store, called the police, and reported the rape. Janet gave a description of the car, a gold car with a black hardtop, together with the license number, and she identified the defendant positively. He was also identified by the Santa Fe officers.
The charge of attempted kidnapping arose out of an incident that occurred in the Indian Springs shopping center in Kansas City, Kansas. Brenda and a co-worker, Jane, were on their way to work at Macy’s, about 8:30 o’clock on the morning of September 15, 1976. As they walked across the parking lot, a car pulled up close beside Brenda. It came so close that it brushed her dress. Thinking it was someone she knew, she bent down to say, “Hi.” Brenda did not recognize the man in the car. Suddenly, he grabbed her by the arm and pulled her into the car window. As he was attempting to pull her into the car, Jane took Brenda’s other arm and tried to pull her out of the car. The man grabbed Brenda’s dress and pulled it over her head; she was half in, half out of the car. Both girls screamed. Finally, Jane was successful in pulling Brenda out; both girls fell to the ground, and the car sped away. Both women gave accurate descriptions of the defendant and the car he was driving, a gold car with black top. A few days later, Jane spotted the car in the parking lot at the shopping center. She recognized defendant as the driver. She reported this immediately to the security office, and the defendant was apprehended. Both women positively identified the defendant.
McGee testified in his own defense. He admitted that he picked Janet up on the night of September 4, but he denied using any force and said she voluntarily entered his car. He denied that he had sexual relations of any sort with Janet. As to the charge that he attempted to kidnap Brenda, he denied being present and offered alibi evidence.
McGee was charged with four separate offenses. He was found guilty of the charge contained in count one, the aggravated kidnapping of Janet, and he was found guilty of the charge contained in count four, the attempted kidnapping of Brenda. He was found not guilty of the aggravated sodomy of Janet, charged in count two, and the jury was unable to reach a verdict on the charge that he raped Janet, contained in count three. A mistrial was declared as to count three.
The defendant first contends that the trial court erred when it denied his motion to sever count four from counts one, two, and three for the purpose of trial. Defendant contends that the joinder of count four with the other three counts for trial prejudiced him and denied him his right to a fair and impartial trial.
We discussed the statute governing joinder, K.S.A. 22-3202(1), and the test to determine proper joinder, together with the various applicable rules, in the recent case of State v. Howell, 223 Kan. 282, 284-286, 573 P.2d 1003 (1977). We need not repeat what we so recently said. However, we have carefully examined the record in this case, and tested it by the rules, and principles enunciated in Howell. The facts surrounding the abduction of Janet, and the facts surrounding the attempted abduction of Brenda, are strikingly similar. Even if separate trials had been granted, it is probable that evidence of one could have been introduced in the trial of the other, pursuant to K.S.A. 60-455. In such case, nothing would be gained by separate trials. The offenses were handled separately and distinctly by counsel in their argument, by the court in its instructions, and in the presentation of evidence. We conclude that the charges were properly joined, and we find no abuse of discretion in not severing count four.
For his second claim of error, the defendant contends that the trial court erred in permitting the state to present to the jury the testimony of Susan. The court first heard her testimony in camera, overruled defense objections, and then permitted her to testify in open court. Susan testified that on August 30, 1976, she drove to the Indian Springs shopping center, and as she was parking her car she noticed another car driving back and forth. She got out of her car, put her baby in a stroller, and started down the aisle between the cars. The car she had previously noticed pulled along side of her and as she turned around to see who it was, the driver reached out and grabbed her by the waistband of her jeans and pulled and jerked her toward his car. He pulled so hard that her pants came undone and unzipped. She lost her grip on the stroller, screamed, turned, and struck the man as hard as she could. He let loose and she fell to the ground. As she fell, the car sped away. Susan immediately reported the incident, and she described the car as a gold Cutlass with black top and black interior. She positively identified the defendant as her assailant.
The trial court admitted the testimony of Susan to show identity, intent, and motive. The defendant does not challenge the sufficiency of the court’s cautionary instructions. He contends that identity, intent, and motive were not in issue, and therefore the evidence was inadmissible. Further, he contends that such evidence must be admissible as to all offenses for which a defendant is standing trial. We disagree.
Identity was an issue insofar as count four was concerned. Brenda and her co-worker, Jane, both positively identified McGee. He denied that he was present in the shopping center area at the time the offense was committed, and presented alibi evidence. The facts of the occurrences involving Brenda and Susan were similar; both occurred at the Indian Springs shopping center within a short time span; the same car was involved; and defendant was positively identified by three witnesses. We hold that the testimony was relevant to prove a fact in issue, identity. State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 (1974); State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977); State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978).
Were intent and motive in issue as to the charge of aggravated kidnapping? We hold that they were. Though defendant admitted that Janet rode in his car on the night of September 4, he denied the use of force and testified that she voluntarily entered and remained in the car. Also, he denied that any sexual activity, forced or otherwise, occurred. His intent and motive were squarely in issue.
“Where an act in itself may be susceptible to two interpretations, one innocent and the other criminal, then the specific intent with which the act is done becomes the critical element in determining its character.” State v. Faulkner, 220 Kan. 153, Syl. 5, 551 P.2d 1247 (1976); and see State v. Brooks, 222 Kan. 432, 434, 565 P.2d 241 (1977).
An element of aggravated kidnapping is the specific intent with which the taking or confinement of the victim is done. K.S.A. 21-3420.
There is no requirement that evidence of other offenses or civil wrongs be admissible as to every offense for which a defendant is being tried. We conclude that the trial court did not err in admitting Susan’s testimony.
For his third point, McGee contends that the trial court erred in allowing into evidence, over objection, a purported statement made by the defendant while in custody, for the reason that the prosecution previously advised the defense that it had no statement of the defendant, and the statement was a surprise, and was not disclosed in conformity with the court’s discovery order.
It developed during argument on defendant’s motion to exclude the evidence that the prosecution’s entire file had been turned over to defense counsel, and he had been given full opportunity to examine it. A report of the statement was included therein. Both defense counsel and the prosecutor failed to observe the statement, which was included in the report of Detective Maskill. Defense counsel conceded that the entire prosecution file had been open to him, and that he had in fact seen Maskill’s report. The statement was a short, two-sentence volunteered expression by the defendant. It was not discovered by counsel until Detective Maskill pointed it out to the prosecutor, on the day he was to testify.
K.S.A. 22-3212(7), providing discovery in criminal cases, also grants discretion to the trial courts. The statute reads in part as follows:
. . If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
In this case the statement was unknown to the prosecutor, and the failure to disclose it prior to trial was inadvertent. The report, containing the statement, was made available to defense counsel, who overlooked it when he examined the file. Both counsel had access to the information and overlooked it. Under the circumstances we cannot say that the trial court abused its discretion in permitting the statement to be introduced in evidence. See State v. Morin, 217 Kan. 646, 651-652, 538 P.2d 684 (1975).
Defendant next contends that the trial court erred in refusing to declare a mistrial after it was brought to the court’s attention that one of the jurors had consumed alcoholic beverages during the course of the trial. This matter was brought to the court’s attention shortly after the jury returned its verdict. The court then questioned the juror, who stated that he had had one highball before he came to trial that morning, and that he had consumed two beers the evening before. The trial judge stated that he himself did not notice any indication whatsoever of intoxication, and that he did not find any misconduct on the part of juror Black. The court concluded by saying, “I observed the jurors throughout this trial and throughout the day and I felt at no time that any of the jurors had misconducted themselves in any way.”
The granting of a mistfial for juror misconduct is a matter of discretion for the trial court. It is not a basis for a new trial, “unless it is shown to have substantially prejudiced the rights of the defendant.” State v. Arney, 218 Kan. 369, 371-372, 544 P.2d 334 (1975). In the case at hand, the trial court acted promptly, examined the juror, and determined the issue. We cannot see that the defendant was prejudiced, or that the trial court abused its discretion.
Finally, the defendant contends that there was insufficient evidence to support the verdict. On appellate review, the question is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. State v. Ames, 222 Kan. 88, 95, 563 P.2d 1034 (1977).
Viewing the evidence in the light most favorable to the prevailing party, as we must on appeal, we conclude that the evidence was sufficient.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from the trial court’s finding that petitioner Joe Pennington, a news reporter, was in direct criminal contempt for refusing to disclose the identity of a confidential news source. Petitioner filed a direct appeal and a petition for writ of habeas corpus in the court of appeals. The writ was denied. (In re Pennington, 1 Kan. App. 2d 682, 573 P.2d 1099 [1977].) Petition for review was granted by this court and upon motion the petition and direct appeal were consolidated for decision.
The issue on review is whether a news reporter has a First and Fourteenth Amendment privilege to protect the identity of a confidential news source.
This controversy arises from a murder case. On May 3, 1977, Thad Sandstrom, a nationally recognized broadcast executive, was found shot to death in his Topeka home. Shortly thereafter, his wife, Milda, was charged with first degree murder. The case came to jury trial on November 14, 1977. At the beginning of trial her defense counsel filed a motion with the trial court to compel petitioner to reveal the identity of a confidential news source. On November 16, petitioner appeared in response to a subpoena. A motion to quash the subpoena was denied.
Under questioning, petitioner revealed that he came to Topeka from Wichita after the Sandstrom murder to investigate a possible story. While in Topeka he came in contact with his confidential news source, the informant, who told petitioner he had been at a party shortly before Sandstrom’s death where a state’s witness in the Sandstrom murder trial had threatened to kill Sandstrom. The informant, although present at the party, had not actually heard the threat but had been told of it by someone who had heard the threat. Although petitioner testified as to the approximate date, time, and place of the gathering, he refused to divulge the identity of his informant. Petitioner was found in direct criminal contempt of court and sentenced to sixty days in jail.
The trial court ruled that in a criminal case the petitioner did not have a privilege to refuse to disclose the identity of an informant and, even if he had a limited privilege, the need for the information outweighed petitioner’s privilege of confidentiality.
We believe a newsperson has a limited privilege of confidentiality of information and identity of news sources, although such does not exist by statute or common law. The United States Supreme Court recognized the privilege in Branzburg v. Hayes, 408 U.S. 665, 33 L.Ed.2d 626, 92 S.Ct. 2646 (1972). That decision was a review of a trilogy of cases. In Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1970), a reporter wrote a story describing his observation of two persons making hashish. As a condition to observing the process the two demanded confidentiality. A grand jury investigating drug traffic subpoenaed the reporter and demanded the names of the two persons. The case of In re Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971), involved a news reporter who had witnessed civil disturbances while investigating a news story inside a Black Panthers headquarters. When summoned to appear before the grand jury he refused to divulge what he had seen while inside the headquarters, including the identity of the persons he had observed. The last case, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), arose from a grand jury investigation of numerous crimes, including threats against the President of the United States, mail fraud, and interstate travel to incite a riot. Again, the news reporter had been assigned to cover Black Panther activities and had witnessed the alleged violations.
The majority opinion in Branzburg was written by Mr. Justice White, who was joined by three other justices. In its holding the court recognized the importance of the free flow of information to insure the viability of the freedom of the press, but recognized that a grand jury may require a news reporter to give testimony on all relevant matters which the grand jury is investigating, just as any other citizen is required to do. In a concurring opinion, Mr. Justice Powell sought to explain the holding of the majority, stating:
. . The asserted claim to privilege should be judged on its facts by the .striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” (p. 710.)
Courts applying Branzburg to criminal cases have generally concluded that the proper test for determining the existence of a reporter’s privilege in a particular criminal case depends upon a balancing of the need of a defendant for a fair trial against the reporter’s need for confidentiality. (United States v. Pretzinger, 542 F.2d 517, 520 [9th Cir. 1976]; United States v. Liddy, 478 F.2d 586, 587 [D.C. Cir. 1972]; United States v. Orsini, 424 F. Supp. 229, 232 [E.D.N.Y. 1976], aff’d 559 F.2d 1206 [2d Cir. 1977], cert. denied 434 U.S. 997, 54 L.Ed.2d 491, 98 S.Ct. 636; United States v. Liddy, 354 F. Supp. 208, 215 [D.C. Cir. 1972]; Rosato v. Superior Court of Fresno County, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 [1975], cert. denied 427 U.S. 912, 49 L.Ed.2d 1204, 96 S.Ct. 3200 [1976]; Farr v. Superior Court, County of Los Angeles, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 [1971], cert. denied 409 U.S. 1011, 34 L.Ed.2d 305, 93 S.Ct. 430 [1972]; Morgan v. State, 337 So.2d 951, 954 [Fla. 1976]; Morgan v. State, 325 So.2d 40, 43 [Fla. App. 1975]; People v. Marahan, 81 Mise. 2d 637, 368 N.Y.S.2d 685 [1975].) Whether a defendant’s need for the confidential information or the identity of its source outweighs the reporter’s privilege depends on the facts of each case. As a general rule, disclosure has been required only in those criminal cases where it is shown the information in possession of the news reporter is material to prove an element of the offense, to prove a defense asserted by the defendant, to reduce the classification or gradation of the offense charged, or to mitigate or lessen the sentence imposed. When the information sought has a bearing in one of these areas, the newsperson’s privilege must yield to the defendant’s rights to due process and a fair trial. (See, State v. St. Peter, 132 Vt. 266, 315 A.2d 254 [1974]; Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 [1974], cert. denied 419 U.S. 966, 42 L.Ed.2d 182, 95 S.Ct. 229.)
While courts recognize that a news reporter’s privilege is more tenuous in a criminal proceeding than in a civil case, that fact in and of itself does not automatically require disclosure in a criminal case. If that were true, no privilege would exist for a news reporter summoned in a criminal case. Nor does the privilege evaporate because the defendant is charged with murder. The proper test enunciated by the Branzburg majority is whether the information sought is relevant to the issues before the tribunal. Mr. Justice Powell’s concurring opinion and the vast majority of criminal cases since Branzburg dealing with this issue recognize this feature as a primary requirement, but further suggest a test of balancing the need of the defendant for the information or the identity of the news source against the privilege of the news reporter. The trial court in this case stated that if the balancing test were applied, the need for the information outweighed the news reporter’s privilege of confidentiality.
In reviewing the action of the trial court, we are cognizant the procedure used was in camera and in the nature of discovery by the defendant. The scope of discovery is to be liberally construed so as to provide the parties with information essential to litigation to insure defendant a fair trial; therefore, the scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Relevant evidence in discovery may include information which is not admissible at trial, but which appears to be reasonably calculated to lead to the discovery of admissible evidence. If the information sought meets that test then the fact the information sought is inadmissible at the trial is immaterial.
We should not disturb the ruling of the trial court unless the record clearly shows the information sought is not relevant to the defense or could not lead the defendant to information relevant to her defense. We cannot say whether knowledge of the identity of the informant would lead to information relevant to her defense. The trial court apparently felt this was a possibility and ruled against petitioner. To find the trial court abused its discretion, an appellate court must determine that no reasonable person could take the view adopted by the trial court. (Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973].) This we cannot do; therefore, we uphold the trial court in ordering petitioner to reveal the identity of the informant.
Petitioner also challenges the validity of the contempt citation. He argues the citation is invalid because the acts constituting the contempt did not take place in “open court”; thus, they do not amount to direct acts of contempt. We disagree. Although the proceedings were in camera and closed to the public, the acts of petitioner were reported to the public almost instantly and were as demoralizing to the authority of the court as if they had taken place in an open courtroom. Furthermore, there is no evidence in the record to indicate that the November 22, 1977, proceedings, wherein petitioner was again asked to reveal the identity of the informant, were not in “open court”, although conducted in chambers. (Morris v. State, 2 Kan. App. 2d 34, 573 P.2d 1130 [1978].)
Finally, petitioner argues he should not be found in contempt because he relied in “good faith” on assertion of a constitutional privilege. We do not agree. The determination of the existence of a privilege is a question for the trial court to determine, not the petitioner. The court found no privilege under the facts of this case and ordered petitioner to answer the questions, knowing that failure to do so would lead to a contempt citation. Petitioner’s decision not to answer was voluntary and he knew the consequences of his refusal.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from a judgment for damage to plaintiff’s automobile resulting from a two car collision. The primary issues raised on appeal require a construction of the provisions of K.S.A. 60-258a, commonly referred to as the Kansas comparative negligence statute.
The plaintiff-appellant, Britt Brown, owned a Jaguar roadster. His son, Britt M. Brown, was the permissive driver of appellant’s Jaguar at the time of the collision. For clarity we will refer to Britt Brown as the father and to Britt M. Brown as the son. The defendant-appellee, Patricia L. Keill, was the driver of the other car involved in the collision. The collision occurred at a street intersection in Wichita. The reasonable cost of repair to the Jaguar amounted to $5,423.00. The circumstances surrounding the collision need not be detailed. Apparently the defendant-appellee settled her claim against the driver of the Jaguar out of court. The owner of the Jaguar then sued to recover his property loss. Defendant-appellee did not seek to have the son joined as an additional formal party to the action. She did not file a counterclaim or cross-claim.
In answer to the father’s claim the defendant admitted driving one of the cars involved in the collision but alleged that 90% of the causal negligence was attributable to the driver of the Jaguar and only 10% of the causal negligence was attributable to her. Defendant further alleged that since the causal negligence of the driver of the Jaguar exceeded 50% and defendant’s causal negligence was less than the driver of the Jaguar that plaintiff should not be permitted to recover under the comparative negligence laws of this state.
At the close of a bench trial the court found: (1) The plaintiff-father, as bailor of the Jaguar, was guilty of no negligence; (2) the driver of the Jaguar was responsible for 90% of the causal negligence; (3) the defendant, Keill, was responsible for 10% of the causal negligence; (4) plaintiff sustained total damages in the amount of $5,423.00; and (5) pursuant to the comparative negli gence statute of Kansas plaintiff was entitled to recover $542.30 or 10% of his total damage from the defendant, Keill. Judgment was entered for that amount and this appeal followed.
At the outset it should be noted that in the absence of evidence of a joint venture, agency or circumstances giving rise to vicarious liability, the negligence of a bailee of a vehicle is not imputable to the bailor in an action by the bailor against a third party for damage to the bailed vehicle. See Hartley v. Fisher, 1 Kan. App. 2d 362, 566 P.2d 18 (1977), and authorities cited therein. The parties concede this is the law. The plaintiff in this case accordingly was guilty of no contributory negligence.
Although stated by the appellant in a somewhat different fashion the two ultimate questions to be decided on appeal are: (1) Has the rule of joint and several liability of joint tort-feasors been retained in actions now governed by the Kansas comparative negligence statute, K.S.A. 60-258a; and (2) is the causal negligence or fault of all parties to a collision or occurrence giving rise to plaintiff’s claim in a comparative negligence action to be considered even though one of said parties is not served with process or joined as a formal party to the action?
We will consider first the question as to joint and several liability.
K.S.A. 60-258a has two purposes expressed in the title of the act as passed by the legislature. The first purpose is the abolition of contributory negligence as a bar to recovery. The second purpose is to provide for the awarding of damages on the basis of comparative negligence. (Laws of Kansas, 1974, Ch. 239, infra.)
Before considering the statute it might be well to review some of our rules relating to the liability of joint tort-feasors under our prior case law. In Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966), it is stated that Kansas adheres to the common law rule that there is no right of contribution between joint tort-feasors. Where no right of contribution exists as between joint tort-feasors, a defendant has no right under the provisions of K.S.A. 60-214(a) to bring in to plaintiff’s cause of action a joint tort-feasor who was not originally made a party to the action by the plaintiff.
However, K.S.A. 60-2413(b) provides:
“A right of contribution or indemnity among judgment debtors, arising out of the payment of the judgment by one or more of them, may be enforced by execution against the property of the judgment debtor from whom contribution or indemnity is sought.” (Emphasis supplied.)
In McKinney, Administrator v. Miller, 204 Kan. 436, 464 P.2d 276 (1970), it was held, when a joint judgment is entered in an action founded upon tort, contribution between the joint judgment debtors is authorized by K.S.A. 60-2413(b). In McKinney, Administrator v. Miller, supra, this court cited the case of Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238 (1903), with approval. In Fort Scott an action was brought by one joint judgment debtor against the other joint judgment debtor. The judgment had been entered in a prior tort action brought against the two joint tort-feasors. The plaintiff in the Fort Scott action had previously paid the entire joint judgment entered against the tort-feasors. A judgment for one-half the amount paid was recovered from the other joint judgment debtor.
Therefore, under the Kansas law as it existed prior to statutory comparative negligence a plaintiff could choose his tort-feasor and a defendant had no right to bring in another joint tort-feasor to plaintiff’s action. However, if plaintiff sued and recovered a judgment against two tort-feasors plaintiff could proceed to collect the judgment from either judgment debtor. When one judgment debtor had satisfied , the entire judgment he could then recover one-half of the amount paid from the other judgment debtor. The effect of these prior holdings was to make each defendant jointly and severally liable for all of plaintiff’s damage regardless of whether others contributed to cause such injuries. The right of contribution between judgment debtors in such case was on a fifty-fifty basis. Plaintiff controlled his own lawsuit and could collect a judgment from any judgment debtor he chose. The inability of any judgment debtor to pay his half of the judgment would concern only the judgment debtor who satisfied the judgment and then sought contribution.
Although the rule is so well known it hardly needs repeating, it might be well to note that under our prior law the contributory negligence of a plaintiff with few exceptions was a complete bar to plaintiff’s recovery when pleaded and proved by the defendant. (Stephens v. McGuire, 184 Kan. 46, 334 P.2d 363 [1959].)
In 1974 the Kansas legislature passed House Bill No. 1784, Laws of Kansas 1974, Ch. 239, pp. 828-829 (now K.S.A. 60-258a), which reads as follows:
“An Act concerning tort liability; abolishing contributory negligence as a bar to recovery; and providing for the awarding of damages on the basis of comparative negligence.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. (a) The contributory negligence of any party in a civil action shall not bar such party or his 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.
“(b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants, and the entry of judgment shall be made by the court. No general verdict shall be returned by the jury.
“(c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or- property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.
“(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.
“Sec. 2. The provisions of this act shall not apply to any cause of action which has accrued prior to the effective date of this act.”
This statute is more detailed than most comparative negligence statutes in other states and after reviewing the court decisions in other states we find they are of limited assistance. Although some subsections of the Kansas statute have direct counterparts in other states, no other state has the exact combination of provisions as does Kansas. So far as our research has disclosed no state has the provision for joining additional parties on motion of any party against whom a claim is asserted for negligence. See subsection (c).
Both parties assert there are ambiguities in the comparative negligence statute, K.S.A. 60-258a, as passed by the Kansas legislature. We agree. Therefore, it becomes necessary to consider and apply rules of statutory construction. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. (Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, Syl. ¶ 3, 552 P.2d 1363 [1976].) In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested. (State, ex rel., v. City of Overland Park, 215 Kan. 700, Syl. 110, 527 P.2d 1340 [1974].) In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature. {Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975].)
Before attempting to resolve some of the ambiguities in the statute we wish to acknowledge the assistance afforded not only by the briefs of appellant and appellee but also by the briefs filed on behalf of the Kansas Trial Lawyers Association and the Kansas Association of Defense Counsel, as friends of this court.
The appellant contends that the trial court erroneously ignored the principle of joint and several liability in entering judgment for only 10% of the total damages. He suggests that since K.S.A. 60-258a does not mention joint and several liability this court should construe the statute to retain joint and several liability, and adopt a rule of comparative contribution that would permit the joint judgment debtors to apportion damages on the basis of their relative fault. Under such a construction of the statute if plaintiff suffered damages in the amount of $5,423.00, as in this case, he could sue and recover said sum from either defendant regardless of such defendant’s percentage of fault. In such case if the defendant against whom recovery was had was 10% at fault and the other defendant was 90% at fault, the plaintiff could collect the $5,423.00 from the defendant 10% at fault and such defendant would then have a right of contribution against the other joint tort-feasor for 90/100 x $5,423.00 or $4,880.70, based on proportion of fault.
The substance of defendant-appellee’s argument in support of the present judgment is that the legislature by adopting subsection (a) as well as subsection (d) of the statute meant to equate both the amount to be recovered by plaintiff and the liability of a defendant with the individual’s degree of fault in all cases where the plaintiff’s negligence was less than the fault of all other parties to the collision or occurrence. If this were the intention of the legislature it would of necessity require this court to hold our prior rules as to joint and several liability had been abolished by the legislature in comparative negligence cases.
However, if such were the intent of the legislature the wording of the statute referring to all parties against whom, claim for recovery is made or allowed can not be interpreted to mean parties to the action in the sense that jurisdiction of the court must attach by reason of service of process. Such references in the statute would have to be construed to mean those parties whose fault contributed to the collision or occurrence and against whom claim for recovery might have been possible in the absence of such limitations as covenants not to sue, immunity or inability to obtain service of process.
In the Report on Kansas Legislative Interim Studies submitted to the 1974 Kansas Legislature, Proposal No. 84 — Civil Procedure, it appears that the committee which considered K.S.A. 60-258a did not intend to authorize contribution between joint tort-feasors. The report in part states:
“However, the Committee is of the opinion that no recovery should be allowed when the parties are equally at fault. Such could happen under the 50% rule as written in SB 146. Thus, the Committee has prepared an amendment to SB 146 to provide that the plaintiff may recover only if his negligence is less than that of the defendant’s (49% rule). In addition, the Committee has prepared an amendment to strike from the title of the bill the following language: . . and authorizing contribution among joint tort-feasors.’ As the bill is written, the title is incorrect inasmuch as the bill does not provide for the right of contribution. . . (Emphasis supplied.)
The interpretive problem facing this court is not one of determining sound public policy as suggested by appellant. The problem is rather the construction of the statute to carry into effect the legislative intention, whatever that might be.
When the act was initially passed by the legislature those who examined the act and prepared articles for publication generally agreed that the effect and purpose of K.S.A. 60-258a (d) was to abandon the prior concept of joint and several liability in negligence cases where the fault of two or more parties contributed to plaintiff’s injuries or damage.
James F. Davis concluded:
. . It appears from the language of these two provisions [referring to subsection (c) and subsection (d)] that the legislature has abrogated the traditional tort concept of joint and several liability. . . .” (Davis, Comparative Negligence — A Look at the New Kansas Statute, 23 Kan. Law Rev. 113, 123 [1974].)
Henry Woods concluded:
“. . . The Kansas statute does not adopt a rule of contribution. It resolves the problem by limiting the percentage of the total damages recoverable from one joint tortfeasor to the percentage of casual negligence attributable to him. This apparently abolishes joint and several liability in comparative negligence cases.” (Woods, The New Kansas Comparative Negligence Act — An Idea Whose Time Has Come, 14 Washburn Law Journal 1, 13 [1975].)
Victor E. Schwartz concluded:
“. . . Put more succinctly, that clause [referring to subsection (d)] would appear to abolish the concept of joint and several liability which was established in the law of Kansas prior to the enactment of the comparative negligence law.” (Schwartz, Comparative Negligence in Kansas — Legal Issues and Probable Answers, 13 Washburn Law Journal 397, 416 [1974].)
Professor William A. Kelly apparently concluded that the act abolishes joint and several liability. (Kelly, Comparative Negligence — Kansas, 43 J.B.A.K. 151, 188-189 [1974].)
James M. Concannon, Associate Professor of Law, Washburn University, author of the comments in Vernon’s Kansas Statutes Annotated, K.S.A. 60-258a, comes to a similar conclusion. (3 Vernon’s Kan. Stat. Ann. [Concannon], Code of Civil Procedure, 1977 Pocket Parts, p. 87.)
Two judges of the United States District Court for Kansas have previously had occasion to examine the provisions of K.S.A. 60~258a. See Beach v. M & N Modern Hydraulic Press Co., 428 F. Supp. 956 (1977); Greenwood v. McDonough Power Equipment, Inc., 437 F. Supp. 707 (1977); and Nagunst v. Western Union Telegraph Co., 76 F.R.D. 631 (1977). Several different interpretations of the act resulted in those decisions but both judges indicate that the comparative negligence statute changed the Kansas concept of joint and several liability.
The Kansas District Judges Association Committee on Pattern Jury Instructions in its comments which appear after PIK 2d, Civil, 20.01, p. 121, concludes that section (d) abolishes joint and several liability of multiple defendants in comparative negligence cases. The committee points out that such a construction is consistent with the last phrase of the title of the statute which describes the act as providing for the awarding of damages on the basis of comparative negligence.
None of the above mentioned opinions, cases or comments are binding upon this court; however, they do reinforce the decision which this court has reached after construing the various sections of the statute in the light of what we perceive to be the legislative intent.
The perceived purpose in adopting K.S.A. 60-258a is fairly clear. The legislature intended to equate recovery and duty to pay to degree of fault. Of necessity, this involved a change of both the doctrine of contributory negligence and of joint and several liability. There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the codefendant to pay more than his fair share of the loss. The same is true if one of the defendants is wealthy and the other is not. Previously, when the plaintiff had to be totally without negligence to recover and the defendants had to be merely negligent to incur an obligation to pay, an argument could be made which justified putting the burden of seeking contribution on the defendants. Such an argument is no longer compelling because of the purpose and intent behind the adoption of the comparative negligence statute.
It appears more reasonable for the legislature to have intended to relate duty to pay to the degree of fault. Any other interpretation of K.S.A. 60-258a (d) destroys the fundamental conceptual basis for the abandonment of the contributory negligence rule and makes meaningless the enactment of subsection (d). If it were not the intention of the legislature to abolish joint and several liability by adopting subsection (d) that subsection would have little or no purpose, because the first two sections of the statute standing alone could have accomplished the legislative purpose urged by the appellant.
Numerous examples of unfairness have been cited by both parties in this case to support their respective positions. The law governing tort liability will never be a panacea. There have been occasions in the past when the bar of contributory negligence and the concept of joint and several liability resulted in inequities. There will continue to be occasions under the present comparative negligence statute where unfairness will result. Having considered the arguments in light of the statute, we hold under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-feasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.
We turn now to the second question raised in this appeal. Is the causal negligence or fault of all parties to a collision or occurrence giving rise to plaintiff’s claim in a comparative negligence action to be considered even though one or more of said parties is not served with process or joined as a formal party to the action?
The appellant points out that, while subsection (c) of the statute permits “any party against whom a claim is asserted” to bring in another person on motion, there is nothing in the statute which specifically requires the plaintiff to bring his action or file a claim against any particular person or group of persons. Appellant further notes that under subsection (d) the causal negligence or fault of all parties “against whom such recovery is allowed” is to be proportioned. Nowhere in the act does it state that persons who are not parties to the action are to have any impact on the ultimate judgment to be entered. Therefore, appellant asserts it is incumbent upon a defendant to join such additional parties as he may deem necessary or advisable to determine their fault.
Appellee, on the other hand, points to subsection (d) of the statute and says the comparative negligence of all parties whose fault contributed to the collision or occurrence must be deter mined if “each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.” In addition appellee contends that subsection (c) of the statute must be construed as permissive for it is impossible and fruitless in many cases for a defendant to attempt to join and bring into the action those who have settled out under a covenant not to sue and whose liability for damages no longer exists. Other instances are cited where no recovery by plaintiff may be obtained against a party who is or may be at fault, such as cases of interspousal immunity and where there is an absence of information as to the name or whereabouts of a party to the occurrence.
In examining K.S.A. 60-258a we note that subsection (a) is concerned with changing our prior rule which denied recovery to a claimant whose negligence contributed to cause the collision or occurrence. It provides that a party’s negligence shall not be a bar if such negligence was less than the causal negligence of the party or parties against whom claim for recovery is made. It further provides the award of damages to such party shall be diminished in proportion to the amount of negligence attributed to such party. This section, as well as other sections of the statute, speaks in terms of parties in or to the action rather than plaintiffs and defendants. We note, however, this wording in the statute can be construed as a means of accommodating cases in which both claims and counterclaims are filed as a result of one collision or occurrence, rather than to imply it relates to parties to the occurrence. The position taken by plaintiff in this action has support because of the use of the phrases “party or parties against whom claim for recovery is made” in subsection (a), and “all parties against whom such recovery is allowed” in subsection (d).
Before answering the ultimate question being considered, several preliminary questions bearing on multiple party cases should be examined. In the present case the court found the owner of the Jaguar guilty of no negligence. Is comparative negligence “an issue” under subsection (d) if plaintiff’s fault is submitted to the trier of fact and it is found that plaintiff was not at fault? In such case the damages suffered by plaintiff would not be diminished under subsection (a). However, subsection (d) requires only that the comparative negligence “of the parties” be an issue, not that the comparative negligence “of the claimant” be an issue. As previously concluded proportionate liability based on fault is an independent aim of the statute. Since that is a purpose of the statute, the plaintiff’s award is diminished in proportion to his fault, and the individual liability of others for damages should be based on their proportionate fault. We conclude that comparative negligence may be “an issue” under subsection (d) if plaintiff’s fault is submitted for decision even though plaintiff is found not to be at fault.
The answer to another preliminary question appears necessary in considering our ultimate question. May the plaintiff avoid proportionate liability by suing and making a claim against only one of several tort-feasors? Presumably subsection (c) permits a defendant to file a motion and join other tort-feasors. However, plaintiff may have settled with that tort-feasor and no liability exists when the action is filed. The statute is silent as to what position the added party occupies once that party is joined. It is doubtful if the plaintiff in such a case can be forced to make a claim against the added party. The legislative intent in including subsection (c) would appear to have been to change the rule applied in Alseike v. Miller, supra, and to permit a defendant in a comparative negligence case to bring in other joint tort-feasors so their percentage of fault can be determined and their liability, if any, adjudged.
The next preliminary question that presents itself is — will proportionate liability be defeated when a party joined under subsection (c) has a valid defense such as interspousal immunity, covenant not to sue and so forth? The added party in such case would not be a party “against whom such recovery is allowed” and if subsection (d) is taken literally such a party’s percentage of fault should not be considered in determining the judgment to be rendered. It appears after considering the intent and purposes of the entire statute that such a party’s fault should be considered in each case to determine the other defendant’s percentage of fault and liability, if any. The proportionate liability of the other parties to the action under K.S.A. 60-258a (d) should not be increased merely because a party joined under subsection (c) has a valid defense to plaintiff’s claim, other than lack of negligence.
Now we return to the ultimate question — should the percentage of fault of one who is not or cannot be formally joined as a party under subsection (c) be considered under subsection (d) to arrive at the proportionate liability of the defendant or defendants?
After having answered the preliminary questions and having applied the rules of statutory construction previously set forth in this opinion we conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.
One final question must be answered in this case. Was the answer filed by the defendant and the evidence introduced thereon sufficient to obtain the determination of the percentage of fault attributable to the nonparty?
The defendant Keill in her answer alleged that the son who drove the Jaguar was a party whose negligence or fault contributed to cause the collision and damage to plaintiff’s vehicle. She alleged specific acts of negligence on the part of the son. There was sufficient testimony introduced at the trial to support these allegations and from which a percentage of fault could be determined. The son appeared at the trial and testified on behalf of the plaintiff. The plaintiff and defendant both understood the nature of the issue and introduced evidence on that issue. The trial court made findings as to the percentage of fault of each party involved in the collision, including that of the son. These findings adequately support the judgment entered thereon. We hold that the issue of the percentage of fault of the son was adequately raised in the pleadings, supported by substantial competent evidence and properly decided by the trier of fact.
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The opinion of the court was delivered by
HOLMES, J.:
This is an appeal by plaintiff-appellant from an order of the district court granting summary judgment on the grounds plaintiff’s action was not timely filed. The Court of Appeals in a two-to-one decision affirmed the trial court and we granted review of the decision of the Court of Appeals. (1 Kan. App. 2d 517, 571 P.2d 42, decided August 5, 1977.)
The essential facts are not in dispute.
Plaintiff filed an action for an accounting and recovery of damages alleging defendant breached his fiduciary duties when he served as guardian (conservator) of plaintiff’s estate.
Defendant was appointed guardian by the Shawnee County Probate Court in 1961. He served until discharged in 1967 when a successor was appointed. Plaintiff became eighteen years of age on January 16, 1974. Suit was filed March 1, 1976. Beginning January 14, 1975, the defendant personally or through his attorney executed a series of seven documents, each entitled “Waiver of Statute of Limitations.” The last of these documents executed January 30, 1976, provides:
“Waiver of Statute of Limitations
“Clarence J. Gideon, party of the first part, for and in consideration of the forbearance on the part of Linda Barnes, party of the second part, and/or her personal representative from filing a lawsuit at any time prior to January 16, 1975, and in further consideration of the forbearance on the part of Linda Barnes and/or her personal representative from filing a lawsuit at any time prior to and including February 15, 1976, does hereby waive the Statute of Limitations which would otherwise be applicable to any and all causes of action against me by Linda Barnes arising out of my actions as Conservator and/or Guardian of the Estate of Linda Barnes which was administered in the Probate Court of Shawnee County as Case No. 26,592, and this waiver shall remain effective until March 1, 1976, and no longer.
“DATED this 30th day of January, 1976.
s/ James M. Macnish, Jr.
James M. Macnish, Jr., Attorney for
Clarence J. Gideon, Party of the
First Part
s/ James P. Nordstrom
James P. Nordstrom, Attorney for
Linda Barnes, Party of the Second Part.”
The six prior documents contained similar language, although not identical. The next to last was executed November 12, 1975, and extended the waiver “until February 15, 1976, and no longer.”
Absent the agreement of the parties, our statute of limitations, in effect at the time, allowed plaintiff one year from January 16, 1974, the date plaintiff attained her majority, to file her action. (K.S.A. 60-515[a].)
Plaintiff’s petition was filed in the district court March 1, 1976. The documents executed by defendant were attached to the petition and are relied upon by plaintiff to support her contention that the petition was timely filed. Defendant relies upon the same documents to support his contention the petition was filed too late. Summary judgment was sustained for the defendant on the grounds that the words “until March 1,1976, and no longer” were words of limitation or exclusion and filing of the petition on March 1, 1976, was barred by the statute of limitations. The trial court’s action was affirmed by the Court of Appeals. It should be noted that 1976 was a leap year and March 1 fell on Monday. Therefore, under the decision of the trial court, as affirmed by the Court of Appeals, the last possible time for filing the petition would have been Friday, February 27, 1976.
The sole question before the court is whether the words “until March 1, 1976, and no longer” are words of inclusion or words of exclusion in this case. The trial court stated the issue as:
. . [SJhould the time to be computed include March 1,1976, for purposes of filing within the statute of limitations?”
The trial court in its letter of decision found:
“The Court finds that the term ‘until March 1, 1976, and no longer’ is a term of limitation, and under ordinary usage means to restrict that which precedes to what immediately follows it and upon arrival of the time (March 1) the right will cease to exist. According to dictionary definitions, ‘until’ means ‘up to the time; til such time’. In other words ‘until March 1, 1976, and no longer’ means that on March 1, 1976, the event or as in this case, the right to file, will cease to exist.”
Appellant states her points on appeal as:
1. Where potential litigants entered into an agreement waiving the defense of the Statute of Limitations, “until March 1, 1976, and no longer”, the intent of the parties was manifest that the waiver be effective on March 1, 1976, but not beyond March 1, 1976.
2. Where potential litigants entered into an agreement waiving the defense of a Statute of Limitations under Chapter 60, until an expressly stated date, K.S.A. 60-206(a) was applicable to the agreement, and where the date of termination of the agreement was a Sunday, filing of a petition on Monday was proper.
Defendant contends the intent of the parties and the words used in the various documents were words of limitation and that the right to file the action expired on February 29, not March 1. Defendant also contends that K.S.A. 60-206(a) does not apply in this case, arguing the statute does not apply to contracts or agreements but only to matters of court procedure.
We agree with both of appellant’s contentions and hold plaintiff’s petition was timely filed.
To determine the intent of the parties from the various “waiver of statute of limitation” documents, we must first look to the actual instruments. If it was the intent of the parties to set a specific date prior to which the action had to be filed then, presumably, under defendant’s theory the document should have read until February 28,1976, and no longer. The final waiver was signed by knowledgeable legal counsel for both parties who undoubtedly knew that if March 1, 1976, was to be excluded the action would have to be filed no later than February 27, 1976. There would have been no way for plaintiff to file her action on the 28th or 29th as those days fell on Saturday and Sunday. Setting a specific date of March 1, knowing that February 28th and 29th were not available for plaintiff to perform the necessary act, indicates both parties intended March 1 to be the final date on-which the action could be filed. Further, in referring to the instruments, it is to be noted that the parties apparently interpreted the final date to be inclusive and not exclusive. The next to last waiver extended the time for filing “until February 15, 1976, and no longer,” yet in the final document wherein the consideration is recited the parties refer to the previous waiver as having been effective “prior to and including February 15, 1976.” The parties by clear language in the instrument in question indicated their intent to be that the final date was included, not excluded. Such an intent is consistent with the action of the parties in setting March 1, a Monday, as the final filing date, knowing the previous two days were unavailable for plaintiff to perform the necessary act.
K.S.A. 60-206(cz) provides:
“(a) Computation; legal holiday defined. In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. ‘Legal holiday’ includes any day designated as a holiday by the congress of the United States, or by the legislature of this state. 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.” (Emphasis added)
Appellee contends that the statute has no application to this case as the dealings between the parties were contractual and did not pertain to “any period of time prescribed or allowed by this chapter, by the local rules of .any district court, by order of the court, or by any applicable statute.” Again we must look to the documents executed by the parties. Statutes of limitation are purely creations of the legislature and absent any such statute the plaintiff in this action could file her action at any time, subject only to the common law doctrines of laches, estoppel, etc. The subject matter of the documents in question was based solely on the statute of limitations and therefore K.S.A. 60-206(a) must be considered. As stated by Judge Swinehart in his dissenting opinion:
“As the majority opinion indicates, the bringing of this action was originally controlled by the one-year statute of limitations enunciated in K.S.A. 60-515(a). The series of agreements executed by these parties extended the application of that statute of limitations. The majority chooses to differentiate between an ‘extension’ of the statute and a waiver to assert that statute as a defense. This is a distinction without a difference. Semantical play aside, the true effect of the parties’ agreements was to extend the period of time called for in 60-515(a). The agreements expanded, if you will, that original one-year limitation period. Unfortunately for plaintiff, the expanded period fell one day short of being timely, or so the majority finds.
“My point is this: K.S.A. 60-515(c) was part and parcel of this case. The trial court granted summary judgment solely on the basis that plaintiff’s claim was barred by the statute of limitations. Were it not for the statute, the trial court would have had absolutely no basis for dismissing the suit. Contrary to what the majority finds, this suit was not dismissed because the parties’ contract was a waiver of the affirmative defense of the statute of limitations (K.S.A. 60-208[c]). The statute of limitations controlled the outcome of this case, not the parties’ contract. 60-515(a) was, therefore, an ‘applicable statute’; accordingly, the provisions of 60-206(a) were activated.” (pp. 522-523.)
It appears clear that the parties considered they were dealing with a statutory period and if so the time under appellee’s theory expired on Sunday. Being originally a matter controlled by an “applicable statute,” we are of the opinion that filing the action on Monday was timely under K.S.A. 60-206(a).
The majority of the Court of Appeals viewed the documents of the parties as private contracts which were not controlled by K.S.A. 60-206(a) and K.S.A. 60-515(a). Their determination of the matter was based upon an interpretation of whether the word “until” as used in the documents in this case constituted a word of inclusion or one of exclusion. The majority contended that the case law of Kansas is well settled in a consistent series of decisions holding “until” to be a word of exclusion. The cases cited include Croco v. Hille, 66 Kan. 512, 72 Pac. 208 (1903); State v. Bradbury, 67 Kan. 808, 74 Pac. 231 (1903); State v. Dyck, 68 Kan. 558, 75 Pac. 488 (1904); Maynes v. Gray, 69 Kan. 49, 76 Pac. 443 (1904); State v. Burton, 70 Kan. 199, 78 Pac. 413 (1904); State v. Horine, 70 Kan. 256, 78 Pac. 411 (1904); Buck’s Stove and Range Company v. Davidson, 70 Kan. 885, 79 Pac. 119 (1905); Lightner v. Insurance Co., 97 Kan. 97, 154 Pac. 227 (1916); and Dobson v. Wilson & Co., Inc., 152 Kan. 820, 107 P.2d 676 (1940).
In its discussion of Croco, the Court of Appeals states:
“In Croco, the court noted earlier conflicting decisions of different panels of the Kansas Court of Appeals in Refining Co. v. Peterson, 8 Kan. App. 316, 55 Pac. 673, and Garden City v. Bank, 8 Kan. App. 785, 60 Pac. 823. Croco involved an allowance of time granted by the court that was expressed as ‘until June 20.’ It was held that action by the plaintiff on June 20 was untimely. The court said:
‘The point raised involves the question whether the word ‘until,’ used in the order of the court, means ‘to’ or ‘up to’ June 20, so as to exclude that date, or whether service on the day named was in time. Webster, in defining the word, says that in contracts and like documents ‘until’ is construed as exclusive of the date mentioned, unless it was the manifest intent of the parties to include it. The Century Dictionary also gives the exclusive signification to the word. The question was before the court of appeals in Refining Co. v. Peterson, 8 Kan. App. 316, 55 Pac. 673, and in Garden City v. Bank, 8 id. 785, 60 Pac. 823. It was decided both ways. In the first case the decision was rested on the language of the statute, which provides:
‘ “The time within which an act is to be done shall be computed by excluding the first day and including the last.” (Gen. Stat. 1901, § 5218.)
‘This provision, however, is not applicable to the language of the order of the court under consideration. If an act is to be done within a certain number of days, the statute is controlling. Here, the order was that the time ran ‘until’ a day certain.’ (66 Kan. at 513.) (Emphasis supplied.)” (pp. 520-521.)
The Court of Appeals determined this case was controlled by the Croco rule. A careful reading of the cases cited would indicate this Court has not been entirely consistent and has chosen, on occasion, to find an intent or other distinction to reach a contrary result from Croco. See State v. Bradbury, supra, and Dobson v. Wilson & Co., Inc., supra.
An examination of cases from other jurisdictions reflects a hopeless split of authority, absent statutory definition or requirement, on the meaning of the word “until” when used in contractual documents and court proceedings. Whatever may have been the law of this state prior to this time, we now hold that “until,” and words of similar import, whether used in a contractual sense or in court proceedings, is inclusive of the date mentioned and not exclusive unless it is the clear intent of the parties to make it exclusive.
The decision of the Court of Appeals, affirming the judgment of the district court, is reversed and the case is remanded to the district court for further proceedings on the merits. | [
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This is an original proceeding in discipline against the Honorable Harold L. Hammond, Judge of Division 2 of the Johnson County District Court at Olathe, in the Tenth Judicial District.
Formal proceedings before the Commission on Judicial Qualifications were commenced by the service of a Notice of Formal Proceedings on respondent and his counsel on August 4, 1977. Answer was filed September 22, 1977. The matter came on for hearing before the Commission on November 28, 1977. After both sides had presented evidence and rested, and after oral argument, the Commission took the matter under advisement. Thereafter, and on February 14, 1978, the Commission made written Findings of Fact, Conclusions of Law, and Recommendations. Judge Hammond accepted the Commission’s Recommendation by written acceptance dated February 28, 1978. The matter was argued orally before this court on September 22, 1978, having been delayed by respondent’s ill health and hospitalization.
Concisely, the Commission found these facts: that respondent, while serving as a district judge, had sexual relations in his chambers with one of his female employees; that he made demands for sexual relations with another; that sexual relations with the respondent were made a condition of the continued employment of each of the two female employees; and that one was terminated for refusing to continue a physical relationship with respondent, and the other for refusing to have such a relationship. Respondent, having accepted the Commission’s recommendations, cannot now challenge the Commission’s findings of fact, and he does not attempt to do so.
The Commission concluded that respondent’s acts constituted violations of Canons 1, 2A and 3B (4) of the Canons of Judicial Conduct, adopted by this court as a part of Rule 601. These Canons read in applicable part as follows:
Canon 1. “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
Dated at Topeka, Kansas this 28th day of October, 1978.
Canon 2A. “A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 3B (4). “A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. . . .”
We agree with the Commission that respondent’s acts constitute violations of these Canons. The acts are inimical to and incompatible with the high standards of conduct imposed upon members of the judiciary. The exacting or the demanding of sexual favors as a condition of employment is reprehensible.
The Commission recommended that respondent be disciplined by public censure and by suspension without pay for a period of six months. Respondent accepted those recommendations. This court, however, is not bound by the recommendations of the Commission. The infractions established are most flagrant; they were willful; and they reflect adversely upon the judiciary. Such conduct merits discipline no less substantial than that recommended by the Commission, and perhaps removal from office.
However, since respondent filed his acceptance of the Commission’s Recommendation of discipline, he has suffered extensive cardiovascular disease, and has become totally and permanently disabled. He has been retired from his judgeship because of such disability. In view of his retirement, suspension or removal is unnecessary.
We conclude that Harold L. Hammond should be and he is hereby publicly censured by this court, and directed to pay the costs of this proceeding. This order shall be published in our Reports, and shall constitute the public record in this matter.
IT IS SO ORDERED. | [
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Per Curiam:
This is an appeal by defendant-appellant from a contempt action in which John H. Osborne was found to have violated an injunction entered against him October 29, 1976. The injunction was originally granted for a period of two years and prohibited Mr. Osborne from competing with his former employer, Uarco, Inc. Uarco was in the business of selling business forms and Osborne was a salesman employed by the company. The injunction was based on non-competition provisions in an employment agreement entered into by Osborne and Uarco on May 19, 1976. At that time Osborne had been an employee-salesman of Uarco for several years. Osborne’s employment was terminated July 12, 1976.
The initial controversy involved the construction and validity of the employment agreement and resulted in the injunction which required Osborne to honor the non-competition provisions therein. Donald R. Newkirk, Master appointed by the court, entered a “Report of Master” after hearing testimony for two days and examining numerous documents.
Paragraph 9 of the employment agreement which was in force at the time of Osborne’s termination provided;
“9. For a period of two years following the termination of his employment for any reason whatsoever (or if this period shall be unenforceable by law, then for such period as shall be enforceable), Salesman agrees that he will not contact, with a view toward selling any product competitive with any product sold or proposed to be sold by Company at the time of the termination of Salesman’s employment, any person, firm, association or corporation,
(a) to which Salesman sold any product of Company,
(b) which Salesman solicited, contacted or otherwise dealt with on behalf of Company, or
(c) which Salesman knew or was otherwise aware was a customer of Company,
during the year preceding the termination of Salesman’s employment. Salesman agrees that he will not directly or indirectly make any such contact either for the benefit of himself or for the benefit of any other person, firm, association or corporation, and further that he will not in any manner assist any person, firm, association or corporation to make any such contact.”
The Master found in his report that the salesman’s agreement was enforceable, and accordingly, Osborne was prohibited for two years from contacting Uarco’s customers who came within the terms of the agreement.
The decision of the Master was upheld by the District Court of Sedgwick County, Kansas, when Judge Howard C. Kline expressly adopted the report in its entirety, with the exception that Osborne was permitted to have contacts in a “purely open bid situation.” The journal entry entered by the court read, in part, as follows:
“6. The defendant should be enjoined from the further violation of paragraphs 9(a) and 9(b) of the employment contract of May 19, 1976, except that defendant shall not be enjoined from selling to those UARCO customers — whether private or governmental — in situations where such customers desire to purchase business forms in a purely ‘open bid situation.’ The term ‘open bid situation’ is defined by the Court to mean ‘that situation where the UARCO customer invites various suppliers to submit a quotation based upon the customer’s specifications, and the supplier is chosen by the customer strictly on lowest price.’ Defendant is expressly enjoined from selling business forms to any UARCO customer as defined in paragraphs 9(a) and 9(b) of the employment contract in any non-open bid situation.”
The district court order of injunction was never appealed from and appellant is thus precluded from arguing the merits of that original proceeding in this appeal from a judgment finding him in contempt. This court has repeatedly held:
“. . . that once parties accused of contempt are properly before the court, the merits of the original suit are not involved, and the sole question for determination is whether the permanent injunction order and judgment has been violated by them.” Bongers v. Madrigal, 1 Kan. App. 2d 198, 200, 563 P.2d 515 (1977), citing Horn v. Seeger, 174 Kan. 194, 255 P.2d 997 (1953) and City of Wichita v. Wright, 169 Kan. 268, 219 P.2d 350 (1950). See also, Roush v. Hodge, 193 Kan. 473, 394 P.2d 101 (1964).
On May 6, 1977, Uarco commenced proceedings, from whence this appeal developed, claiming that Osborne was making con tacts with Uarco customers in violation of the injunction. Osborne was accused of making prohibited contacts with six Uarco customers. The six companies were: Fox-Vliet Drug Company, T.I.M.E. Services, Inc., Developer Services, Inc., Northcutt Truck and Trailer Sales, Fairbank Equipment, and Farmers Co-op Grain Company, Haven, Kansas.
The factual issues involved, as determined by the pretrial order, were: (1) whether Mr. Osborne sold products to the six Uarco customers during the year preceding his termination; (2) whether Mr. Osborne had any contact with those same six Uarco customers after October 29, 1976, the date of the injunction; and (3) if Mr. Osborne had made contacts after October 29, 1976, whether said contacts fit within the “pure open bid” exception of the injunction. The mixed issues of law and fact, in the pretrial order, were (1) whether Mr. Osborne violated the injunction and (2), if he had, what remedies were available to Uarco and the court. The trial court found all three factual issues in favor of Uarco, that Osborne had violated the injunction and then rendered judgment and sanctions against Osborne.
In appellant’s first point on appeal he asserts that this court should interpret the “open bid exception” in the original injunction order and should determine whether the same applied to certain sales the trial court found were made to the six Uarco customers. However, in his brief and in argument before this court appellant readily conceded that he had violated the terms of the injunction as to three of the customers in question. In appellant’s brief he states:
“Counsel for Mr. Osborne conceeds [sic] that the evidence shows there was one isolated sale in violation of the injunction to Northcutt Truck and Trailer Sales, and another such sale to Fairbank Equipment, and a third such sale to Farmers Co-op Grain Company of Haven. No attempt will be made to evade the responsibility for these sales and none was made at the trial of this contempt action. No excuse can be made for Mr. Osborne with respect to these sales and the only mitigating circumstances are that sales to these customers were not continuous and, in fact, relatively small. Of course, this cannot excuse Mr. Osborne’s conduct and he must openly acknowledge his responsibility with respect to the sales and he understands that he must accept the consequences of his conduct.”
While the trial court found over 100 violations of the injunction, this admission in and of itself is sufficient to sustain the finding by the trial court that appellant was in violation of the injunction and guilty of contempt. Appellant’s first point, therefore, is totally without merit.
The trial court, having found defendant in contempt of court for violating the injunction, entered the following orders:
1. Granted judgment to Uarco in the sum of $9,110.31 for its attorney’s fees and actual out-of-pocket expenses.
2. Extended the original injunction for an additional 190 days.
3. Assessed a $10,000.00 fine against the defendant, but held payment of the same in abeyance pending future compliance with the injunction. It appears that if defendant did not thereafter violate the injunction the trial court would probably suspend or cancel payment of all or a substantial portion of the fine.
Defendant’s second point on appeal attacks the orders of the court on several grounds, all of which basically assert that the court abused its discretion.
The broad nature of the court’s power is demonstrated by the statute itself:
“Disobedience of any restraining order or injunction may, in addition to other appropriate remedies, or damages, be punished as a contempt.” K.S.A. 60-909.
In a recent decision of the Kansas Court of Appeals the broad powers of the trial court were considered:
“Where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court, the application of a stringent sanction is fully justified and should not be disturbed.” Bongers v. Madrigal, supra, at 202, citing Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P.2d 248 (1970); and Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P.2d 118 (1970).
We find nothing to justify a conclusion that the trial court abused its discretion in the judgment and sanctions imposed against the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Harold Holder brought an action in the district court against his former employer, Kansas Steel Built, Inc., to recover commissions due him together with damages for willful non-payment. Glen T. Childers, the president, a director and the controlling stockholder of the corporation, was joined as a party defendant. The action was tried and a jury awarded $7,857.99 in unpaid commissions and $6,664.64 as the penalty provided for willful non-payment of the commissions under K.S.A. 44-315(h). The maximum penalty was assessed, i.e., an amount equal to the unpaid commissions less the amount conceded due and tendered by the employer.
The employer appeals on various grounds and the employee Holder cross-appeals claiming the penalty should have equaled the total amount of unpaid wages. Before examining the points raised by the respective parties a factual background must be given.
Holder had been employed by Kansas Steel Built, Inc., as a draftsman and salesman since August, 1968. They were engaged in the sale and construction of steel buildings. Holder was hired to sell and to oversee his projects until they were completed. His work included drafting plans, preparing estimates, negotiating with subcontractors and collecting payment from the customers. During actual construction of a building he checked periodically to see that the work was being done correctly and on schedule. He would make the final inspection of the building with the owner-customer and contact the job superintendent of the subcontractor involved to have any final problems corrected.
When Holder was employed it was agreed his wages would be $1,000.00 per month plus commissions. As to the commissions, it was further agreed that when his sales in any year yielded a gross profit to the company of $60,000.00, or more, Holder was to receive a commission of 20% of the gross profits of the company from his projects which exceeded the first $60,000.00. After the $60,000.00 minimum was met his commission was to be paid whenever a project was completed and paid for by the customer.
In February, 1973, Mr. Holder gave Mr. Childers and the company one month’s notice of termination. Holder had not received his commissions on certain projects sold in 1972 but not yet completed and paid for. Holder prepared an estimate of the gross profit on these jobs and gave the estimate to the corporation’s bookkeeper. On March 2, 1973, when his employment terminated, Holder and Childers met and discussed the list of projects on which Holder was to receive his commission when the projects were completed and paid for. Certain adjustments were suggested by Childers and made by Holder on his estimate of gross profit on these projects.
In November, 1973, the Holder projects were finally completed and paid for. The accountant for the corporation, Mr. Melton, determined the corporation’s gross profit on each of Holder’s 1972 projects by using the company ledger. He then took these ledger sheets to Mr. Childers for his review. When the ledger sheets were returned to the accountant additional charges had been entered in pencil by Childers on the ledger sheets. These added charges substantially reduced the gross profit figures on which Holder’s 20% commission was figured. The total commission when figured on these reduced gross figures came to $1,193.35. Holder’s estimate after the March 2 adjustments by Childers came to '$5,746.00.
The additional adjustments included charges for the time Mr. Childers and another salesman had spent in inspecting the Holder projects, a bond fee, a $250.00 charge per project for estimated expenses that might be incurred for warranty work, plus expenses for insulation strips. In addition to the foregoing charges a further deduction of $1,960.00 was made from the 20% commission figure for the use of a company car during the last sixteen months Holder had worked for the corporation. Originally, when Mr. Holder had been furnished a car, he lived in Topeka. In October, 1971, he moved from Topeka to Osage City. The mileage charge made by Childers was for personal use of the company car in driving to and from Osage City. None of these charges or deductions had been made in prior years, and they were not discussed at the meeting on March 2, 1973, when other adjustments were suggested by Mr. Childers and made by Mr. Holder on his estimate.
The commission check covering gross pay of $1,193.35 was issued by the corporation in December, 1973. On the back of the check was typed a statement that “Endorsement herein constitutes full and complete satisfaction of any claim which Harold Holder has or may have for monies or damages against Steel-Built, Inc.” On receiving the check and a schedule of deductions Mr. Holder called the office and advised the bookkeeper that someone would be getting in touch with Mr. Childers. The check was returned to the corporation and suit was filed.
The first point raised by defendants-appellants is that the trial court erred in applying K.S.A. 44-315 which became effective July 1, 1973. The appellants contend the statutes in effect prior to July 1, 1973, K.S.A. 44-301, et seq. (Corrick), should have governed the cause of action because the statutes were in effect when plaintiff’s employment terminated.
K.S.A. 44-315(a) provides that when an employee’s employment is terminated the employer is to pay the earned wages not later than the next regular payday upon which he would have been paid if still employed. Subsection (b) provides:
“If an employer knowingly fails to pay an employee wages as required under subsection (a) of this section, such employer shall be liable therefor and shall be additionally liable for damages in the fixed amount of one percent (1%) of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which paymen [sic] is required or in an amount equal to the unpaid wages, whichever is smaller: Provided, That such penalty shall apply only in the event of a willful violation. . . .”
(The statute was amended again in 1977. However, the changes were minor and are not relevant here.)
The court instructed the jury, in the language of this statute and added:
“If the jury finds that the plaintiff is entitled to recover herein beyond that amount admitted by the defendant [$1,193.35] then they should consider this statute and its application under the facts herein. For this statute to apply the jury must find that the defendant knowingly withheld wages from the plaintiff and that the same was willful on defendant’s part. . . .”
Appellants here contend the court’s application of this statute was retrospective, because appellee terminated his employment on March 2, 1973, and the statute was not effective until the following July. They argue that retrospective application was improper and affected vested rights.
The appellee contends the court was correct in determining K.S.A. 44-315 applied because under the terms of the employment contract no commission was earned until (1) the sale was made, (2) the construction was completed, (3) the gross profit on all jobs totaled $60,000.00, and (4) the customer had paid for the job. Therefore, his cause of action for breach of contract did not accrue until all prerequisites were met in November of 1973.
Mr. Childers testified the commission was not payable to Mr. Holder until the jobs were completed in late November, 1973. At that time the new statute was in effect. Therefore it would appear the court was correct in applying K.S.A. 44-315. The statute was not applied retrospectively, as appellants contend. This court has held that a statute is not to be regarded as operating retrospectively because of the mere fact that it relates to antecedent events or draws upon antecedent facts for its operation. (In re Estate of McKay, 208 Kan. 282, 285, 491 P.2d 932 [1971].) A cause of action accrues when the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement. (Rex v. Warner, 183 Kan. 763, 769, 332 P.2d 572 [1958]; Fletcher v. Holcomb, 142 Kan. 177, 181, 45 P.2d 1053 [1935].) There must be a right, a duty, and a default. (Bruner v. Martin, 76 Kan. 862, 93 Pac. 165 [1907].)
Appellee here could not have successfully maintained an action until November when all the prerequisites were met. The appellee’s right to the commission, appellants’ liability for the commission, and the failure to pay the amount allegedly due all accrued after the new statute became effective. The penalty provisions of K.S.A. 44-315 effective July 1, 1973, are applicable under the facts of this case to commissions becoming due and unpaid in November, 1973.
The second point raised by appellants is based on the refusal of the trial court to hold as a matter of law a reasonable and genuine controversy existed as to the amount due and therefore no penalty could be assessed. This court has held no penalty could be assessed under the prior law when there is an honest dispute as to the amount due. See Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 78 P.2d 854 (1938). In Bradshaw v. Jayco Enterprises, Inc., 212 Kan. 206, 510 P.2d 174 (1973), there was found to be an honest dispute over the amount of vacation pay due. In Holt v. Frito-Lay, Inc., 217 Kan. 56, 535 P.2d 450 (1975), it was said, if the employee and employer in good faith disagree as to the amount due, there exists an “honest dispute” regardless of the amount finally found due.
The “genuine controversy” and “honest dispute” language in these cases was a result of judicial decision. These words were not found in the former statutes.
However, when the new statutes were passed in 1973 certain wording was added. The penalty under K.S.A. 44-315(h) is to be imposed “if an employer knowingly fails to pay an employee wages” within the specified time after discharge or resignation. K.S.A. 44-316(o) was added and relates to cases where there is a dispute as to the amount of wages due. It requires the employer to pay that amount conceded by him to be due. Under subsection (b) acceptance by the employee of the amount conceded to be due by the employer “shall not constitute a release as to the balance of his claim.”
Under K.S.A. 44-315 and K.S.A. 44-316 the penalty authorized can be collected only if the employer knowingly or willfully fails to pay the wages due. This is generally a question of fact to be determined by the trier of fact. In this case the jury was instructed.
“(b) If an employer knowingly fails to pay an employee wages as required under subsection (a) of this section, such employer shall be liable therefor and shall be additionally liable for damages in the fixed amount of one percent (1%) of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to the unpaid wages, whichever is smaller; provided, that such penalty shall apply only in the event of a willful violation.”
The court defined willful:
“A willful act is one indicating a design, purpose, or intent on the part of a person to do wrong or to cause an injury to another.”
The question of whether there was a knowing and willful failure to pay wages was properly left to the jury. Under the evidence there were large deductions from the gross profit figures previously used to figure the 20% commission. The employer unilaterally made these unusual deductions without consulting the employee. The deductions were not discussed at the last meeting of the parties on March 2, 1973. The employer’s use of the release form on the back of the check indicated a knowing and willful attempt to forestall future litigation. The release placed on the back of the check by the appellant was in violation of K.S.A. 44-316(b) which reads as follows:
“(b) Unless payment is made by binding settlement agreement, the acceptance by an employee of a payment under this section shall not constitute a release as to the balance of his claim and any release required by an employer as a condition to payment shall be in violation of this act and shall be null and void.”
The evidence was adequate to support a finding by the jury that the employer had knowingly failed to pay and that the employer willfully violated the act.
The third point raised is that K.S.A. 44-315 is not applicable to this case because K.S.A. 44-314 requires employers to pay all wages due employees “at least once during each calendar month.” Appellants urge it was not a “wage” under this statute and the statute has no application to this case because the commission was due only once a year, or after Holder’s projects had been paid for by the customer.
If an employer and employee could take wages out from under the effect of these statutes merely by agreeing the wages would be paid less often than once a month the intent of the statutes— both 44-314 and 44-315 — would be circumvented. The opportunity for overreaching is evident. By violating 44-314 an employer could insure that he would never be liable for penalties under 44-315.
These sections of the statute need not be read together to the extent urged by appellants. K.S.A. 44-313 sets out the definitions for article 3 of chapter 44, including a definition of wages as follows:
“(c) ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.” (K.S.A. 44-313[c].)
Then 44-314 is a separate section requiring wages be paid at least once a month. It is not a limitation on the 44-313 definitions. Then 44-315 is yet another separate section requiring payment of wages to a terminated employee on the next regular payday, as required under 44-314. The reference to 44-314 is to “clarify” the words, “next payday”, not to exclude those employees paid less often than monthly. In other words, it is not a matter of 44-313 broadly defining wages and 44-314 then narrowing that definition to include only that compensation paid monthly. If the intent of the legislature is to be given effect, the statute should apply to the commissions in this case, and we so hold.
Appellants’ fourth point concerns error in the failure of the court to give certain instructions to the jury including an instruction on the effect of a breach of the employment contract by Holder. It is generally held that a party who has deviated in minor detail from the strict terms of a contract may recover under the contract, less any damages the other party has sustained from the failure to comply strictly. See 17 Am. Jur. 2d, Contracts, §§ 375-378, pp. 818-822. The defendants’ amended answer failed to set forth any set-off or counterclaim of this nature, yet the issue was fully explored by evidence introduced by both parties. In such case failure to amend the pleadings does not affect the result of the trial of such issues. (K.S.A. 60-215[b].) The plaintiff-appellee contended throughout the trial that Mr. Childers on behalf of the corporation agreed on March 2, 1973, the commissions would be paid without further deductions and without further performance by Holder. The defendants-appellants introduced evidence without objection to show that additional expenses were incurred by the corporation in completing the Holder projects.
The set-off urged by defendants-appellants in this case was an affirmative claim which, if established, would affect the amount of the net commissions due Mr. Holder. The burden of proving the amount of commissions due and the terms of the employment contract was placed upon Holder by the court’s instructions. Since there was evidence introduced without objection fully exploring the question of whether there was complete or substantial performance, it would have been better practice to have given appellants’ requested instruction II on substantial performance. However, this court feels the instructions given by the court adequately advised the jury of the respective contentions of the parties. The issues were sufficiently litigated and inherent in the jury’s verdict is a finding that further performance by the employee Holder was not required under the final agreement of the parties on March 2, 1973.
Appellants’ final point is that the court erred in permitting the appellee to introduce the 1973 tax returns of the corporation including balance sheets showing net worth figures. The tax return was introduced to show that the extra expenses charged against Holder’s projects were not included within the costs of the projects or goods sold as reported in the corporation’s tax return. No objection to these items was made in the trial court or at least no objection appears in the record presented to this court. This court declines to consider the point as it was not raised in the trial court, (In re Estate of Barnes, 218 Kan. 275, 280, 543 P.2d 1004 [1975].)
We turn now to appellee’s cross-appeal.
Appellee contends it was error for the trial court to instruct the jury that the maximum penalty allowable under K.S.A. 44-315, an amount equal to the unpaid wages, could not include the $1,193.35 tendered by the appellee. Appellee argues the tender was with conditions attached which failed to comply with K.S.A. 44-316(a). However, subsection (b) provides in part:
“. . . [A]ny release required by employer as a condition to payment shall be in violation of this act and shall be null and void.”
Therefore, it appears appellee would not have been bound by the release on the back of the check and was fully entitled to receive and cash the check without waiving any remedies he might have under the act. K.S.A. 44-316(a) requiring the payment of undisputed wages provides that the employee has the remedies provided by the act only as to “any balance claimed.”
No error has been shown.
The final point raised on the cross-appeal relates to Holder’s claim for punitive damages based on allegations of fraud. The trial court denied a requested instruction on punitive damages. The basis for denial was that the penalty provisions of K.S.A. 44-315 are themselves punitive in nature and a plaintiff cannot have both. Such a statutory provision is in the nature of liquidated exemplary damages. The trial court was correct in denying the request. When an employee elects to pursue the statutory remedy provided in case of willful non-payment of wages he is limited to the penalty provided by the statute, K.S.A. 44-315(b). He is not entitled to recover punitive damages in addition thereto.
The judgment is affirmed on both appeal and on cross-appeal. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal from convictions of aggravated kidnapping (K.S.A. 21-3421), aggravated sodomy (K.S.A. 21-3506), and rape (K.S.A. 21-3502).
Issue No. 1
DID THE TRIAL COURT ERR IN SUSTAINING THE PROSECUTOR’S MOTION IN LIMINE; IS K.S.A. 60-447a UNCONSTITUTIONAL FOR LACK OF RECIPROCAL DUTY BY PROSECUTOR TO GIVE SEVEN DAYS’ NOTICE?
On the day of trial the state filed a motion in limine requesting that the trial court limit inquiry into past sexual conduct of Brenda King, the complaining witness, pursuant to K.S.A. 60-447a. No motion had been filed by the defendant pursuant to K.S.A. 60-447a to admit such evidence. K.S.A. 60-447aprovides:
“(1) Except as otherwise provided in subsection (2), in any prosecution for the crime of rape, as defined by K.S.A. 21-3502, or for aggravated assault with intent to commit rape, as provided in K.S.A. 21-3410, or for an attempt to commit rape, as provided in K.S.A. 21-3301, or for conspiracy to commit rape, as provided in K.S.A. 21-3302, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, nor shall any reference be made thereto in the presence of the jury, except under the following conditions: A written motion by the defendant shall be made at least seven days before the commencement of the trial to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The seven-day notice required herein may be waived by the court. The motion shall state the nature of such evidence or testimony and the relevancy thereof, and shall be accompanied by an affidavit in which an offer of proof of such 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.
"(2) In any prosecution for a crime designated in subsection (1), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.
“(3) As used in this section, ‘complaining witness’ means the alleged victim of any crime designated in subsection (1), the prosecution of which is subject to this section.”
The defendant objected to the state’s motion as he desired to establish Ms. King was estranged from her husband and living with another man (not the defendant). The defendant further challenged the constitutionality of K.S.A. 60-447a. The state’s motion was sustained. Evidence of the fact Ms. King was separated from her husband was introduced through the testimony of the husband who was called by the state as a rebuttal witness. Although arguing that “his hands were tied” by the ruling, defense counsel does not show any new areas that he was precluded from exploring. The trial court specifically authorized the defendant to inquire into any areas opened up by the state. There is no showing of any abuse of discretion by the trial court.
The defendant challenges the constitutionality of K.S.A. 60-447a. In so doing he likens the statute to the “alibi” statute (K.S.A. 22-3218) which was held to be unconstitutional in Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977). In Talley we held that due process forbade enforcement of a statute requiring defendant to give pretrial notice to the prosecutor of his intent to introduce alibi evidence and identify alibi witnesses unless there were reciprocal discovery rights. K.S.A. 60-447a is aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of this strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities. Adequate safeguards exist in K.S.A. 60-447a for the admission of testimony of prior sexual conduct of the witness when the same is appropriate in a particular case. K.S.A. 60-447a is not violative of the due process clause of the Fourteenth Amendment to the United States Constitution.
Issue No. 2
WAS THERE SUFFICIENT EVIDENCE FOR THE CONVICTION OF AGGRAVATED KIDNAPPING?
Brenda King testified as follows: She was walking alone on a street at night when the defendant stopped his automobile and asked her if she wanted a ride. She declined the offer and the offer was repeated. The defendant drove away. Subsequently the defendant jumped out from behind a tree and grabbed Ms. King. They struggled, the defendant took an object from his pocket and pressed it into her back. The defendant forced her to his car, placed her in the passenger’s seat and crawled over her to the driver’s seat. He speeded up and slowed down as necessary to avoid stopping at red lights. The defendant drove into a parking lot and stopped. Ms. King jumped out of the automobile at that point and ran screaming for help. She was pursued by the defendant. They struggled and a gun which fell from defendant’s coat was retrieved by the defendant. The defendant placed his hand over her mouth and walked her to his apartment. Ms. King did not try further escape as she was restrained by and frightened of the armed defendant. The defendant then disrobed her and committed the acts of sodomy and rape.
The defense to the case was that no such incident occurred. Defendant contended he was a dealer in illicit drugs and that the charges herein were the result of a “frame” by a rival drug dealer. He testified that Ms. King was a drug pusher who had worked with him. Ms. King denied any prior contact with the defendant.
The defendant further contends there was insufficient evidence to convict him of aggravated kidnapping because the taking of the victim was not to facilitate the crime of rape. The test to be applied is set forth in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), as follows:
“We therefore hold that if 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.
“For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is. The list is not meant to be exhaustive, and may be subject to some qualification when actual cases arise; it nevertheless is illustrative of our holding.”
The evidence herein is sufficient under Buggs, supra, to establish that the taking was to facilitate the crimes of aggravated sodomy and rape. The point is without merit.
Issue No. 3
WAS THERE SUFFICIENT EVIDENCE FOR THE CONVICTION OF AGGRAVATED SODOMY?
The statutes defining sodomy and aggravated sodomy are as follows:
K.S.A. 21-3505:
“Sodomy is oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal. Any penetration, however slight, is sufficient to complete the crime of sodomy.”
K.S.A. 21-3506:
“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; . . .”
The victim testified that the defendant spread his legs across her and ordered her to engage in fellatio. Upon her refusal, he grabbed her mouth and inserted his male organ between her lips. Further entry was stopped by the victim’s clenched teeth. The defendant contends that this was insufficient penetration to con stitute the crime of sodomy. This precise question has not previously been before this court.
In People v. Hickok, 96 Cal. App. 2d 621, 216 P.2d 140 (1950), a similar question arising out of a similar factual situation was raised. In Hickok, the California Court of Appeals said:
“The second contention of appellant is that the evidence fails to show a violation of section 288a of the Penal Code. That section provides: ‘Any person participating in the act of copulating the mouth of one person with the sexual organ of another is punishable by imprisonment in the state prison for not exceeding fifteen years.’ The theory seriously urged by appellant is that, since the evidence admittedly shows that the prosecutrix had her teeth tightly clenched, a violation of the section did not occur. To state the contention is to refute it. The lips constitute the entrance to, and are part of, the mouth. Admittedly, the evidence shows a penetration beyond the lips of the prosecutrix. Cases such as People v. Angier, 44 Cal. App. 2d 417, 112 P.2d 659, and People v. Coleman, 53 Cal. App. 2d 18, 127 P.2d 309, are not here applicable. In those cases there was no penetration — here there was an insertion into the mouth beyond the lips. The degree of penetration is a false factor. Any penetration of the mouth, no matter how slight, constitutes a violation of the section. (People v. Milo, 89 Cal. App. 2d 705, 201 P.2d 556.)” (96 Cal. App. 2d at 628; 216 P.2d at 145.)
The logic of this result is compelling. Note, too, that the Kansas sodomy statute (K.S.A. 21-3505) specifically states “any penetration, however slight, is sufficient to complete the crime of sodomy.” No comparable provision exists in the California statute pertaining to oral copulation (Cal. Penal Code § 288a). We hold that penetration of the defendant’s male organ beyond the lips of the complaining witness constitutes sodomy although further penetration was prevented by her clenched teeth.
Issue No. 4
IS K.S.A. 1977 SUPP. 21-4618 ON PROBATION AND SENTENCING FOR CERTAIN CRIMES INVOLVING FIREARMS UNCONSTITUTIONAL?
The defendant contends K.S.A. 1977 Supp. 21-4618 is unconstitutional as it invades the province of the trial judge and discriminates against individuals who use firearms in the commission of crimes. These points have been determined adversely to defendant in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1977), wherein we held:
“A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment.
“K.S.A. 1977 Supp. 21-4618 and 22-3717(8), which deny the privileges of probation and parole and require mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime, are not constitutionally impermissible as denying equal protection of the law.
“In light of the Kansas sentencing statute, K.S.A. 21-4501(h), the provisions of K.S.A. 1977 Supp. 21-4618 and 22-3717(8) denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of murder in the second degree are not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court’s prerogatives.” (Syl. 4, 5, and 6.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
All parties appeal from the judgment entered by the trial court in this contract action. The facts are complicated. We will state the controlling facts and the judgment entered, and then turn to the issues.
In 1969, Andy Dominguez and his wife, Wanda Dominguez, leased a new building in the Westloop Shopping Center, in the west part of Manhattan, Kansas, from the then owner, Town Building and Investment Co., Inc. (Shortly thereafter, Town Building and Investment Co., Inc. sold the realty to SBL Services Corporation of Topeka.) Mr. and Mrs. Dominguez formed a corporation, Canterbury Court, Inc., the plaintiff in this action. The corporation commenced a new business in the spring of 1970, known as Canterbury Court, upon the leased premises. The business catered to Kansas State University students. It was a large recreational center occupying some 10,000 square feet of floor space; its facilities included 12 or more pool tables, foosball and other game tables, pinball machines, a restaurant, a band stand, and booths and tables providing seating for several hundred people. Coors beer was sold. Dance bands provided “live music.” Both Mr. and Mrs. Dominguez were active in the management and operation of the business.
Stuart Rosenberg came in contact with Canterbury Court through his work as a booking agent for various rock groups. Rosenberg and David Renyer became interested, and on April 18, 1973, entered into an agreement with Canterbury Court, Inc., for purchase of the business.
The agreement provided in substance that the corporation would sell and Rosenberg and Renyer would buy the business known as Canterbury Court, together with all fixtures and personal property used therein, together with the trade name and good will of the business; that the lease would be assigned to Rosenberg and Renyer although the Dominguezes would remain personally liable on the lease; that Rosenberg and Renyer would pay $140,000, payable $15,000 in cash and the balance at $1500 per month, together with 9Y2% interest on the unpaid principal; that Rosenberg and Renyer would pay the monthly rental to SBL, would maintain the personal property in good condition, keep up certain insurance, pay all taxes, obtain and retain a city beer license, comply with all laws and ordinances, and continue to use Coors beer as the principal beer to be sold on the premises. The contract also provided:
“9. In case of the failure of the said parties of the Second Part to make any of the payments within sixty (60) days of the date when each is due, or to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the Party of the First Part, be forfeited and determined, and the Parties of the Second Part shall forfeit all payments made by them on this contract, and such payments shall be retained by the said Party of the First Part in full satisfaction and liquidation of all damages by it sustained; and in case said Second Parties have entered into possession of said premises, and the personal property heretofore enumerated the said First Party shall have the right to re-enter and take possession of the premises and the personal property aforesaid.”
Rosenberg and Renyer went into possession on April 18, 1973, and operated the business thereafter. Apparently no difficulties arose during the balance of 1973. In 1974, however, Rosenberg and Renyer became delinquent in their payments and in other ways failed to carry out their commitments. Mrs. Dominguez wrote to them on May 30, 1974, and expressed the hope that they would catch up on the past due payments.
Mr. Myers wrote to Mr. and Mrs. Dominguez on June 7, 1974, stating in substance that his firm had been retained by Rosenberg and Renyer “for the purpose of obtaining a reformation” of the sales agreement; that his clients had recently obtained documentation that gross income for Canterbury Court for the year 1972 was $90,094.99; that Mr. and Mrs. Dominguez had represented the 1972 gross to be $139,700 during the negotiations for sale; that Rosenberg and Renyer relied on that misrepresentation; that Rosenberg and Renyer “relied on the customary method of determining the value of a business of this nature as being equal to one year’s gross income”; that they had been damaged in an amount equal to the difference between the two figures; and demand was made that the contract be reformed to reflect a purchase price of $90,000, and that the payment schedule be revised accordingly.
Plaintiff, Canterbury Court, Inc., commenced this action against the defendants, Rosenberg and Renyer, on June 18, 1974. The petition alleged the contract, alleged six breaches thereof by the defendants, and sought forfeiture and termination of the contract, and damages of $10,187.30 for loss of and damage to the equipment and fixtures. Defendants denied most of the breaches alleged, explained others, claimed fraud, and asked that Mr. and Mrs. Dominguez be made third-party defendants. Claiming fraud in the inception, they counterclaimed for $148,275.02 plus $50,000 punitive damages and attorney’s fees. They made a like claim against the third-party defendants. Plaintiff and the third-party defendants denied fraud or misrepresentation.
The contentions of the parties were stated in the pretrial order as follows:
“Plaintiff states that this is a foreclosure proceeding on a contract for the sale of a business, fixtures and equipment of Canterbury Court. Plaintiff alleges that defendants have defaulted on the terms of the agreement in the following:
“(a) They have not paid the payments to plaintiff as contracted for.
“(b) They have permitted the fixtures and inventory to be dissipated.
“(c) They have not used the kind of beer that was stipulated in the contract.
“(d) They have not made the lease payments to the lessor that were assumed under the contract.
“Plaintiff seeks strict foreclosure with no redemption period; that it be given immediate possession; that they have judgment for damages.
“Defendants admit that they have not made the payments under the terms of the contract, but allege that plaintiff is estopped from making its claim because of fraud in the inception of the transaction in the following particulars.
“(a) That plaintiff and its major stockholders, Andy Dominguez, Jr. and Wanda Dominguez, alleged to the defendants that the business had, in 1972, grossed the total of $139,700.00. That it made a net profit from the operation of the business in 1972 of some $45,000.00, when in truth and in fact the gross figure was less than $100,000.00, and the business showed a net loss.
“(b) That defendants relied upon these representations, which the plaintiff knew to be untrue at the time they were made and that defendants would not have completed the transaction had they been aware of the true facts as they now are.
“(c) The measure of damages is in the sum of $140,000.00. Defendants desire to continue in business. Actually defendants’ damage is the difference between what they owe the Dominguezes and what the actual value of the property was at the time of sale, which was nothing.
“Defendants contend that they no longer use Coors beer, as a primary beer, because of a change in business circumstances.”
Trial to the court commenced on July 2, 1975. Thereafter, the parties submitted proposed findings of fact and conclusions of law, and trial court entered judgment August 29, 1975. Its findings, included within the journal entry of judgment, are in applicable part as follows:
“5. [After April 18, 1973], The defendants . . . went into control of said business and took possession of said personal property.
“6. That notwithstanding the provisions of [the sale] agreement and the commitments therein made by defendants, the defendants failed to comply with the terms of said agreement in the following respects:
“(a) Defendants failed to make the required payments of purchase on time pursuant to the terms of the agreement. The last payment made was June 25, 1974, and is being held in escrow by said escrow agent pursuant to the direction of the defendants. There is due the plaintiff and third party defendants, pursuant to the sales agreement $24,557.60 as of September 1, 1975, which includes interest at 9¥¿% per year.
“(b) Defendants failed to make the required payments to the lessor and its assignee, pursuant to the terms of the sales agreement. There is due the lessor by the defendants payments of $11,731.60 as of September 1, 1975, which includes interest at 8% per year.
“(c) Defendants failed to maintain and. keep in good repair, normal wear and tear excepted, the personal property turned over to them, and the loss to the plaintiff is $3,567.50 (Plaintiff’s Exhibit D); and to pay Merchant Association dues of $320.00.
“(d) Defendants failed to furnish the plaintiff a quarterly report of gross receipts.
“Thereupon, it is the Judgment of the Court that the plaintiff and third party defendants should be and hereby are awarded judgment against the defendants as follows:
“The agreement between the parties, (Plaintiff’s Exhibit 11) is hereby declared terminated and it is Ordered that all payments made by the defendants pursuant to said agreement to said date be forfeited.
“The personal property and fixtures and all replacements purchased by the defendants as substitutes for the property conveyed and described in the addendum to Plaintiff’s Exhibit 11 shall be returned to the plaintiff and third party defendants at the close of the business day on August 31, 1975.
“That the plaintiff and third party defendants have judgment against the defendants in the following amounts:
“(a) Past due payments on aforesaid installment agreement in the amount of $24,557.60 as of September 1, 1975.
“(b) Past due rent due lessor in the amount of $11,731.60, as of September 1, 1975.
“(c) Loss suffered by the plaintiff and third party defendants as a result of defendants failure to keep the personal property in good repair in the amount of $3567.50; and Merchant Association dues of $320.00. a total amount of $40,176.76.
“It is the Judgment of the Court that the past due installment and rent payments are appropriately allowed as damages, inasmuch as during the course of this litigation the defendants continued to occupy and use the premises, and retained the earnings therefrom.
[The court further finds that]
“7. During the early negotiations with the Dominguezes, Rosenberg and Renyer were not furnished with any figures or specific information concerning the financial history of the business, but they were individually and jointly advised by the Dominguezes that it was a good business and if they purchased it they would make lots of money.
“8. That on March 15, 1973, Renyer met individually with the Dominguezes and pressed for financial information concerning the business. The meeting occurred on the premises of Canterbury Court in the business office located therein; Mrs. Dominguez referred to some documents before her and advised Renyer that in 1972 the business had grossed $139,700.00 and had netted approximately $45,000.00. . . .
“9. That upon advice of their attorney, Scott Jarvis, Rosenberg and Renyer on numerous occasions during the negotiations requested the Dominguezes that they be allowed to inspect the corporate financial records. They were always advised that the records were with their accountant in Oklahoma and were unavailable at that time, but they would be made available to them in the future. . . .
“10. In late March, or early April, 1972, Scott Jarvis and Rosenberg made several trips to Manhattan to negotiate with the Dominguezes and they were both given the same information as was given Renyer, that the business had grossed approximately $140,000.00 in 1972 and that there had been a net profit of $45,000.00. . . . Jarvis and Rosenberg, at one of these meetings, indicated their concern as to whether the business was profitable during the summer months when most of the students were gone. In response to this concern, Mrs. Dominguez, in the presence of both Rosenberg and Jarvis, gave them profit and loss statements for May, June and July of 1972, and represented that these were the actual records of the business for that period (Defendant’s Exhibits 14, 15, and 16). These profit and loss statements reflected [a profitable operation during the summer months] . . .
“11. That relying upon the representations made to them by the Dominguezes, that the business had grossed approximately $140,000.00 in 1972 and had shown a net profit of $45,000.00 in that same year, and further relying on the oral and written representations that the business was profitable even during the summer months, Rosenberg and Renyer entered into a contract on the 18th day of April, 1973, with Canterbury Court, Inc. through its corporate officers, Andy Dominguez, Jr. and Wanda F. Dominguez, to purchase the said business and obtain an assignment of the lease of the real estate for the sum of $140,000.00, of which $15,000.00 was paid in cash at the execution of the agreement and the balance was to be paid at the rate of $1,500.00 per month together with interest at the rate of nine and one-half percent (9Vi%) per annum (Defendant’s Exhibit 11).
“12. That after April 18, 1973, Rosenberg and Renyer took over the business and commenced operation thereof and have-continued to do so until this date. That after several months of operation, Rosenberg and Renyer became suspicious that they had been misled for the reason that they knew they were doing a greater volume of business than the sellers, but they were operating continually at a loss. Rosenberg and Renyer made demands for the promised corporate records but they were never received. Finally in April, 1974, Rosenberg asked the Department of Revenue of the State of Kansas for their verification of the gross sales tax paid for Canterbury Court for the year 1972. Information furnished Rosenberg by the Department of Revenue reflected that gross sales reported to the Department of Revenue for the year 1972 by Canterbury Court, Inc. was in the amount of $90,094.99, as opposed to the $140,000.00 that had been represented to Rosenberg and Renyer at the time of the sale.
“16. That Defendant’s Exhibit 6 and Defendant’s Exhibits 1 through 5 indicate that in 1972, instead of the business grossing $140,000.00 and netting $45,000.00 as represented by the Dominguezes at the time of sale, the business grossed only $90,101.00 and showed a net profit of only $6,256.00. . . .
“17. That contrary to the testimony of Scott Jarvis and Rosenberg, Wanda Dominguez denied that she prepared Defendant’s Exhibits 14, 15, and 16, and that she delivered them to Scott Jarvis and Rosenberg. . . . The Court . . . finds that Wanda Dominguez prepared Defendant’s Exhibits 14, 15, and 16 and delivered them to Scott Jarvis and Rosenberg while negotiations for the purchase of the business were in progress.
“18. That contrary to the testimony of Scott Jarvis, Renyer and Rosenberg, Andy Dominguez and Wanda Dominguez deny making representations during the negotiations that the business grossed approximately $140,000.00 in 1972 and netted $45,000.00 for that same year. . . .
The Court after carefully considering the testimony of Scott Jarvis, Rosenberg, Renyer, Roger Sink and Terry Ray, notwithstanding the denial of the Dominguezes, finds that Wanda and Andy Dominguez did make oral representations to Rosenberg, Renyer and Jarvis along with Roger Sink and Terry Ray that the business had grossed approximately $140,000.00 in 1972, and had netted $45,000.00 in that same year.
“19. . . . The Court . . . finds that Rosenberg and Renyer relied and acted upon the representations made to them that the business was successful and that it had grossed approximately $140,000.00 in 1972 and had netted $45,000.00 in 1972, and the written and oral representations that the business showed a substantial profit during the months of May, June, and July of 1972.
“20. That Roger Sink testified that he was a public accountant that had been practicing in Manhattan for many years. . . . [H]e was asked his opinion as
to the value of the business on April 18,1973, and rendered an opinion that it was worth perhaps the value of the equipment, which he estimated to be $10,000.00 to $15,000.00. . . .
“24. The Court further finds from a preponderance of the evidence that the fraudulent misrepresentations made by the defendants Dominguez has been shown by clear and convincing evidence . . .
“Additionally, the Court finds the following findings of fact from the evidence:
“1. The actual value of the property at the time of the sale on April 18, 1973 was $90,101.00, which was the amount of the gross income for the year 1972, which was the year that the representations as to gross income were made, as reflected by the books of the corporation and substantiated by the Department of Revenue records.”
The court then entered judgment as follows:
“It is the Judgment of the Court that the defendants have, by a preponderance of the evidence (which evidence, as heretofore indicated, is clear and convincing) proven that the plaintiff acting by and through the third party defendants did knowingly make false statements of the corporate earnings for the year 1972. The gross earnings would be material, in view of the fact that the value of the property was to be determined by the yearly gross. Further, the term ‘gross income’ is a commonly understood term, unlike terms such as ‘net profit,’ ‘non-operating expense,’ ‘operating expenses,’ etc., which are more subject to varying interpretations.
“It is the further judgment of the Court that the evidence requires the conclusion that the representations as to the several months gross for the summer of 1972 and the expenses incurred, as well as other representations might not alone have properly been relied upon by defendants. However, when considered along with the representations as to the gross of approximately $140,000.00 for 1972 one must conclude that they supported and prompted the reliance by the defendants as to the representations of gross profit. The evidence was such that the Court concludes that the Dominguezes intended to make the representations for the purpose of inducing them to act upon the agreement.
“It is the further judgment of the Court that the election by the defendants to affirm the contract and to have the contract reformed should be and hereby is denied. The Court is of the opinion that before the Court will invoke its equitable powers and reform the contract, the Court would have to be convinced that the defendants would perform the contract as reformed.
“It is observed that the defendants have failed to make certain payments to the plaintiff during the past year. Further, the defendants are in arrears on the payments to the lessor.
“It is the Judgment of the Court that the reformation of the contract whereby the defendants retain possession of the premises under other terms might well interfere with the rights of the third party lessor. In this case the Dominguezes and others remain obligated to the lessor and the lessor can appropriately look to them for payment. Further, the well known maxim that ‘he who seeks equity must do equity,’ would have, at the very least, required the defendants to insure that the lease payments were made. This seems particularly true, inasmuch, as they were allowed to remain in possession. The defendants failed to act fairly in this regard.
“It is the judgment of the Court that the measure of damages as indicated in the conclusions of law as proposed by the defendants should be the difference between the actual value of the property and the value it would have had, had the representations been true. Inasmuch as the representations as to the gross income were considered by and used by the defendants in establishing the value, it would appear to the Court that appropriately the true gross value for the pertinent period might well be indicative of the actual value, notwithstanding that the gross might not have been equal to three times the net for the period.
“The Court has heretofore concluded that the representations as to the gross income were relied extensively upon by the defendants, in establishing value. A true gross of $90,101.00 results ih a conclusion that the actual value is $90,101.00. The evidence shows the represented value to have been $140,000.00.
“Accordingly, it is the judgment of the Court that the defendants have judgment against the plaintiff and third party defendants in the amount of $49,899.00, which is the difference between the represented value and the actual value as determined by the Court.
“It is the further finding and judgment of the Court that the conduct of the plaintiff, Canterbury Court, Inc., and the third party defendants constituted fraud and was wanton. The defendants are entitled to the recovery of punitive damages in the amount of $2000.00, and should have judgment against Canterbury Court, Inc., and the third party defendants, Andy Dominguez and Wanda Dominguez in such amount.
“It is therefore ORDERED, ADJUDGED AND DECREED, that the plaintiff, Canterbury Court, Inc., and the third party defendants, Andy Dominguez and Wanda Dominguez have judgment against the defendants, Stuart Rosenberg and David Renyer, as follows:
“The agreement between the parties, (Plaintiff’s Exhibit II) is hereby declared terminated and it is Ordered that all payments made by the defendants pursuant to said agreement to date be forfeited.
“The personal property and fixtures and all replacements purchased by the defendants as substitutes for the property conveyed and described in the addendum to Plaintiff’s Exhibit 11 shall be returned to the plaintiff and third party defendant at the close of the business day on August 31, 1975.
“That the plaintiff and third party defendants have judgment against the defendants in the following amounts:
“(a) Past due payments on aforesaid installment agreement in the amount of $24,557.60 as of September 1, 1975.
“(b) Past due rent due lessor in the amount of $11,731.60 as of September 1, 1975.
“(c) Loss suffered by the plaintiff and third party defendants as a result of defendants failure to keep the personal property in good repair in the amount of $3567.50; and Merchant Association dues of $320.00; or the total amount of $40,176.76.
“It is further ORDERED, ADJUDGED AND DECREED, that the defendants, Stuart Rosenberg and David Renyer have judgment against the plaintiff, Canterbury Court, Inc., and the third party defendants, Andy Dominguez and Wanda Dominguez in the amount of $49,899.00 as actual damages, and $2000.00, as punitive damages; and that the judgment of the plaintiff and third party defendants against the defendants be applied as a setoff in the amount of $40,176.76, so that the defendants have actual judgment in the amount of $11,722.24.
“It is further ORDERED, ADJUDGED AND DECREED that the costs be taxed equally to the parties.”
The first and principal issue to be determined on appeal is whether the evidence discloses actionable fraud. The trial court concluded, upon disputed evidence (and that finding is supported by substantial evidence, and is binding upon us), that plaintiff, through its agents, falsely represented (1) that the 1972 gross income was $140,000, when in fact it was not; (2) that the 1972 net income was $45,000, when in fact it was not; and (3) that the summer months were profitable, when in fact they were not. The court determined that the latter two could not properly have been relied upon by the defendants because “net” is a variable figure, dependent in large measure upon accounting practices and management. This was acknowledged by defendants’ witnesses. The figures supplied by plaintiff prior to the execution of the contract, for May, June and July, 1972, reflected gross or total income for those months of $22,686.66; defendants’ gross receipts for those months totaled $24,133.69 in 1973 and $29,519.95 in 1974. Expenses, of course, varied.
The annual gross income figure was recognized by the defendants, by defense counsel, and by the trial court as of major significance. “Gross income” is defined in the Internal Revenue Code as “all income from whatever source derived.” 26 U.S.C.A. § 61. It is generally understood to mean total receipts, every bit of money or credit received, before any expenses or disbursements are made. Although the meaning of the term “gross income” may vary, depending upon the subject under consideration, the context in which it is used, and the results intended to be accomplished (see Alexander v. Alexander, 158 F.2d 429, 430 (10th Cir. 1946), cert. den. 330 U.S. 845, 91 L.Ed. 1290, 67 S.Ct. 1086), we conclude that what the parties to this action had in mind, when they spoke of “gross” or “gross income” was the total receipts from the business, before any payments were made therefrom.
The trial court found the gross income from the business in 1972 was $90,101. It took this figure from plaintiff’s report of gross sales to the Kansas Department of Revenue for sales tax purposes in the year 1972. Plaintiff’s books, however, reflect gross receipts of $117,742 for that year, and payment of “commissions” to the bands who performed, for a total of $27,641. A deduction of this amount results in what plaintiff shows as “total taxable income” of $90,101; that was the figure plaintiff reported to the Department of Revenue. The .witnesses explained that sales tax was paid by the plaintiff on the latter figure because the bands were to report and pay sales tax on their respective earnings. Under these circumstances, we conclude that gross income for the year 1972 was $117,742, not $90,101.
The trial court’s finding and conclusion is therefore modified to reflect that plaintiff falsely represented its 1972 gross income to be $140,000 when in fact it was but $117,742.
However, the mere proof of the making of a false statement and reliance thereon does not establish actionable fraud; it is incumbent upon one who bases a claim upon fraud to prove that the fraud caused injury or loss.
Here, the 1972 gross receipts, represented to be $140,000, were actually only $117,742. But the 1973 gross receipts, when the business was operated until mid April by plaintiff and thereafter by defendants, totaled $149,572; and in 1974, when Canterbury Court was operated solely by the defendants, gross receipts soared to $164,889.33. Whether the defendants operated the business at a profit or not is immaterial; the issue is whether the defendants sustained damages in reliance upon the misrepresentation. They were led to believe that they were purchasing a business which grossed $140,000 in the prior year. During the two years following, the business grossed substantially more than that figure.
Though the giving of false information is or may be morally wrong, the false information relied upon must be the cause of injury before a claim for actionable fraud arises. In the early case of Stinson v. Aultman, 54 Kan. 537, 38 Pac. 788 (1895), this court said:
“To maintain an action for relief on the ground of fraud, it must be alleged and shown that the fraud occasioned loss or injury to the plaintiff. (Syl. 2.)
“The question then is presented, whether the petition in this case and the facts proven at the trial are sufficient to show that the plaintiffs are entitled to relief on the ground of the fraud of the defendant. To entitle the plaintiffs to such relief, it must be shown, not only that the defendant was guilty of fraudulent conduct, but that the fraudulent conduct resulted in injury or loss to the plaintiffs. . . .” (pp. 539-540.)
This premise has been followed in many of our later cases. See Bailey v. Oatis, 85 Kan. 339, 116 Pac. 830 (1911); Fleming v. Campbell, 146 Kan. 294, 69 P.2d 718 (1937); Todd v. Wichita Federal Savings & Loan Ass’n, 184 Kan. 492, 337 P.2d 648 (1959); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1 (1970); and Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 507 P.2d 268 (1973).
In the Minnesota Avenue case, supra, we said:
“One of the essential elements of actionable fraud is that the party to whom a misrepresentation is made must rely and act on the same to his detriment. In Todd v. Wichita Federal Savings & Loan Ass’n, 184 Kan. 492, 337 P.2d 648, the court outlined the elements needed to establish a cause of action based on fraud, in this fashion:
“ ‘. . . Where a plaintiff seeks to recover because of the fraud of the defendants, based upon false representations, it is incumbent upon him to allege and prove what representations were made, that they were false, that he believed them to be true, and that he relied and acted upon them to his detriment. (Citing cases.)’ (p. 494.)” (p. 466.)
In Prosser, Torts, 4th Ed. § 110, p. 732, the rule is stated:
“. . . [T]he damage upon which a deceit action rests must have been ‘proximately caused’ by the misrepresentation. . . .”
The Restatement puts the rule in these words:
“One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation. ” (Emphasis supplied.) Restatement, Second, Torts § 525, p. 55.
See, also, 37 C.J.S., Fraud § 40, pp. 288-289, and 37 Am. Jur. 2d, Fraud and Deceit § 283, pp. 377-379.
Applying the rule to the facts at hand, we conclude that the evidence in the case before us fails to demonstrate actionable fraud. The defendants actually received a business which grossed more each year than had been represented. That they failed to operate the business profitably was not due to any false statement or misrepresentation by the plaintiff. We hold that there was no actionable fraud, and therefore the judgment in favor of the defendants for actual and punitive damages cannot stand.
The defendants contend that the trial court erred in declaring the contract terminated, in ordering all payments made by defendants forfeited, and in denying the election of defendants to “affirm” the contract. There is really no dispute in the record as to defendants’ breach of the contract. They failed to make contract payments and interest for over a year, and they failed to pay rent to SBL for a like period — although they were in possession of the business and were operating it throughout that period. There were other breaches as well. Under the circumstances the trial court did not abuse its discretion in terminating the contract and ordering the payments, made during the early months of defendants’ possession, forfeited. From what we have said earlier in this opinion, the trial court did not err in failing to reform the contract to reflect a smaller purchase price. Finally, in view of defendants’ extended failure to pay rent or otherwise abide by the terms of the contract, the court did not err in ordering them to turn over possession to plaintiff. Other points raised by defendants have been considered, but are now moot in view of our determination of the fraud issue.
Likewise, the points raised in the cross-appeal have either been determined above, or are now moot.
One further matter deserves attention. The trial court ordered that defendants forfeit payments already made to plaintiff, approximately $22,000; and it entered judgment against defendants for the amount of additional contract payments accrued up to time of judgment, in the sum of $24,557.60, plus accrued and unpaid lease payments of $11,731.60, plus $3,567.50 for damage to personal property, and $320 Merchants Association dues. Under the terms of paragraph 9 of the sale agreement, quoted above, plaintiff is entitled to retain payments previously made in full satisfaction and liquidation of all damages sustained at the time a forfeiture was declared. Under the peculiar facts of this case, we hold that the defendants should in all fairness and equity be required to pay the rent accruing while they remained in possession of the premises, as well as the damage to the furniture and fixtures and the accrued assessment to the West Loop Merchants Association, required under the terms of the lease. But under the terms of the sale agreement, defendants should not be required both to forfeit the business and the payments previously made thereon, and be required additionally to pay subsequently accrued contract payments of $24,557.60.
The judgment of the trial court is affirmed insofar as it declared the contract terminated, prior payments made by defendants forfeited, restored plaintiff to possession of the business, including personalty and fixtures, and in the entry of judgment against the defendants for past due rent, damage to personal property, and association dues in the total sum of $15,619.10.
The judgment against the defendants for past due installment payments of $24,557.60, and the judgments against plaintiff and the third-party defendants, are reversed. The case is remanded to the trial court with directions to enter judgment in conformity with this opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a wrongful death action brought on the attractive nuisance theory. The deceased, Lynn Ray Talley, was a 1314-year-old boy who drowned in an oil storage tank located near the outskirts of the city of Wichita. The father of the deceased boy recovered judgment on a jury verdict for $23,500.00. The J & L Oil Company, Inc., which was operator and owner of the oil lease, brings this appeal. It claims the trial court erred in submitting the case on the attractive nuisance theory, in refusing to submit the contributory negligence question to the jury, and in refusing to admit certain evidence proffered by the defendant.
Taking the evidence in a light favorable to the plaintiff we will summarize the evidence. The 1314-year-old boy, Lynn, lived with his mother, step-father, brothers and a sister in a residential area of Wichita. Their home was located within several hundred yards of an oil tank battery which could be seen from the residence. The tank battery was located in a pasture where horses were kept by a third party. Various people of all ages frequented the pasture area for fun and games. The tank battery was inside an area enclosed by a chain-link fence, topped with barbed wire. The gate to this enclosed area was chained and padlocked. However, a depression under the gate permitted a youngster to crawl under the gate and get into this fenced enclosure. The testimony as to the size of this hole was conflicting. It was estimated to be as deep as 24 inches. The cause of the depression or hole was not disclosed but it had existed for some period of time. On the evening of Lynn’s death there were four youngsters about Lynn’s age who played on this tank battery. They gained entry under the fence, climbed up a ladder to the top of the two storage tanks and amused themselves by jumping from one tank to the other, a distance of about four feet. They had played on these tanks before and on the previous day they learned that the clean-out hatch on top of one of the tanks was loose. It was loosely attached by only one bolt. On the day in question one of the youngsters swung the hatch sidewise. Two of the boys, including Lynn, then decided to go down a ladder into the tank. The tank contained about three feet of crude oil. After staying a few minutes they felt light headed so they climbed out of the tank. Later they decided to try it again. On entering a second time the second boy felt light headed and crawled out of the tank. He looked around and Lynn was not with him. The boys enlisted the aid of neighbors. The fire department was then called. The lack of oxygen in the tank made it difficult to retrieve Lynn’s body from the crude oil. After several unsuccessful attempts the firemen managed to retrieve the body. Lynn had become unconscious from lack of oxygen, fell into the crude oil and drowned.
The appellant contends the trial court erred in submitting the case to the jury because the evidence established as a matter of law that no attractive nuisance existed.
The conditions necessary to impose liability on a possessor of land for maintaining an attractive nuisance are listed in Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978), where this court states:
“. . . A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if:
“(1) the possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises, and
“(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and
“(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and
“(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.” (pp. 447-448.)
We have examined each of these requirements in light of the evidence introduced in this case.
First, did the oil company know, or in the exercise of ordinary care should have known, that young children were likely to trespass upon the premises? We believe there was sufficient evidence from which a jury might find that the youngsters living in that area not only played in the pasture but also on and around the tanks located inside the fenced area. Although the president of the company and another employee responsible for the operation of the lease denied seeing youngsters in or around the fenced area, there was testimony from which a jury could find the company should have known that youngsters were playing on and around the tanks. An employee of the company testified he visited the area and inspected the tank battery at least once every day. Various youngsters testified they had played on and around the tanks at previous times. They had never been instructed to leave the area or to stop playing on the tanks. However, they did not testify the company employee saw them on or around the tanks.
The second condition required for an attractive nuisance is that the oil company knew, or in the exercise of ordinary care should have known, that the condition existed and that it involved an unreasonable risk of bodily harm to young children. The tank battery was required by city ordinance to be fenced as a dangerous area. It was located within the city limits. The propensity of youngsters to climb is a matter of common knowledge. Each tank was equipped with ladders both inside and out, and even though the oil company may not have known children would open the clean-out hatch and descend into these tanks, the company through its employees might reasonably have known there was risk of bodily harm to children playing thereon if the hatch were loosened and a child stumbled and fell into the tank containing the oil.
The third condition to be established by evidence is that children because of their youth either do not discover the condi tion or understand the danger involved in coming into the dangerous area. This is a question of fact for the jury in most cases for it depends on the age and understanding of the children as well as the nature of the condition. The location of the storage tanks, the presence of fumes from the oil which displaced the oxygen, and the resulting dizziness and loss of equilibrium are not such that we can say as a matter of law children should understand and avoid.
Turning to the fourth condition — although there can be little doubt that the tank battery was necessary and useful in operating the producing oil lease, the company’s maintenance of proper protective measures must be considered. The tank battery was located within the city limits. Although the chain-link fence, topped with barbed wire as required by city ordinance, surrounded the tank battery there was evidence of a hole or depression underneath the gate which made entry into the enclosed area fairly easy. There was testimony that the hatch on top of the tank battery was equipped with several holes to be used in bolting the hatch solid, yet it had but one loose bolt and the lid could be easily swung aside by applying pressure. It would appear that whether the oil company used ordinary care in inspecting the facility and in maintaining reasonably safe conditions should be left to the jury.
Various cases involving attractive nuisance questions have been cited by the parties but are not dispositive under the facts and circumstances of this case. In Moseley v. City of Kansas City, 170 Kan. 585, 228 P.2d 699 (1951), a telephone pole was held not to be an attractive nuisance. In Pennington v. Oil & Gas Co., 106 Kan. 569, 189 Pac. 137 (1920), a pump and engine used in operating an oil lease were held not to be an attractive nuisance. On the other hand, a barrel of hot water with a defective cover, level with the ground, may be such that a jury could find it to be an attractive nuisance. See Kinchlow v. Elevator Co., 57 Kan. 374, 46 Pac. 703 (1896). A jury question was presented in Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P.2d 41 (1960), where an unguarded warehouse containing wheat treated with a toxic and lethal gas was equipped with a ladder by which children playing in the area ascended to a door and gained entrance into the building.
We hold in the present case a jury question was presented and the trial court did not err in submitting the case on the theory o£ attractive nuisance.
Appellant contends the court erred in refusing to submit to the jury for its decision the contributory negligence, if any, of the 1314-year-old boy and of his parents. The trial court in giving instruction No. 3 stated:
“You are instructed that the Court finds as a matter of law that neither the deceased, parent, or heirs-at-law was guilty of any negligence in this case.”
By giving this instruction the court committed reversible error under the facts and circumstances of this case.
Apparently the court made this decision because the lack of oxygen inside the tank was a latent condition unappreciated by the boy or by the parents. This does not negate the question of whether a 1314-year-old boy can be found negligent in trespassing inside a fenced-in area, removing a bolted cover, and descending the stairs into the dark storage tank with oil in the bottom. This court has consistently held that as to older children the child’s contributory negligence is a question of fact to be determined by the jury. See Shank v. Peabody Cooperative Equity Exchange, supra (a case of an eleven-year-old); Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4 (1899) (a case of a fourteen-year-old); Price v. Water Co., 58 Kan. 551, 50 Pac. 450 (1897) (a case of an eleven-year-old); Kinchlow v. Elevator Co., supra (a case of a ten-year-old); and K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686 (1879) (a case of a twelve-year-old).
In Biggs v. Wire Co., supra, this court held:
“. . . We cannot say, as a matter of law, at what age a boy would be possessed of such intelligence, foresight and judgment as to charge him with contributory negligence in a case like the present. It is peculiarly within the province of the jury to determine such questions. . . .” (p. 223.)
The 1314-year-old boy in the present case is over the age which would justify an automatic holding that he was incapable of understanding the nature and consequences of his acts. In Moseley v. City of Kansas City, supra, this court said:
“The attractive nuisance doctrine, . . . applies only to a child of ‘tender ''ears,’ in which the child is a trespasser, at least in a technical sense, but is -mused from the normal liability of a trespasser because of an attractive object or situation, dangerous if used or handled by children who by reason of their tender years lack capacity to know or realize the danger of being about or handling the attractive object or condition. It does not apply to adults. Neither does it apply to children old enough to know the possible danger involved. The term ‘tender years’ never has been defined in exact years and months, but in the overwhelming majority of jurisdictions, where the doctrine is used, it is rarely applied in the case of a child more than ten years of age. In a relatively few instances, each dealing with an unusual situation, the doctrine has been applied to a child of the age of eleven, twelve, thirteen or fourteen years of age. The courts universally hold that the doctrine is not applicable to a normal child more than fourteen years of age. . . .” (pp. 590-591. Emphasis supplied.)
The reason that children nine years of age and younger are generally presumed conclusively incapable of contributory negligence is that they cannot be held to strict accountability to appreciate a danger and to care for themselves as is required of older persons. (Williams v. Davis, 188 Kan. 385, 390, 362 P.2d 641 [1961].) This court has held that as to children between nine and thirteen it cannot be said they are incapable of exercising any care or that they are thus relieved from the doctrine of contributory negligence because of age:
“. . . [T]he question of capacity of a particular child at a particular time in avoiding a particular danger is one of fact, falling within the province of a jury to determine. . . .” (Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659 [1960].)
As to the contributory negligence of the parents it was also error to take this question from the jury. In C.K. & W. Rld. Co. v. Bockoven, 53 Kan. 279, 36 Pac. 322 (1894), the court held the contributory negligence of a parent may be shown to bar a parent’s recovery when the action is brought by the parent.
Here the parents lived near the tank battery, yet had never warned the boy of the dangers. This would raise a question of fact for the jury as to whether they should have known of the dangers and should have warned the boy or declared the tank battery “off limits” to the boy. It does appear that the mother instructed the boy at one time not to play in a shallow pond located in the pasture. The parents testified they had never seen the children playing on the tank battery, but it was visible from their residence. If their children and others habitually played on the tanks, as plaintiff’s evidence tends to indicate, a jury could infer the parents should have known of this fact and taken steps to prevent the children from doing so.
The two remaining questions relate to the admissibility of certain evidence excluded by the trial court. The defendant attempted unsuccessfully to introduce a sample of oil to show the extent of the offensive odor emanating from the storage tank. The sample was not taken from the particular storage tank in question. Production from the lease had been discontinued and the tanks removed when this case was tried. The sample was of oil produced from the same general area or pool. The sufficiency of a foundation for the admissibility of evidence largely rests with the trial court. (Anderson v. Berg, 202 Kan. 659, 451 P.2d 248 [1969].) The oil came from an entirely different tank battery and there were other variables which might well justify the court’s decision, such as the volume of the sample in a gallon can as opposed to the large tank, and the difference in the temperatures outside and inside the two containers which might affect the odors.
There was no abuse of discretion in refusing to admit the sample of oil.
Medical records from the hospital were excluded which showed prior hospitalizations of the boy for alcohol intoxication at one time and for illness suspected to have been caused by ingesting a soft drink containing a drug at another time. The record does not clearly indicate the relevancy of this evidence. The records apparently were offered as bearing on reputation and character. If such was the purpose, we fail to see how the boy’s character could be in issue. However, evidence of these two illnesses and the boy’s propensity for “sniffing gasoline” were brought out in the testimony by one of his friends. A trial judge has a right to reject relevant evidence where such evidence is cumulative of facts established and where the probative value of relevant evidence is outweighed by the risk of placing undue emphasis on some phase of the lawsuit with possible prejudice resulting. (K.S.A. 60-445; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P.2d 219 [1968]; State v. Davis, 213 Kan. 54, 515 P.2d 802 [1973].)
The judgment is reversed for failure of the trial court to submit the question of the contributory negligence of the deceased and his parents to the jury, and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Fromme, J.:
Frank Pencek, Jr. appeals from multiple criminal convictions in Geary County, Kansas. A jury found Pencek guilty of felony murder, kidnapping and rape. He was sentenced for first degree murder, aggravated kidnapping and rape.
The victim of these crimes was Elizabeth Bush. She was a young girl of college age employed as a “rangerette” at the state park at Milford Lake in Geary County. In the early evening hours of May 17,1974, Ms. Bush was abducted from her duty station in the state park. No one witnessed the abduction. Her body was discovered two days later along a back road in Wabaunsee County, near Alma, Kansas. The discovery was made by two farmers as they were preparing to do some field work.
An examination of the body at the scene disclosed that the young lady died of multiple stab wounds inflicted where the body was located. As a result of an investigation the defendant Pencek was arrested.
Two different people who were at the state park on the evening of May 17 had noticed a white Opel station wagon near the duty station of the rangerette shortly before she disappeared. One of these individuals was employed in the service department of an auto dealership in Junction City and was acquainted with Pencek and familiar with his car. The officers were informed of these facts. Thereupon, Pencek became the prime suspect.
Evidence was developed by the investigating officers which tended to establish Pencek’s presence at the scene where the body was located. Footprints and car tracks at the scene where the body was found matched those of the defendant and of his car. The victim’s presence in and around the defendant’s car was established by a palm print found on the car and by blood and hair samples taken from a knife. The knife was owned by the defendant and found in his car. There was other evidence to support a finding of guilt including a confession by defendant while under the influence of sodium pentothal. A loose pubic hair sample taken from the victim matched the pubic hair of the defendant. Evidence of the guilt of the defendant appears overwhelming. The defendant pled not guilty by reason of insanity and, as previously stated, he was found guilty and sentenced on all three counts. He appeals.
The defendant-appellant argues that he was denied a trial by a fair and impartial jury because his motion for change of venue was denied. He argues that so great a prejudice existed against him in the community he could not receive a fair trial in that judicial district. At the hearing on his motion he presented testi mony from three witnesses and introduced various newspaper and magazine articles. It would accomplish little to detail the testimony and set forth the contents of the printed articles.
The state produced various witnesses who testified to the contrary.
Prejudice must be shown as a demonstrable reality before a change of venue is required. The publication of articles in local newspapers does not per se establish prejudice. State v. Sanders, 223 Kan. 273, 279, 574 P.2d 559 (1977); State v. Gander, 220 Kan. 88, Syl. 6, 551 P.2d 797 (1976).
We have studied the testimony and read the printed articles. The published articles are factual and nothing appears personally derogatory about the defendant other than such independent conclusions as might be drawn from the factual statements. The articles were published about six months before the trial and any opinions engendered by the articles would seem to have been tempered somewhat by the lapse of time. There were 108 people called for jury duty. Of the 108 people available only 75 were examined on voir dire to obtain the 42 persons passed for cause. These statistics wholly fail to evince an excited populace. We do not find that prejudice was shown as a demonstrable reality. The motion for change of venue was properly overruled.
The second point raised by defendant has to do with the introduction of photographs which are referred to as inflammatory and prejudicial. The pictures served to unfold and explain the situation found at the scene of the crime. They illustrate the nature and extent of the wounds inflicted which consisted of two stab wounds in the left chest, one in the genitals, and nine in the back extending from the neck to the pelvis. There were lacerations on one hand and above the left eyebrow. We have viewed these pictures together with others objected to by appellant and find no error in their admission. See State v. Wilson, 220 Kan. 341, Syl. 5, 552 P.2d 931 (1976).
The third point raised by appellant concerns the validity of these multiple convictions. Appellant was convicted of felony murder, kidnapping and rape. It is argued that the charges and convictions for kidnapping and rape are multiple prosecutions for the same criminal delinquency and these additional charges should come under the classification of included crimes — those necessarily proved if the crime charged was proved. See K.S.A. 21-3107(2)(d). If the statute referred to is applicable to the present crimes the appellant could be convicted of felony murder or of kidnapping and rape, but not all three. It is argued that since the charges of kidnapping and rape must be proved in order to supply the malice, premeditation and deliberation necessary in first degree murder, such charges are a part of the primary crime charged. We disagree.
Culpable conduct of a defendant, although constituting a single transaction, may result in multiple violations of the criminal code for which the defendant may be severally prosecuted. State v. Pruitt, 216 Kan. 103, 105, 531 P.2d 860 (1975). In State v. Watkins, 219 Kan. 81, 95, 547 P.2d 810 (1976), this court addressed the precise question raised here. It was held that charges of felony murder and underlying felonies of robbery and burglary although constituting one transaction were properly joined and were not improperly carved out of one criminal delinquency. The prohibition against double jeopardy does not bar prosecutions of multiple violations which arise from one criminal transaction. The prohibition is against multiple prosecutions of the same criminal delinquency. See State v. Edgington, 223 Kan. 413, 573 P.2d 1059 (1978), and cases cited at 416. The appellant’s contention is without merit.
The appellant charges that he was deprived of due process by reason of ineffective assistance of counsel. These charges are based upon certain trial tactics used by his appointed counsel in an effort to weaken the overwhelming evidence of guilt. The crimes of the appellant were brutal and distasteful. Appellant pled not guilty by reason of insanity. His counsel at trial attempted unsuccessfully to keep the gory details of these crimes from the jury by proposing a stipulation of facts of the three crimes with the assent of the appellant. The effect of such a stipulation was not crucial in the case when one considers that a confession by the appellant in much greater detail had been obtained voluntarily from the appellant and was to be admitted during the trial.
Before it can be said that there has been a denial of the constitutional right to counsel, it must clearly appear that the representation afforded an accused was wholly ineffective and inadequate. Oswald v. State, 221 Kan. 625, 561 P.2d 838 (1977). Trial strategy and tactics depend in great measure on the discre tion and judgment as well as the expertise of trial counsel. Tuscano v. State, 206 Kan. 260, 478 P.2d 213 (1970). In determining the adequacy and effectiveness of an attorney’s services to his client, the court must look at the representation afforded the accused in its totality and not in fragmentary segments. State v. Brown, 204 Kan. 430, 464 P.2d 161 (1970). The burden is on the defendant to show the representation by the attorney was so ineffective that the total effect was the same as a complete absence of counsel. Lee v. State, 220 Kan. 221, 552 P.2d 626 (1976).
The record in this case when considered in its entirety shows diligent representation of the appellant by the appointed attorney. The possibility, in retrospect, that some strategy or procedure, different from that used by the accused’s lawyer, might have brought about better results for the accused is wholly insufficient to sustain a claim of ineffective assistance of counsel. The point is without merit.
The next point argued by appellant concerns a question of venue. There was evidence the victim of these crimes was abducted from her duty station at Milford Lake in Geary County and taken by threat of force into Wabaunsee County where she was raped and killed. Appellant argues that the trial court in Geary County was without jurisdiction to try the case since the body of the victim was found and the crimes of rape and murder occurred in Wabaunsee County.
The venue statutes read:
“Place of trial. Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” K.S.A. 22-2602.
“Crime committed in more than one county. Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” K.S.A. 22-2603.
As a general rule venue is a question of fact for the jury to determine in the trial of the case in chief. Venue may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. State v. Pyle, 216 Kan. 423, 433, 532 P.2d 1309 (1975); State v. Fleury, 203 Kan. 888, 457 P.2d 44 (1969).
A somewhat similar situation was presented in State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. denied 389 U.S. 933, 19 L.Ed.2d 286, 88 S.Ct. 298 (1967). There a little girl was abducted in Shawnee County and her body later found in Pottawatomie County. The question was whether venue for a felony murder charge lay in Shawnee County. This court held it did under the forerunner of 22-2603. The court observed that the place where the body was found was within five or six minutes driving time from three adjoining counties, and commented (p. 499): “A murderer should not escape punishment because the exact place of his crime is concealed.”
In State v. Pyle the victim was removed from her home and killed in another county. It was held the removal was an act “requisite” to the commission of the murder and that proper venue would remain in Kiowa County — the county from which she had been removed.
In State v. Duvaul, 223 Kan. 718, 576 P.2d 653 (1978), the victim was kidnapped in Sedgwick County and murdered in Butler County. Prosecution in Sedgwick County was held proper under our statute and case law.
Jurisdiction of the District Court of Geary County to try the appellant for crimes initiated in Geary County and consummated in Wabaunsee County cannot be questioned on either the law or the facts of this case. The point is without merit.
One final claim of error was conceded by the state to have merit on oral argument. The claim relates only to the sentence on aggravated kidnapping for which appellant received a second consecutive sentence of life imprisonment. Although appellant had been charged with aggravated kidnapping (K.S.A. 21-3421) the jury was instructed only on simple kidnapping (K.S.A. 21-3420) in the form appearing in PIK Crim. 56.24. Based on this instruction the jury returned a verdict of kidnapping as charged in Count II of the information. The court then sentenced appellant to a second consecutive term of life imprisonment for the crime of aggravated kidnapping. Aggravated kidnapping is a class A felony. Simple kidnapping is a lesser included crime of aggravated kidnapping. See K.S.A. 21-3107(2)(d).
There is nothing in the record from which we can determine the reason why the trial court instructed on simple kidnapping rather than aggravated kidnapping. But regardless of the reason the court limited the jury to a consideration of simple kidnapping. The court’s instruction set out the required elements of the crime of simple kidnapping and the jury brought in its verdict based on those elements. The appellant was convicted of simple kidnapping, a class B felony. The conviction was proper but sentencing for aggravated kidnapping was beyond the authority of the trial court and the sentence is set aside.
The convictions and sentences for murder in the. first degree and rape are affirmed. The conviction of the appellant for kidnapping is affirmed but the sentence thereon is set aside and the case is remanded to the district court with instructions to resentence the appellant for the crime of simple kidnapping, a class B felony. See K.S.A. 21-3420. | [
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The opinion of the court was delivered by
Holmes, J.:
This was an action by The Fourth National Bank and Trust Company, Wichita (the Fourth), appellee, against Mobil Oil Corporation (Mobil), defendant-appellant, for damages based upon Mobil’s refusal to purchase certain shares of stock of Marcor, Inc. (Marcor), pursuant to a written tender offer made by Mobil. The case was submitted on an agreed stipulation of facts and the Fourth was granted judgment for $64,991.43. Mobil appeals.
We will attempt to condense the facts from those submitted by the lengthy stipulation in the trial court.
On or about August 12, 1974, Mobil made a written offer to all of the shareholders of Marcor to purchase shares of preferred and common stock issued by Marcor. Mobil offered to acquire only so much of the outstanding stock as would give it control of Marcor. Paragraph 1(a) of the offer informed the shareholders of Marcor that Mobil would purchase 17,250,000 outstanding shares if that many were tendered by 5:00 p.m., August 23, 1974. Paragraph 1(b) stated that if more than 17,250,000 shares were tendered Mobil would buy at least 17,250,000 shares. It also provided that if more than 17,250,000 shares were tendered and Mobil decided not to buy the excess then Mobil would buy the 17,250,000 shares on a pro rata basis.
The offer prescribed two procedures for tendering shares. Any shareholder could tender his shares directly to the depositary, Continental Illinois National Bank and Trust Company of Chicago (Continental), by executing and transmitting a letter of transmittal, in a form designated by Mobil, together with the stock certificates. The letters and certificates had to be received by Continental by 5:00 p.m., August 23, 1974.
The second procedure for tendering certificates, and the one here involved, allowed the submission of a tender without the concurrent deposit of stock certificates. This method permitted the tender of shares through certain financial institutions, such as brokerage firms, commercial banks and trust companies. As in the direct tender procedure, a duly executed letter of transmittal had to be received by Continental by 5:00 p.m., August 23, 1974. The only difference was that the certificates were not transmitted or delivered with the letter of transmittal but, instead, the bank or other institution was required to execute the guarantee of delivery contained in the letter of transmittal. The certificates could be subsequently deposited or delivered pursuant to the following provision contained in the offer:
“Payment (by Mobil) for Shares so tendered and purchased will be made only against the deposit with the Depositary of the certificates and any other documents required by the Letter of Transmittal no later than eight business days after public announcement by Mobil that a specified number of Shares will be purchased under this Offer if all of the terms and conditions of this Offer are satisfied.” (Emphasis added)
The guarantee portion of the letter of transmittal provided:
“We ... a commercial bank . . . guarantee to deliver to the Depositary certificates for the shares of Common Stock tendered by this Letter of Transmittal in proper form for transfer within eight business days after public announcement by Mobil that a specified number of shares of common stock will be purchased by Mobil if all the terms and conditions of the Offer are satisfied.” (Emphasis added)
Regardless of which method was used the institution would receive a commission from Mobil of 550 per share for all shares purchased.
The Fourth did directly and properly submit certificates representing 1,134 shares of Marcor stock. These shares belonged to five trusts and one estate administered by the Fourth. In those instances the Fourth did not retain custody of the certificates but forwarded them to Continental with the letters of transmittal prior to the expiration date. Mobil did buy a pro rata number of these shares pursuant to the terms of the offer and those purchases are not involved in this appeal.
Two customers of the Fourth delivered stock certificates to it for the purpose of tendering their shares to Continental. 6,062 shares of Marcor common stock were to be tendered. Both shareholders properly executed letters of transmittal. The Fourth then executed the guarantees and forwarded the letters of transmittal without the certificates to Continental prior to the August 23, 1974, expiration date. It is these certificates which the Fourth subsequently failed to deliver to Continental and which form the basis of this action.
Mobil contends the Fourth did not deposit the certificates within time to be accepted by Mobil. By forwarding the letters of transmittal, without also forwarding or depositing the certificates at the same time, the Fourth guaranteed to Mobil that 6,062 shares would be deposited within eight business days after “public announcement by Mobil that a specified number of shares” would be purchased.
Mobil’s offer was oversubscribed by Marcor shareholders. On August 26, 1974, Mobil issued the following press release:
“MOBIL TENDER OFFER FOR MARCOR OVERSUBSCRIBED
“Mobil Oil Corporation announced today that its offer to purchase shares of common stock and convertible cumulative preferred stock, Series A, of Marcor, Inc. had been oversubscribed and will not be extended.
“A preliminary count shows that as of 5:00 P.M. E.D.T. on Aug. 23, 1974, approximately 24.6 million shares of common stock and approximately 4.3 million shares of preferred stock had been tendered. The majority of these tenders is still in the process of review to confirm their compliance with technical requirements.
“Subject to the terms and conditions of the offer, Mobil will purchase a total of 17,250,000 shares, counting each share of common stock as one share and each share of preferred stock as two shares. Based on the preliminary count, approximately 52 percent of the tendered shares will be purchased on a pro-rata basis if the terms and conditions of the offer are met.
“Institutions that have guaranteed delivery of certificates for shares must deliver all guaranteed shares to the depositary, Continental Illinois National Bank and Trust Company of Chicago, on or before Sept. 6, 1974. Certificates representing the balance of the tendered shares, including those guaranteed, will be returned as soon as practicable after Sept. 6, 1974.”
Mobil contends that this press release, and its subsequent dissemination and publication constituted the “public announcement” contemplated by paragraph 4 of the offer and by the letter of transmittal.
The Mobil announcement of August 26, 1974, was delivered to the news media, including the Dow Jones Wire Service; Reuter’s Wire Service; P. R. News Wire; Associated Press; United Press International; The Wall Street Journal; Platt’s Oil Gram; The Oil and Gas Journal; Petroleum Intelligence Weekly; and to various special industry publications, such as The American Banker, Standard & Poor’s, and Moody’s Industrial.
The press release was carried in full on the Dow Jones broad tape, which reaches virtually every brokerage office in the country. Pertinent information from the press release was also carried in The Wall Street Journal on August 27, 1974. The Mobil press release, in one form or another, appeared in at least 50 major newspapers. No determination was made as to how many other smaller newspapers or how many radio or television stations may have carried the announcement. An article appeared in The Wichita Beacon on August 27, 1974, indicating that the offer to acquire Marcor stock had been oversubscribed. Articles also appeared in Standard & Poor’s Corporation Records and in Moody’s Industrial Manual Supplement.
The Fourth was a subscriber to and received The Wall Street Journal during the time in question and although the Fourth does not subscribe to the Dow Jones broad tape, most brokerage firms in Wichita have this service available for their customers along with Standard & Poor’s Corporation Records and Moody’s Industrial Manual.
A trust investment officer of the fiduciary investment division of the Fourth was responsible for the handling of the Marcor stock tenders. He assigned the clerical functions and the monitoring of the transactions to one of his assistants, a bookkeeper and clerk. He also indicated he read The Wall Street Journal on occasion but not on a daily basis.
The trust officer of the Fourth relied in part upon the bookkeeper and clerk to see the “public announcement” of Mobil and she assumed that Mobil or Continental would either send a written notice to the Fourth or would telephone the Fourth when it was time to send in the certificates. She was not a reader of The Wall Street Journal and apparently was not instructed to watch for any announcement.
No officer or employee of the Fourth who had any responsibility with respect to the Marcor matter, saw any of the Mobil press release articles appearing in The Wall Street Journal or in any other newspapers or publications. The trust officer, however, did see a follow-up article indicating that the offer had become effective, which appeared in The Wall Street Journal on September 10, 1974.
It was not until approximately September 20, 1974, that the trust officer suggested to his clerk that perhaps they should contact someone at Continental to check on the status of the tender. However, no action was taken.
On September 23, 1974, the Fourth received a telephone call from Continental. The employee of Continental stated she could not find the stock certificates which should have been received from the Fourth. The assistant in the trust department replied that the Fourth still held the certificates as no notice had been received to send them to Continental. The clerk was then advised that it was too late as the deadline for depositing the certificates had been September 6, 1974.
The 6,062 shares were then tendered to Continental by the Fourth and Mobil refused to purchase them. In discharge of its obligations to its customers the Fourth purchased the shares, paying the amount that its customers would have received if the tenders had been timely made.
Had the certificates been deposited within time, Mobil would have purchased approximately 3,145 shares of Marcor common stock at $35.00 per share. The market value at the time was $17,125 per share.
The Fourth was one of approximately 963 commercial banks, trust companies or brokerage firms that had sent in letters of transmittal without the concurrent deposit of the Marcor stock certificates. Of this number, approximately 699 deposited their certificates within time after Mobil’s press release.
The trial court entered findings of fact and conclusions of law and then entered judgment in favor of the Fourth, based upon the difference between $35.00 per share and the closing price of $17,125 per share as of September 24, 1974, plus commissions and interest for a total amount of $64,991.43.
Several points of error are urged by Mobil but the initial question to be determined by this court is whether the press release issued by Mobil constituted a “public announcement” as contemplated by the offer to purchase. The trial judge in his conclusions of law found:
“1. Use of the words ‘public announcement’ in a tender offer does not give the defendant herein carte blanche to determine the method of announcement. An announcement must be one that is reasonably calculated to provide actual notice by reaching the party to be notified and accurately apprises the one to be notified of the essential facts. Mobil could not reasonably anticipate their announcement would reach the people they had obligated themselves to notify.”
We do not agree.
At the outset it is appropriate to note that the case in the trial court was submitted upon an agreed stipulation of facts and relevant documentary evidence and this court is afforded the same opportunity to consider the evidence as the district court. Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 520 P.2d 1262 (1974); Jennings v. Jennings, 211 Kan. 515, 507 P.2d 241 (1973); Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P.2d 10 (1969).
“. . . Where . . . the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.” American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 572, 545 P.2d 399 (1976).
This case involves the enforcement of the terms of a contract voluntarily entered into by the parties, wherein the provisions of their agreement are clear and unambiguous. The contract rights and obligations here involved are those of sophisticated corporate parties dealing at arm’s length. The Fourth is the largest financial institution in the State of Kansas, and had undertaken a fiduciary obligation, for compensation, that fell directly within the regular scope of its business activity and expertise.
It is not the function of the courts to make contracts but to enforce them. Springer v. Litsey, 185 Kan. 531, 535, 345 P.2d 669 (1959). The duty of courts is to sustain the legality of contracts when fairly entered into, and if reasonably possible to do so, rather than seek loopholes and technical legal grounds for defeating their intended purpose. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 567 P.2d 1371 (1977); Cox v. Cason, 211 Kan. 789, 508 P.2d 499 (1973).
The basic legal principles here applicable are well expressed in 17 Am. Jur. 2d, Contracts, § 242 pp. 627-629 (1964):
“It is a fundamental principle that a court may not make a new contract for the parties or rewrite their contract under the guise of construction. In other words, the interpretation or construction of a contract does not include its modification or the creation of a new or different one. It must be construed and enforced according to the terms employed, and a court has no right to interpret the agreement as meaning something different from what the parties intended as expressed by the language they saw fit to employ. A court is not at liberty to revise, modify, or distort an agreement while professing to construe it, and has no right to make a different contract from that actually entered into by the parties. Courts cannot make for the parties better or more equitable agreements than they themselves have been satisfied to make, or rewrite contracts because they operate harshly or inequitably as to one of the parties, or alter them for the benefit of one party and to the detriment of the other, or, by construction, relieve one of the parties from terms which he voluntarily consented to, or impose on him those which he did not. ” (Emphasis supplied)
The same basic legal principles are applicable to contracts for the sale of corporate stocks:
“. . . Where the terms of a contract providing for the sale of stock are plain, unambiguous and lead to no absurd result, they must control; and they are not affected by previous negotiations nor subsequent conduct of the parties.” 12A Fletcher Cyclopedia of the Law of Private Corporations § 5566 (1972).
In tendering the 6,062 shares of Marcor stock to Mobil, the Fourth agreed and guaranteed to deposit the actual certificates at a future time within the terms of the offer. The offer clearly and unambiguously specified the terms under which Mobil would purchase the shares tendered under this alternative method. The pertinent language provides:
“. . . Payment for Shares so tendered and purchased will be made only against the deposit with the Depositary of the certificates and any other documents required by the Letter of Transmittal no later than eight business days after public announcement by Mobil that a specified number of Shares will be purchased under this Offer if all the terms and conditions of this Offer are satisfied.” (Emphasis supplied)
The trial court appears to have confused the “announcement” provision of the contract with the “notice” provisions or requirements of due process cases arising under the federal and state constitutions. In fact, the “reasonably calculated” language used in the court’s conclusions comes from a leading due process case. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950).
The contract between the parties did not obligate Mobil to give any “notice.” The language of the contract clearly and unambiguously provided only that Mobil would make payment for shares deposited “no later than eight business days after public announcement.” Mobil was only required to proclaim or announce its intention to purchase shares. Mobil was not “obligated” to notify any institutions to send in the certificates.
The trial court ignored one of the cardinal principles of contract law that parties are free to contract for any type announcement or notice they desire. When the parties have specified the type of announcement or notice to be given, that provision is to be enforced as written, whether it results in actual notice or not. 58 Am. Jur. 2d, Notice, § 24 (1971).
Mobil, as the offeror, had the exclusive right to prescribe the terms of the offer. The shareholders of Marcor were free to accept or reject the terms as offered. “As the offeror is at liberty to make no offer at all he is also at liberty to dictate whatever terms he sees fit if he chooses to make an offer. . . .”1 Williston on Contracts § 53, p. 169 (3d ed., 1957).
“It is fundamental that a communicated offer creates a power to accept the offer that is made, and only that offer. Any expression of assent that changes the terms of the offer in any material respect maybe operative as a counter-offer, but it is not an acceptance and constitutes no contract. Unless the original offeror subsequently expresses unconditional assent to the counter-offer there will never be a contract.” Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957 (1976).
The Fourth, as a knowledgeable and experienced banking institution, voluntarily agreed to the terms of the offer and cannot now be allowed to rewrite the contract nor may the court do so. The law presumes the Fourth understood the contract to mean what the terms import and the trial court erred in imposing a much higher standard of announcement than was contemplated by the contract of the parties.
Similar arguments and circumstances as in the case at bar, and growing out of the same tender offer, were recently decided in an action in the United States District Court for the Southern District of Indiana. (The Indiana National Bank, Merchants National Bank & Trust Company of Indianapolis v. Mobil Oil Corporation, No. IP 75-195-C [S.D. Ind. Oct. 13,1977], aff'd, No. 77-2253 [7th Cir. June 19, 1978].) In that case INB and Merchants found themselves in the identical position of the Fourth in this case. INB and Merchants, while conceding that the press release satisfied Mobil’s obligation under the tender offer, argued they were entitled to “notice” as distinguished from a “public announcement.” The trial court in its opinion stated:
“Plaintiffs, in effect, have requested the Court to compensate them for their losses for the sole reason that notice may have been a better method than a public announcement. Plaintiffs urge that the number of failures in delivery guarantees support their position. The Court, however, cannot rewrite the tender offer through the guise of construing the offer. Mobil, aware that its offer price would probably evoke a substantial oversubscription and under pressure from the N.Y.S.E. and S.E.C. to promptly return unpurchased securities, elected to employ the public announcement mechanism to trigger deliveries. In this regard, Mobil, who was confronted with the unprecedented task of handling the 39,000 separate tenders, shifted some of the burden to eligible institutions in exchange for a commission fee. Whether or not individual notice or some other method would provide a better trigger is not the issue. The issue is whether a public announcement was an acceptable practice. Under the circumstances, this Court must conclude that the use of a public announcement to trigger delayed deliveries is and was an acceptable practice.
“It is therefore the Court’s conclusion that the plaintiffs, INB and Merchants, are not entitled to recover upon any of the theories presented to the Court. The Court has found no substance in the security law claims and has found that Mobil complied with the spirit and letter of its offer. Plaintiffs had a contractual right to a public announcement, not to individual notice. Mobil issued the press release which constituted the public announcement. For various reasons, which are more particularly known by employees of INB and Merchants, the plaintiffs simply failed to read and comprehend the announcement. Therefore, they must suffer the loss. Having so found, the Court finds it unnecessary to rule upon or discuss the defenses raised by Mobil.”
The Fourth contends the press release issued by Mobil was not a “public announcement” as contemplated by the offer and letter of transmittal. The Fourth argues that some more specific form of notice should have been given, such as a “tombstone” advertisement. Tombstone advertisements are regularly used in the securities industry and are placed in financial publications such as The Wall Street Journal and, where appropriate, in local newspapers and national publications such as Time Magazine. In view of the fact that the responsible officer of the Fourth conceded he did not read The Wall Street Journal on a regular basis and had not seen the Mobil press release it is difficult to see how the placing of an advertisement in the same Journal would have provided any better form of announcement to the Fourth. In any event, the parties did not contract for a “tombstone advertisement” or for “notice” but only for a “public announcement.”
It is difficult to imagine any other form of public announcement, short of a massive advertising campaign, that would have received a greater dissemination and publication in the various news and trade media.
We agree with the Indiana court that the press release issued by Mobil constituted a “public announcement” and was a sufficient compliance with its obligations under the contract. The Fourth, having failed to comply with the terms of the agreement with Mobil, was simply too late when it finally tendered the stock to Continental.
Having determined that Mobil issued the “public announcement” agreed to by the parties and that the Fourth failed to comply with the terms of the agreement, it is unnecessary to consider the other points raised by Mobil.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Miller, J.:
This is a civil rights action involving alleged religious discrimination. The trial court sustained motions to dismiss, filed by the defendants, St. Mary’s Assumption Parochial School and the Kansas Commission on Civil Rights. Plaintiffs appeal.
Plaintiffs, Gwynne Van Scoyk and Kay Wiley, were elementary school teachers for two years at St. Mary’s Assumption Parochial School in Derby, Kansas. Before the fifteenth day of March of their second year, Father Watson, the administrative head of the school, informed the plaintiffs that neither of their contracts would be renewed. No reason was given for this decision. Both plaintiffs were terminated at the end of the school year, in May, 1975.
Neither plaintiff is a Roman Catholic; both are Protestants. They contend that they were each terminated because of religion. Each filed a complaint with the Kansas Commission on Civil Rights in November, 1975. About a month later the Commission notified each plaintiff that the evidence was not sufficient to support a charge of discrimination; that a No Probable Cause determination was being made; and that the Commission was closing its file. About two months later, each plaintiff filed a notice of appeal with the Commission.
This action was commenced in the district court on May 28, 1976. The initial pleading, entitled “Petition and Appeal,” states two claims for relief. The first is a claim against St. Mary’s for reinstatement, or in the alternative for damages, for wrongful discharge based on a claim of religious discrimination. The second claim, in the nature of an appeal, is against the Commission. Plaintiffs claim that the Commission’s action was arbitrary, capricious and unreasonable, and they seek to have the matter remanded to the Commission with directions to hold a trial on plaintiffs’ claims of discrimination. Following service of summons, both defendants filed motions to dismiss. The trial court sustained both motions and dismissed the action with prejudice.
The first issue is whether plaintiffs could appeal to the district court from the No Probable Cause finding. We recently determined this adversely to plaintiffs’ present contentions in Bush v. City of Wichita, 223 Kan. 651, 576 P.2d 1071 (1978), where we held that no appeal lies from a No Probable Cause determination by the investigating commissioner. The trial court was therefore correct in sustaining the motion of the Commission to dismiss.
The next issue before us is whether an independent action, such as that here asserted against St. Mary’s, may be brought directly in the district court, or whether the enforcement procedure within the civil rights act is exclusive.
K.S.A. 44-1001, et seq., declares it to be the public policy of the state of Kansas to assure equal opportunities to every citizen in securing and holding employment, without discrimination because of race, religion, color, sex, physical handicap, national origin, or ancestry. K.S.A. 1977 Supp. 44-1009 makes it an unlawful employment practice for an employer, because of the religion of any person, to refuse to hire or employ, or to bar or to discharge from employment, such person. Any person who claims to be aggrieved by an alleged unlawful employment prac tice may file a complaint with the Commission. But may such a charge be the basis for a direct civil action in the courts, following the exhaustion of the administrative procedure before the Commission? We hold that it may. We find no language in the act evidencing a legislative intent to make the procedure before the Commission the exclusive means by which rights granted by the act may be enforced.
The Workmen’s Compensation Act states in its first section, K.S.A. 1977 Supp. 44-501, that “Except as provided in the workmen’s compensation act, no . . . employer . . . shall be liable for any injury for which compensation is recoverable thereunder . . .” We have long held that the Workmen’s Compensation Act provides the exclusive remedy, where the parties are under the act and the injuries within its purview. Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P.2d 317 (1976); Fritzson v. City of Manhattan, 215 Kan. 810, 528 P.2d 1193 (1974); Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, reh. 93 Kan. 257, 144 Pac. 249 (1914). But we find no comparable language in the Kansas act against discrimination.
The civil rights delineated by the act are rights in which both the public and the individual have an interest. The Commission may, pursuant to K.S.A. 1977 Supp. 44-1005, initiate a complaint and undertake investigation on its own; or the individual who claims to be aggrieved may initiate the proceedings by filing a verified complaint. The procedure is set forth in that section.
We think it clear that recourse must first be made to the Commission by an aggrieved individual, and the administrative remedies must be exhausted before recourse to the courts. Where the administrative procedure proves efficacious, court action will in most instances be unnecessary. Where a hearing is held, after an order of the Commission is entered , and after the rehearing procedure is exhausted, anyone still aggrieved may appeal to the district court. K.S.A. 44-1011. And see Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975).
Cases will arise, however, in which the administrative procedure is terminated prior to any adjudication by the Commission as in the case at hand, where upon the entry of a No Probable Cause finding, the doors of the agency were closed. Petitioners exhausted their administrative remedies.
The purposes and requirements of the doctrine of exhaustion of administrative remedies (see Stephens v. Unified School District, supra, at p. 226; and Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904, 528 P.2d 1232 [1974]) were satisfied upon the making of the No Probable Cause finding, and the closing of the Commission’s file. We hold that thereafter, plaintiffs were free to pursue the matter further by bringing an independent tort action in the district court; and that such an action, after exhaustion of the available administrative remedies, is not precluded by the act.
This brings us to the final issue: Does the act apply to sectarian employers such as St. Mary’s School? We hold that it does not.
K.S.A. 1977 Supp. 44-1002(b) defines “employer” as follows:
“The term ‘employer’ includes any person in this state employing four (4) or more persons, and any person acting directly or indirectly for an employer as herein defined, and labor organizations, nonsectarian corporations, and organizations engaged in social service work, and the state of Kansas and all political and municipal subdivisions thereof, but shall not include a non-profit fraternal or social association or corporation.” (Emphasis supplied.)
By specifying and including nonsectarian corporations under the act, the legislature obviously intended to exclude sectarian employers. This is in conformity with the federal equal employment opportunities act, 42 U.S.C.A. § 2000e-l, which provides in part that “This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such . . . educational institution ... of its activities.”
Under the undisputed facts before us, we hold that St. Mary’s Assumption Parochial School is not an “employer” under the definition of “employer” included in the Kansas act against discrimination. Accordingly, the trial court was correct in dismissing the action against the school.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Petitioner, Robert H. Wilbanlcs, appeals from an order of the district court of Lyon County, Kansas, dissolving a writ of habeas corpus in an action brought to challenge extradition proceedings.
Petitioner contends that it was error to dissolve the writ of habeas corpus when there was no showing that a magistrate, before issuing an arrest warrant, had made an independent evaluation of the complaint to determine if probable cause existed that a crime had been committed and that Wilbanks committed it. Stated another way, he contends that the complaint, filed with an Idaho magistrate, was in itself insufficient to support a finding of probable cause, and there being no indication that affidavits or other evidence were presented to the magistrate, the issuance of the warrant is constitutionally invalid and will not support extradition. With the exception of his attack upon the initial Idaho complaint, petitioner does not challenge the extradition proceedings or the governor’s warrant. We need not discuss those matters further.
The initial complaint was filed in the state of Idaho on September 3, 1975. It reads as follows:
"COMPLATNT~CBIMINAL
“PERSONALLY APPEARED before me this_day of August, 1975, in the County of Ada, who, being first duly sworn, complains and says: that Robert H. Wilbanks on or about the 17th day of July, 1975, in the County of Ada and State of Idaho, then and there being, did then and there commit the crime of issuing a check without funds (IC 18-3106 felony) said crime being committed as follows, to-wit:
“COUNT I
“That the said defendant, Robert H. Wilbanks, on or about the 17th day of July, 1975, in the County of Ada, State of Idaho, then and there being, did then and there knowingly, wilfully, intentionally, unlawfully, feloniously, and with intent to defraud one Power Shop Equipment and Supply, in the County of Ada, State of Idaho, make, draw, utter and deliver to the said Power Shop Equipment & Supply, a certain check for the payment of money in the sum of $372.61 Dollars, lawful money of the United States of America, which said check was and is in the words and figures as follows:
Robert H. Wilbanks 186
P.O. Box 623 92-6/1241
Boise, Idaho 83701
7-17 , 1975
PAY TO THE ORDER OF Power Shop $372.61
Three Hundred Seventy Two & 61/100-DOLLARS
First Security Bank of Idaho National Association P.O. Box 7069, Boise, Idaho 83707 For_ Robert H. Wilbanks
well knowing at the time of his making, drawing, uttering and delivering said check that he, the said defendant, did not have any funds in or credit with said bank for the payment of said check, or for the payment of any part of said check.
“All of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Idaho.
“Said Complainant therefore prays that a Warrant issue for the arrest of said defendant, Robert H. Wilbanks, and that he may be dealt with according to law.
/s/ William Allan McAndy
William Allan McAndy
“Subscribed and sworn to before me this 3rd day of September, 1975.
/s/ L. Alan Smith Magistrate
“(Filed: 9/3/75)”
Six days later, a warrant was issued by G. D. Carey, another magistrate in the same Idaho judicial district, for the arrest of Wilbanks. The complaint is drawn under section 18-3106 of the Idaho Code (1977 Supp.), which reads as follows:
“18-3106. Drawing check without funds — Drawing check with insufficient funds — Prima facie evidence of intent. — (a) Any person who for himself or as the agent or representative of another or as an officer of a corporation, wilfully, with intent to defraud shall make or draw or utter or deliver, or cause to be made, drawn, uttered or delivered, any check, draft or order for the payment of money upon any bank or depositary, or person, or firm, or corporation, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has no funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation, although no express representation is made with reference thereto, shall upon conviction be punished by imprisonment in the state prison for a term not to exceed three (3) years or by a fine not to exceed $5,000 or by both such fine and imprisonment.
(d) As against the maker or drawer thereof, the making, drawing, uttering or delivering of such check, draft or order as aforesaid shall be prima facie evidence of intent to defraud and of knowledge of no funds or insufficient funds, as the case may be, in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment in full of such check, draft or order upon its presentation. The word “credit” as used herein shall be construed to mean an arrangement or understanding with the bank or depositary, or person, or firm, or corporation upon whom such check, draft or order is drawn for the payment of such check, draft or order.”
A comparison of I.C. 1977 Supp. 18-3106 (a) with the complaint shows that the complaint is written in almost the exact terms of the statute.
Three other sections of the Idaho Code are pertinent. These are I.C. 1977 Supp. 19-504, I.C. 1977 Supp. 19-505, and I.C. 19-506. These read as follows:
“19-504. Examination of person lodging complaint. — When a complaint is laid before a magistrate of the commission of a public offense, triable within the county, he must examine, under oath, the person lodging such complaint, and the written complaint, so lodged, shall be subscribed under oath by the party or parties lodging the same.”
“19-505. Contents of complaint. — The complaint must set forth the facts stated by the complaining witness, tending to establish the commission of the public offense and the guilt of the defendant.”
“19-506. When warrant may issue. — If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.”
Our own statute governing the issuance of warrants for arrest upon the filing of complaints is K.S.A. 22-2302. It reads:
“If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . .”
The Judicial Council note appended thereto states that “This section parallels, with slight modifications, Rule 4 (a) Federal Rules of Criminal Procedure. . . .” The federal rule reads:
“Rule 4 (a) Issuance. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. . .
Charles Alan Wright, in Federal Practice and Procedure, comments on this rule as follows:
“The most important aspect of Rule 4 (a) is the provision that a warrant for arrest may issue under this rule only if it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that an offense has been committed and that the defendant has committed it. This provision was recognized by the Advisory Committee that drafted it to be declaratory of existing law, and must be read in the light of the Fourth Amendment requirement of probable cause that it implements. . . .”1 Wright, Federal Practice and Procedure, Criminal, § 51, p. 33.
“The command of Rule 4 (a), taken from the Fourth Amendment, that a warrant for arrest may issue only on a showing of probable cause, involves one of the most important, and most difficult, concepts in criminal procedure. Its significance is by no means limited to this rule, nor to arrest warrants. The Fourth Amendment lays down the same standard for issuance of a search warrant. It is quite clear that the test of probable cause is the same, whether the warrant is for arrest or for a search, and cases involving search warrants must be considered in passing on probable cause for issuance of an arrest warrant. In addition, the probable cause that will justify a warrant is the minimum standard that must be satisfied if arrest without a warrant or a search without a warrant is to be held valid.
“. . . [R]ecent Supreme Court decisions have answered many, if not all, of the questions as to the showing a complaint must make of probable cause. In Giordenello v. United States the complaint merely stated in the words of the statute that a particular person had committed an offense. The Court found the complaint insufficient, and held that the warrant issued on the basis of the complaint, and the resulting arrest and search, were invalid. The Court said that since the purpose of the complaint is to show the existence of the probable cause required to support issuance of a warrant, the commissioner or magistrate must judge for himself the persuasiveness of the facts relied on by the complaining officer and should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime. The complaint before it, the Court held, provided no basis for the commissioner to determine whether probable cause existed. ‘The complaint contains no affirmative allegations that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.’ The Court held that the commissioner may not rely on a presumption that the complaining officer speaks with personal knowledge. It rejected also the government’s argument that the complaint was adequate since its allegations would be sufficient for an indictment, pointing out that an indictment issues only after the grand jury has determined that probable cause exists, while the complaint is the basis for the commissioner’s determination as to probable cause.
“The Giordenello case held that the basis for the finding of probable cause must ‘appear on the face of the complaint.’ The 1966 amendment of Rule 4 (a), which permits this showing to be made by an affidavit or affidavits filed with the complaint, makes no significant departure from that requirement. . . .”1 Wright, Federal Practice and Procedure, Criminal, § 51, pp. 36-38.
The Fourth Amendment to the United States Constitution provides that:
“The right of the people to be secure in their persons . . . shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This section has been held applicable to the issuance of warrants for arrest as well as warrants authorizing a search. Similar language is contained in section 15 of the Kansas Bill of Rights. As we noted in State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963):
“The Fourteenth Amendment of the Federal Constitution, as extended by the United States Supreme Court in Mapp v. Ohio, supra, to protect citizens of the United States from unreasonable searches and seizures by state officers, does not go beyond the prohibition in our own constitution as above quoted. In other words, the command of the Fourth Amendment in the Federal Constitution to federal officers is identical to the command of Section 15 of the Kansas Bill of Rights to law enforcement officers in Kansas.”
In a long line of oft-cited and now familiar cases, the United States Supreme Court has repeatedly set forth these rules:
1. The standard for arrest, mandated by the Fourth Amendment, is probable cause. Gerstein v. Pugh, 420 U.S. 103, 111-112, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975), and cases cited therein.
2. The Fourth Amendment is enforceable against the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961); Ker v. California, 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623 (1963); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964); Whiteley v. Warden, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971).
3. The Fourth Amendment requires that before a warrant for arrest or search may be issued, there must be a probable cause finding by a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 92 L.Ed. 436, 68 S.Ct. 367 (1948); Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966); Mancusi v. DeForte, 392 U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); Shadwick v. City of Tampa, 407 U.S. 345, 32 L.Ed.2d 783, 92 S.Ct. 2119 (1972); and Connally v. Georgia, 429 U.S. 245, 50 L.Ed.2d 444, 97 S.Ct. 546 (1977).
4. The Fourth Amendment probable cause standards require that before a warrant for either an arrest or a search can be issued, the magistrate must be supplied with sufficient factual information to support an independent judgment that probable cause exists. The magistrate must judge for himself the persuasiveness of the facts; he should not accept without question the complainant’s mere conclusions; and he should not be a mere “rubber stamp” for law enforcement officers. Giordenello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245 (1958); Rugendorf v. United States, 376 U.S. 528, 11 L.Ed.2d 887, 84 S.Ct. 825 (1964); Aguilar v. Texas, supra; Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969); and Whiteley v. Warden, supra.
5. The same probable cause requirements cover the issuance of both federal and state warrants. Ker v. California, supra, and Whiteley v. Warden, supra.
6. Hearsay, set forth in a warrant application, may be relied upon and form the basis for a probable cause finding, so long as a substantial basis for crediting the hearsay is presented. Aguilar v. Texas, supra; and Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725 (1960). We note that rule 4 F.R. Crim. P. has been amended to clarify this issue. The rule now includes the following statement: “The finding of probable cause may be based upon hearsay evidence in whole or in part.” (Rule 4[b] F.R. Crim. P.)
7. An affidavit, or complaint, otherwise insufficient as a warrant application, cannot be rehabilitated by testimony concerning information possessed by the complainant or affiant when he sought the warrant, if that information was not disclosed and brought to the attention of the magistrate before the warrant was issued. Giordenello v. United States, supra; Aguilar v. Texas, supra; and Whiteley v. Warden, supra.
Two of the cases cited above are particularly instructive. In Giordenello, a federal warrant for the arrest of Giordenello had been issued by a United States Commissioner, based upon a complaint filed with the Commissioner. The complaint, sworn to by an agent of the Federal Bureau of Narcotics, recited merely that on or about the date upon which the complaint was filed:
“Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
“And the complainant further states that he believes that_are material witnesses in relation to this charge.” (p. 481.)
Giordenello contended that the complaint was defective in that it in effect recited no more than the elements of the crime charged, and provided no basis for a probable cause determination by the Commissioner. After discussing Rules 3 and 4 of the Federal Rules of Criminal Procedure, and the commands of the Fourth Amendment, the Court said:
“When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner’s determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation thát the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner’s reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. The insubstantiality of such an argument is illustrated by the facts of this very case, for [the agent’s] testimony at the suppression hearing clearly showed that he had no personal knowledge of the matters on which his charge was based. In these circumstances, it is difficult to understand how the Commissioner could be expected to assess independently the probability that petitioner committed the crime charged. Indeed, if this complaint were upheld, the substantive requirements would be completely read out of Rule 4, and the complaint would be of only formal significance, entitled to perfunctory approval by the Commissioner. This would not comport with the protective purposes which a complaint is designed to achieve.
“. . . Here, in the absence of an indictment, the issue of probable cause had to be determined by the Commissioner, and an adequate basis for such a finding had to appear on the face of the complaint.” (pp. 486-487.)
Whiteley v. Warden, supra, involved a complaint filed in a Wyoming state court, and the validity of the warrant issued thereon. The complaint, signed before a Justice of the Peace by the Sheriff of the county in which the offense occurred, read as follows:
“ ‘I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A.D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building].’ ” (p. 563.)
The court said:
“The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. ... In the instant case — so far as the record stipulated to by the parties reveals — the sole support for the arrest warrant issued at Sheriff Ogburn’s request was the complaint reproduced above. That complaint consists of nothing more than the complainant’s conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn’s conclusion was an informer’s tip, but that fact, as well as every other operative fact, is omitted from the complaint. . . . [T]hat document alone could not support the independent judgment of a disinterested magistrate, (pp. 564-565.)
“In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer’s tip that Daley and Whiteley committed the crime. Therefore, petitioner’s arrest violated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial.” (pp. 568-569.)
Applying these principles to the complaint before as, filed in the Idaho court, it is clear that no probable cause information is contained therein. The complaint is drawn in the wording of the Idaho statute, and discloses no factual basis for the belief by the person who signed the complaint that Wilbanks committed the offense charged. The purpose of a complaint is to provide an answer to the magistrate’s hypothetical question, “What makes you think that the defendant committed the offense charged?” (Jaben v. United States, 381 U.S. 214, 224-225, 14 L.Ed.2d 345, 85 S.Ct. 1365 [1965].) The belief of the complainant may have been based upon statements given law enforcement officers by the owner or employees of Power Shop Equipment and Supply; the defendant may have been identified photographically or by fingerprints on the check; the bank upon which the check was drawn may have provided further information. These, however, are suppositions; none of this information is provided in the complaint; none of it was provided to the magistrate so far as we are aware; and no such information is disclosed in the record before us.
We are not unmindful of the cases in which we have said in substance that a properly verified complaint, charging an offense substantially in the language of the statute, is sufficient authority for a finding of probable cause and the issuance of an arrest warrant. For example, see State v. Giddings, 216 Kan. 14, 17, 531 P.2d 445 (1975); State v. Greene, 214 Kan. 78, 79, 519 P.2d 651; State v. Woods, 214 Kan. 739, 741, 522 P.2d 967 (1974); State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970); Topeka v. Raynor, 61 Kan. 10, 58 Pac. 557 (1899); Holton v. Bimrod, 61 Kan. 13, 58 Pac. 558 (1899); and State v. Brooks, 33 Kan. 708, 711, 7 Pac. 591 (1885). To whatever extent those cases are inconsistent with the views hereafter expressed, they are disapproved.
In recognition of the commands of the Fourth Amendment and section 15 of the Kansas Bill of Rights, we have held that an affidavit by an officer that he believes or has good reason to believe that certain contraband items are located in a certain place is not sufficient to support the issuance of a search warrant. State v. McMillin, 206 Kan. 3, 5-6, 476 P.2d 612 (1970). In State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967), Justice Fontron, speaking for a unanimous court, said:
“. . . [Bjefore a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162.)
Arrest and detention are no less serious invasions of the rights of a citizen than are searches of a citizen’s house, automobile, or place of business. Warrants for arrest cannot be issued except upon probable cause. Statements to the contrary in our earlier cited cases notwithstanding, we now hold that a verified complaint couched in the language of a criminal statute, standing alone, is not sufficient to support a finding of probable cause and the issuance of an arrest warrant.
The purpose of a complaint, filed with a magistrate, is twofold: first, its function is to disclose sufficient factual information to enable a. magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed, and that the defendant has committed or is committing it; and second, its function is to inform the defendant of the particular offense with which he or she is charged, and provide an accusation upon which a trial can be held.
Criminal statutes, such as those contained in chapter 21 of the Kansas Statutes Annotated, set forth the statutory definitions of crimes, generally in terms of act and intent. A verified complaint, drawn in the language of a criminal statute, and merely stating that the defendant did certain acts with a specific intent, is not sufficient in itself to support a finding of probable cause. In order to support such a finding, a complaint must disclose the factual reasons for the complainant’s belief. The statement of the facts, in most instances, can be concise: the complainant saw the defendant commit the offense; the owner reports a car stolen, and the defendant is apprehended shortly thereafter, driving the vehicle; the occupant of a building discovers evidence of a forced entry and finds various items of personal property missing, and the items are found later that day in defendant’s possession; a merchant identifies defendant as the person who obtained merchandise by the use of a credit card issued in the name of a third person, and the third person states that the card was stolen, and defendant was not authorized to use it.
Rule 4, Fed. R. Crim. P., limits the magistrate to consideration of “the complaint, or ... an affidavit or affidavits filed with the complaint.” Our statute, K.S.A. 22-2302, provides that a magistrate may consider “other evidence.” It is preferable, and the most desirable practice, to include probable cause information in the body of the complaint. However, we recognize that under the statute a separate affidavit or affidavits may be filed with the complaint, or sworn testimony may be offered. Such testimony should be recorded and preserved, either by a court reporter or through electronic means.
The important point, which we emphasize, is that sufficient factual information must be presented to enable the magistrate to make an independent finding of probable cause before a warrant is issued, as mandated by the Fourth and Fourteenth Amendments, and section 15 of the Bill of Rights.
The Idaho complaint, upon which the warrant was issued, and upon which extradition proceedings are premised, was not sufficient in itself to support a finding of probable cause, upon which the issuance of the Idaho warrant could be based. This brings us to the crucial issue: whether the probable cause requirement of the Fourth Amendment is applicable in extradition proceedings. Petitioner contends that it is, and he cites various cases from other jurisdictions in support of his claim; we will examine; those presently.
Article IV, § 2, clause 2, of the United States Constitution provides the foundation upon which extradition proceedings are based. It provides:
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.” (Emphasis supplied.)
Our statute, K.S.A. 22-2703, is a part of the Uniform Criminal Extradition Act passed by the Kansas Legislature in 1970. It provides in substance that demands for extradition must be in writing, must allege that the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state, and the demand must be “accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon . . . The indictment, information affidavit or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state . . .” (Emphasis supplied.)
Petitioner contends that he is not “charged” as that term is used in article IV, § 2, and that the complaint does not “substantially charge” him with a crime, as those words are used in K.S.A. 22-2703, and thus the extradition request is invalid. We find that the great majority of the recent pronouncements on the subject support the position taken by petitioner. Most, if not all, of these cases were decided following the United States Supreme Court’s pronouncements on the Fourth Amendment in the 1960’s — Jones, Ker, Rugendorf, Aguilar, Jaben, and Spinelli.
The first and perhaps the leading case in this area is Kirkland v. Preston, 385 F.2d 670 (D.C. Cir. 1967). Florida authorities sought to extradite Kirkland from the District of Columbia. The police officer’s affidavit, serving as a complaint, and upon which the arrest warrant was based, recited simply that on or about a given date, Kirkland “DID THEN AND THERE: unlawfully, wilfully, maliciously and feloniously set fire to and burn or cause to be burned a certain building, to wit: The Hut Bar . . . the said bar being the property of one Fredrich Ritter.” The Chief Judge, in the extradition hearing, ruled that Kirkland was “substantially charged” and ordered extradition. Kirkland then sought habeas corpus in the district court, which ruled that the affidavit was “sufficient” and discharged the writ. Kirkland appealed to the District of Columbia Circuit, which held that the Florida affidavit was insufficient. The rationale of the Kirkland decision is set forth as follows:
“Before Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), made the Fourth Amendment applicable to the states through the Fourteenth, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made it enforceable against them by the same sanctions and by application of the same constitutional standards as prohibit unreasonable searches and seizures by the federal government, the quantum of evidence needed for arrest in the individual states was not a matter of federal concern. Though a pre- Wolf constitutional law of arrest could perhaps have been developed directly from the Fourteenth Amendment’s ‘deprivation of liberty’ clause, it apparently was not. And, in fact, only developments since Wolf and Mapp have made it clear that what those cases applied to the states was the whole of the Fourth Amendment, thereby transmuting the federal standard of probable cause into a minimal and uniform requirement of a valid arrest by state officers, [p. 674.]
“There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition arrests. Under its familiar doctrine arrests must be preceded by a finding of probable cause. When an extradition demand is accompanied by an indictment, that document embodies a grand jury’s judgment that constitutional probable cause exists. But when the extradition papers rely on a mere affidavit, even where supported by a warrant of arrest, there is no assurance of probable cause unless it is spelled out in the affidavit itself. Thus Fourth Amendment considerations require that before a person can be extradited on a Section 3182 affidavit the authorities in the asylum state must be satisfied that the affidavit shows probable cause.
“The law appreciates the hardship which extradition can involve: not only the suspension of one’s liberty, but his deportation from the state in which he lives into another jurisdiction which may be hundreds of miles from his home. The law accordingly surrounds the accused with considerable procedural protection to stave off wrongful rendition. It is consistent with this concern for the accused’s just treatment to recognize his right to require official confirmation of probable cause in the asylum state before extradition. This right to probable cause confirmation seems especially appropriate in view of the fact that the accused will have no access to an evidentiary preliminary hearing on probable cause until he finally arrives in the accusing jurisdiction.
“In addition, the interests of the asylum state are advanced by its own probable cause determination. For it would be highhanded to compel that jurisdiction to lend its coercive authority, and the processes of its law, against even its own citizens in aid of an enterprise the key details of which remain in the dark. If, as here, it turns out that the prosecution against the fugitive is unfounded, the asylum state will have expended its resources and given the legitimizing stamp of its judiciary to a cause which is at best futile, at worst arbitrary.
“Recognizing a probable cause requirement in Section 3182, moreover, conflicts with no compelling interests elsewhere in the legal system. If the demanding state does have probable cause data, it will be no real inconvenience to record this evidence in the extradition papers. Documenting probable cause in an affidavit is what the policeman in many jurisdictions, including the District of Columbia, must do if he is to secure an ordinary warrant for an arrest or search. And governors, or habeas corpus judges, will hardly be significantly burdened by having to study written submissions for probable cause in extradition cases.
“From all these considerations the court draws the conclusion that the terms of 18 U.S.C. § 3182 are not met unless the affidavit indicates to the asylum state executive that there is probable cause for believing the accused guilty and that habeas corpus is the appropriate remedy to test the validity of his judgment. . . .” (pp. 676-677.)
We should note that 18 U.S.C. § 3182, the federal extradition statute referred to in the quoted portion of the Kirkland opinion, requires the state seeking extradition to produce “a copy of an indictment found or an affidavit made before a magistrate . . . charging the person demanded with having committed treason, felony, or other crime . . .”
Kirkland has been followed in New York, Delaware, Nevada, Wisconsin, Connecticut, Illinois, Colorado, New Hampshire, Michigan, the First and Third Circuits, and the United States District Court for the District of South Dakota. See People v. Artis, 32 A.D.2d 554, 300 N.Y.S.2d 208 (1969); People ex rel. Porzio v. Wright, 59 Misc. 2d 1056, 301 N.Y.S.2d 668 (1969); People ex rel. Miller v. Krueger, 35 A.D.2d 743, 316 N.Y.S.2d 246 (1970); People ex rel. Cooper v. Lombard, 45 A.D.2d 928, 357 N.Y.S.2d 323 (1974); Grano v. State, 257 A.2d 768 (Del. Super. 1969); Sheriff v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969); State v. Towne, 46 Wis. 2d 169, 174 N.W.2d 251 (1970); Brode v. Power, 31 Conn. Sup. 411, 332 A.2d 376 (1974); Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976); Wellington v. State of S. D., 413 F. Supp. 151 (D. S.D. 1976); United States ex rel. Grano v. Anderson, 446 F.2d 272 (3d Cir. 1971); People ex rel. Kubala v. Woods, 52 Ill. 2d 48, 284 N.E.2d 286 (1972); Pippin v. Leach, 188 Colo. 385, 534 P.2d 1193 (1975); Smith v. Helgemoe, 117 N. H. 91, 369 A.2d 218 (1977); and People v. Doran, 401 Mich. 235, 258 N.W.2d 406 (1977).
lerardi, supra, was decided after Gerstein, in which the United States Supreme Court held that “the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention.” (420 U.S. at 126.) The Ierardi court said:
“We agree with the district court that Gerstein requires a judicial determination of probable cause as a prerequisite to interstate extradition. After Gerstein such a determination must precede ‘any significant pretrial restraint of liberty,’ 420 U.S. at 125, 95 S.Ct. at 868, and we think interstate extradition necessarily involves significant restraint. . . .
“. . . [Respondents point to two governmental interests at stake in extradition which were not considered in Gerstein and which, respondents say, would be defeated by reading Gerstein to require a pre-rendition judicial determination of probable cause. These are the interests of comity in transactions between sister states, and of efficiency in bringing to justice criminals who have fled interstate. We agree that these interests are of the utmost importance, but not that they are significantly burdened by imposition of Gerstein’s requirement in this context. Respondents seem to assume that if a judicial determination of probable cause must precede extradition, it must be provided by the courts of the asylum state, where the fugitive is held. This is not so. Gerstein explicitly rejected the need for adversarial procedures; it required only the neutral and detached judgment of a judicial officer or tribunal, and contemplated that this could be provided before as well as shortly after arrest. Thus nothing in Gerstein prevents the demanding state from providing the requisite pre-rendition determination of probable cause.
“With this in mind, we do not believe it compromises the principles of comity to require a judicial determination of probable cause before rendition. Such a determination is fully consistent with reliance by the asylum state on the regularity of the demanding state’s procedures. . . .
“Nor do we believe that a prior judicial determination of probable cause in this context presents such an obstacle to efficient law enforcement as to justify postponing the determination until after rendition. . . . [Pjapers must in any event be prepared in the demanding state, including (in the absence of an indictment) an affidavit and some form of judicial process, and under Gerstein probable cause must in any event be judicially determined before any extended pretrial detention in either the asylum or the demanding state. In this context to require the judicial determination of probable cause to precede rendition is to impose little additional burden on the states.” (pp. 930-931.)
To be sure, there are jurisdictions in which the Kirkland rationale is not followed. Garrison v. Smith, 413 F. Supp. 747 (N.D. Miss. 1976) and Taylor v. Garrison, 329 So. 2d 506 (Miss. 1976), both reject the Kirkland view; however, these cases were preceded by a three-day evidentiary hearing in the Mississippi trial court during which proceeding probable cause was fully established. Similarly, in People ex rel. Kubala v. Woods, supra, there were factual affidavits made before a notary public which, if believed, supplied ample probable cause. The one case which fails to follow Kirkland, and where there appears to be no showing of probable cause, is Bailey v. State, 260 Ind. 448, 296 N.E.2d 422 (1973). We do not choose to follow Bailey.
We find the rationale of Kirkland and Ierardi, supra, persuasive, and conclude that Fourth Amendment standards apply in extradition proceedings, and that a person is not “charged” or “substantially charged” by the filing of a complaint or affidavit which does not provide sufficient information to enable a “neutral and detached magistrate” to make an independent determination of probable cause. This holding places no burden on the demanding state which it does not already have under the Fourth and Fourteenth Amendments. We should point out that our ruling in this case applies only to warrants issued upon informations, affidavits or complaints; when warrants are issued upon indictments, a finding of probable cause has already been made by the grand jury which returned the indictment.
The record in McCullough v. Darr, 219 Kan. 477, 548 P.2d 1245 (1976), discloses that the prosecutions there were commenced by the filing of an information, supported by a detailed affidavit. The question of probable cause was not raised, perhaps because of the adequacy of the latter document. We there held that the Governor’s warrant creates a prima facie case for the state, and that “[s]o long as the charge made against one whose-extradition is sought legally constitutes a crime, technical defects in the extradition papers cannot prevent extradition.” (p. 481.)
McCullough is distinguishable upon the facts. Further, we do not regard the total absence of any record showing of probable cause as a “technical” or inconsequential defect in the extradition papers, for probable cause is constitutionally mandated. The documents here before us do not disclose any facts upon which a probable cause finding could have been made. The prima facie case made by a Governor’s warrant is overcome where, as here, the documents supporting the Governor’s warrant do not “substantially charge” the defendant with a crime. A person is not “substantially charged” by the filing of documents which do not comport with Fourth Amendment standards.
Our holding herein, however, does not require the immediate issuance of the writ, or the discharge of petitioner. Like many of the courts following the Kirkland rationale, we conclude that the demanding state, Idaho, should be granted a reasonable time within which to demonstrate that it in fact had probable cause at the time the arrest warrant was issued. We conclude that thirty days is a reasonable period within which to make such a showing.
The judgment dissolving the writ of habeas corpus is reversed and the case is remanded to the district court, with directions to discharge the petitioner, Robert H. Wilbanks, unless within thirty days from the date of this opinion the respondent makes a showing of probable cause in accordance with this opinion. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by defendants Jerry Wayne Smith and Carol J. Miller from a jury verdict finding them guilty of aggravated robbery (K.S.A. 21-3427), aggravated kidnapping (K.SA. 21-3421), and three counts of kidnapping (K.S.A. 21-3420). These convictions resulted from defendants’ acts during a robbery of the Fourth National Bank in Wichita.
On January 6, 1975, Isaac Linder was making routine early morning rounds at the Fourth National Bank in Wichita when he was accosted by two men, hit on the head with a pistol, and his
gun, flashlight and keys were taken. He was forced into the bank where his hands were tied behind him with wire and his face was covered. The assailants were wearing ski masks and gloves. One of the assailants was wearing a black hat with white trim, plaid pants, and tennis shoes.
During the next few minutes other employees arrived — Robert Marts, Margaret Sanchez and Etta Bloomcamp. They were forced to go to the basement where they were bound with wire. Each had his or her head covered to prevent sight. The contents of the night depository were taken. The victims did not see the two men at work, but they heard the contents of the night depository being removed.
The victims freed themselves and police were summoned. The defendants apparently escaped in a maroon pickup truck with a white cab-over camper that belonged to Linder. The truck was later found three blocks from the bank.
About 7:15 that morning, Trooper David McGlasson of the Kansas Highway Patrol stopped to assist two black men changing a tire on a black over tan Cadillac with Oklahoma tags. He later identified the clothing the men were wearing as matching the clothing description given by the victims and by the officers who arrested the men. The trooper asked their names, whether they had been in Wichita the previous night, and where they had entered the turnpike. They told him they had entered the turnpike at Kansas City. While driving down the turnpike after his conversation with the men, the trooper recalled that the back window of the Cadillac was frosted over. He knew the window would have been defrosted if the men had driven from Kansas City, so he radioed the Wellington exit, gave a description of the car, and asked the attendant to check the turnpike ticket and advise him where the car had entered the turnpike. Fifteen minutes later the attendant informed him the two men had entered at the South Wichita toll gate. This information was relayed to the police dispatcher and subsequently broadcast by various other dispatchers, along with a description of the vehicle and the clothing worn by the two men. Sheriff’s officer Gary Sinclair of Newkirk, Oklahoma, and Trooper Roger Sixkiller of the Oklahoma Highway Patrol received these broadcasts and stopped the two men near Tonkawa, Oklahoma, at approximately 8:20 a.m. on January 6, 1975. The suspects were placed under arrest. Trooper Sixkiller had not received a description of the two men; his reports stated only that there were three men, not two, that they were black, and the reports also stated the license tag number and color of the car. The officers made a cursory search of the vehicle for concealed weapons and a pat-down search of the two men.
Defendants were advised of their Miranda rights by Pete Litton, Tonkawa Chief of Police, at the scene of their arrest. They were then taken to the Tonkawa Police Department by Trooper Sixkiller, and the Wichita Police Department was notified of the arrest. Officer Sinclair then went to Newkirk, Oklahoma, where he applied for and obtained a search warrant to search the vehicle.
No evidence was taken prior to securing the search warrant. When Sinclair returned to the Tonkawa Police Department with the search warrant, defendant Smith was asked to empty his jacket pockets. Among the contents were several checks that had been marked for deposit with the Fourth National Bank in Wichita. Defendants were placed in jail and booked. Subsequently, their car was searched and zippered money bags belonging to the bank were found in the trunk. In addition, the officers found several personal items which had been taken from Linder at the scene of the crime, including his glasses, personal papers, and a piece of wire matching the wire used to tie up the bank employees.
Each of the defendants was found guilty on the charges of aggravated robbery, aggravated kidnapping, and three counts of kidnapping. Defendants appeal.
I. Sufficiency of Evidence
Defendants’ first issue on appeal goes to the sufficiency of the evidence and whether the state failed in its burden to properly identify them. Defendants contend that because the bank employees’ heads were covered they could not make a positive identification, and that identifications made were based upon general build and eyes. In addition, Trooper McGlasson, after stopping to aid defendants in changing their tire, was unable to make a positive identification.
In State v. Wade, 203 Kan. 811, 813-14, 457 P.2d 158 (1969), this court stated:
“Where the sufficiency of evidence is being reviewed, this court’s function is limited to ascertaining whether there was a basis in the evidence for.a reasonable inference of guilt. [Citations omitted.] Our law recognizes the jury is the exclusive judge of all material questions of fact and is entitled to draw reasonable inferences from the evidence. (State v. Greenwood, 197 Kan. 676, 421 P.2d 24.) If the evidence tends to disclose the offenses charged were committed, and the defendant committed them, the question is for the jury to decide, even though the evidence is weak. (State v. Townsend, 201 Kan. 122, 439 P.2d 70; State v. Dill, 182 Kan. 174, 319 P.2d 172.)”
In the present case, although the bank employees had articles of clothing over their heads to prevent them from seeing defendants, some of them were able to catch a glimpse of various items of apparel worn by each of the defendants. The security guard at the bank testified as to the plaid slacks and black hat worn by one of the men. These items of clothing were later identified by Trooper McGlasson as having been worn by one of the men changing the tire on the turnpike. At trial McGlasson identified a folder filled with identification cards and operators’ licenses as the one produced by defendant Smith upon his request for driver’s identification on the turnpike. A bank employee, Robert Marts, made a positive in-court identification of one of the defendants based upon his height, his eyes, and his general build. Several of Linder’s personal belongings, along with items identified as property of the bank, were found in the trunk of the car. Several checks marked for deposit at the bank were found on the person of defendant Smith.
The bank employees were unable to make a positive identification of defendants at the lineup, but the evidence, although circumstantial, appears sufficient to place defendants at the scene of the crime. Circumstantial evidence can be used to prove any element of a crime. State v. Johnson, 220 Kan. 720, 722, 556 P.2d 168 (1976). We believe there was a basis in the evidence for the jury to determine a reasonable inference of guilt.
II. Probable Cause and Illegal Search
Defendants contend the trial court erred in admitting evidence seized as a result of an arrest without probable cause and from an illegal search and seizure. K.S.A. 22-2401 sets forth the conditions under which a law enforcement officer may make an arrest.
We have considered the issue of probable cause in several recent cases. In State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), we stated:
“Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U.S. 132, 162, 69 L.Ed. 543, 45 S.Ct. 280 [1925].)”
In State v. Evans, 219 Kan. 515, 521, 548 P.2d 772 (1976), we said:
“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. . . .”
In State v. Barnes, 220 Kan. 25, 28, 551 P.2d 815 (1976), we held as follows:
“It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the evidence leads the officer to believe that guilt is more than a mere possibility. (State v. Curtis, 217 Kan. 717, 538 P.2d 1383.)”
Based upon testimony regarding the dispatch reports received by both Officer Sinclair and Trooper Sixkiller, which contained a description of the car, the license tag number, details of the robbery, and a description of the clothing worn by the two men, we believe there was sufficient probable cause to arrest defendants. We are not prevented from making this finding because varying reports were received regarding the number of men believed to have robbed the bank or because Trooper Sixkiller did not receive the same information regarding defendants’ clothing as that which was received by Officer Sinclair. We have stated it is not necessary that all the facts in a dispatch report be within the personal knowledge of the arresting officer. State v. Buckner, 223 Kan. 138, 142, 574 P.2d 918 (1977); State v. Clark, 218 Kan. 726, Syl. ¶ 2, 544 P.2d 1372 (1976). Defendants’ allegation of lack of probable cause is without merit.
We turn to the sufficiency of the affidavit for the. search warrant. Defendants contend Officer Sinclair was not in possession of sufficient information to obtain a proper search warrant at the time the vehicle was stopped. We have carefully examined the statutes and case law of the State of Oklahoma, as well as copies of the affidavit and the search warrant. The facts contained in the affidavit are more than sufficient to support the issuance of a proper search warrant, notwithstanding the fact Officer Sinclair’s oral statements before the Oklahoma court were not recorded. See 22 Okla. Stat. Ann. § 1223; Looney v. State, 520 P.2d 814 (Okla. Crim. 1974).
III. Admission of Federal Court Transcript
Defendants next argue it was error to admit and consider the transcript of a suppression hearing held before the United States District Court for the District of Kansas, thus tainting the suppression hearing and denying the defendants’ right to due process of law.
It would appear defendants are correct in their contention that it was error to admit the former testimony. K.S.A. 60-460(c)(2) requires unavailability of the declarant and the situation at bar does not indicate the witnesses were unavailable to testify at trial. In fact, each was present and was called by defense counsel to be cross-examined. We hold it was error for the trial court to allow the testimony to be admitted; however, we cannot s.ay defendants were denied their right to due process. No prejudicial error was shown.
IV. Incidental Crimes and Duplicity
Defendants argue the facts giving rise to the charge of kidnapping and aggravated kidnapping were also incident to the charge of aggravated robbery and are duplicitous of such other charge, and were not separate and distinct offenses under all facts and circumstances of the crimes.
We have construed K.S.A. 21-3420, pertaining to kidnapping, to require no particular distance of removal, nor any particular time or place of confinement. State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976). One of the four objectives enumerated in the statute must be satisfied. We are concerned here with the second objective, that of facilitating flight or the commission of any crime. We have discussed the difference between a taking which is facilitating the commission of a crime and a taking which is merely incidental to the main crime:
“We therefore hold that if 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.” State v. Buggs, 219 Kan. at 216.
In the present case the actions of defendants in forcing the bank employees into the basement were clearly intended to facilitate flight and aid in the commission of a crime, pursuant to K.S.A. 21-3420(b). Applying the tests enumerated above, when the taking or confinement is alleged to have been done to facilitate the commission of another crime, defendants’ contentions must fail.
One of the victims, Linder, was accosted by defendants while making his early morning rounds outside the bank. He was struck on the head with a pistol, his gun and keys were taken, and he was forced into the basement of the bank where he was tied up. The taking and subsequent confinement of Linder was neither slight nor inconsequential. The act of deliberately moving him from the exterior to the interior of the bank, coupled with the bodily harm done to his person, was clearly designed to facilitate commission of the crime of bank robbery and cannot be considered “slight, inconsequential and merely incidental to the other crime.” The taking and confining of the other three bank employees was equally important to the facilitation of the crime. The employees were bound and confined in the basement in order to more easily reach the contents of the night depository and to substantially lessen possible detection of the crime. Defendants’ reliance on the California cases of People v. Daniels, 71 Cal. 2d 1119, 80 Cal. Rptr. 897, 459 P.2d 225 (1969); People v. Williams, 2 Cal. 3d 894, 88 Cal. Rptr. 208, 471 P.2d 1008 (1970), cert. denied 401 U.S. 919, 27 L.Ed.2d 821, 91 S.Ct. 903 (1971); and People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. denied 381 U.S. 938, 14 L.Ed.2d 701, 85 S.Ct. 1770 (1965), is misplaced. These cases were distinguished in Buggs.
Defendants contend the facts giving rise to the charges of kidnapping and aggravated kidnapping are duplicitous to the charge of aggravated robbery and are not separate and distinct offenses.
Duplicity is defined as “the joining in a single count of two or more distinct and separate offenses.” 1 Wright, Federal Practice and Procedure: Criminal § 142 at 306 (1969). See also State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). In the case at hand each count in the information contained only one offense. Defendants’ argument is without merit.
V. Double Jeopardy
Defendants contend they were subjected to double jeopardy as the charges against them in the information and as prosecuted during the trial are based on the same facts and circumstances of a previous prosecution and conviction in the United States District Court for the District of Kansas.
The question of double jeopardy was recently discussed in State v. Dolack, 216 Kan. 622, 533 P.2d 1282 (1975), in which this court quoted with approval the language of the court in North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969), pertaining to the double jeopardy clause found in the Fifth Amendment to the United States Constitution, enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969); State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973); Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973). See also Kan. Const. Bill of Rights, § 10.
In North Carolina, the court stated that the guarantee against double jeopardy protects against a second prosecution for the same offense after acquittal, protects against a second prosecution for the same offense after conviction, and protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. at 717; State v. Dolack, 216 Kan. at 631.
The thrust of defendants’ argument appears to lie in the belief that they should not be tried for both state and federal charges arising from the same acts of violence. In K.S.A. 21-3108 (now 1977 Supp.), pertinent sections dealing with the issue of former prosecution are set forth:
“(3) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States ... for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:
“(a) Resulted in ... a conviction . . . and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . . ,”
Defendants were convicted of the crime of bank robbery in the United States District Court, and of aggravated robbery, aggravated kidnapping, and three counts of kidnapping in the state court. Defendants contend the same element of force and violence was used to convict them of both the federal and state charges.
It is well settled that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which is not required by the other. Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 (1932). See also Brown v. Ohio, 432 U.S. 161, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977); State v. Worth, 217 Kan. 393, 537 P.2d 191 (1975), cert. denied 423 U.S. 1057, 46 L.Ed.2d 647, 96 S.Ct. 792 (1976); State v. Pruitt, 216 Kan. 103, 531 P.2d 860 (1975).
Applying this test to the facts at hand, we must find that the elements of proof necessary for both convictions are different. The federal charge of bank robbery requires proof that the bank in question has some federal connection; i.e., it was insured by the Federal Deposit Insurance Corporation; whereas, the state charges of aggravated robbery, aggravated kidnapping, and kidnapping require elements of proof having nothing to do with the federal crime of bank robbery. It must also be noted that the acts giving rise to the state charges were different from those triggering the federal indictment. The act of robbing the Fourth National Bank was not the same act as the aggravated robbery of Linder. Both acts took place at different times, although they were done in the course of the bank robbery.
We find defendants were not subjected to double jeopardy.
VI. Speedy Trial
Defendants contend the state’s lack of diligence resulted in denial of their right to a speedy trial. Their allegation is directed to the time lapse between the arrest and the moment they were transported from the El Reno Reformatory in El Reno, Oklahoma, to the Sedgwick County jail in Wichita, Kansas, to face state charges. Federal charges were leveled against defendants on January 6, 1975, and they were arraigned before a federal judge the following day. Jury trial in federal court lasted from February 5 to February 10,1975, at which time they were returned to the El Reno Reformatory to await sentencing which took place on April 7,1975. The record indicates a detainer dated May 5 was filed by the Kansas prosecutor’s office and received by the warden at El Reno on May 21. Defendants were notified of its existence about June 1. On June 26, defendant Smith wrote to the clerk of the court of common pleas for a statement of charges against him and also filed a motion for a speedy trial. The letter was forwarded to the district attorney, but defendant received no response. Defendant Miller requested a speedy trial also, although the exact date of the request cannot be determined from the record. De fendants claim their attorneys at the federal level checked with state authorities in January, but could discover no state charges pending against defendants.
On August 8, defendants were taken from the El Reno Reformatory to the Sedgwick County jail and were arraigned a short time later. The state proceedings continued rapidly from this date, and after numerous and lengthy pretrial motions the case went to trial on November 17, a verdict of guilty was rendered on November 25, and defendants were sentenced on December 12, 1975. There is a dispute as to whether, state charges were issued on January 10, 1975, against defendants. The complaint is dated January 10, but was not filed until September 3. The state claims it was waiting to file charges until the trial in federal court had ended. Defendants allege substantial prejudice resulted from the delay in filing state charges because of the erasure of police dispatch tapes relating to the bank robbery and because their college education courses at El Reno were interrupted by the late action of the state.
We addressed the issue of speedy trial in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). See also State v. Clark, 222 Kan. 65, 563 P.2d 1028 (1977); State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975); State v. Dolack, 216 Kan. at 622; State v. Smith, 215 Kan. 34, 523 P.2d 691 (1974); State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972). The case of Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), provided a balancing test in which the conduct of both prosecution and accused is to be weighed. We adopted this test in State v. Otero, 210 Kan. at 532-33. Barker identifies four factors to be considered when determining whether the accused has been denied a speedy trial. They are: (1) Length of the delay, (2) reason for the delay, (3) the defendant’s assertion of his rights, and (4) prejudice resulting to the defendant. In Barker, the court stated:
“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” (p. 533.)
Applying the criteria set forth in Barker, we must find defend ants were not deprived of a speedy trial. In considering the length of the delay, we will discuss only the time span from arrest to the moment defendants were notified of the state charges pending against them, since the heart of defendants’ complaint goes to the alleged prejudice that resulted from their lack of knowledge of the state charges. This encompasses merely five months during which time the federal court trial and sentencing took place, although the fact federal proceedings were pending did not preclude the state from filing its charges.
The record does not indicate the delay was due to a deliberate attempt on the part of the state to undermine defendants’ theory of defense, and we do not find that undue prejudice resulted from the delay. As the trial court noted, there was great speculation as to the importance and usefulness of the erased dispatch tapes. We do not believe the psychological stress and anxiety defendants allege they have suffered is the type contemplated in the cases of State v. Otero, 210 Kan. at 535, and United States v. Mann, 291 F. Supp. 268 (S.D.N.Y. 1968). Those cases dealt with delays amounting to many years, rather than a few months. In the present case we find defendants were not denied a speedy trial.
VII. Severance
Defendant Smith alleges the trial court erred in refusing to grant his motion for severance from the trial of defendant Miller, who was identified as being at the scene of the crime. Smith contends because the bank employees were unable to make a positive identification of him as being at the crime scene, he was unduly prejudiced by the presence of defendant Miller throughout the trial.
The statute governing joinder of two or more defendants for trial is K.S.A. 22-3202(3) (now 1977 Supp.), which allows joinder if the defendants are “alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes.” This court has repeatedly stated that the granting of separate trials lies within the sound discretion of the trial court and, absent an abuse of the exercise of the power of discretion, its action will not be set aside on appeal. State v. Watie, Heard and Heard, 223 Kan. 337, 342, 574 P.2d 1368 (1978); State v. Duvaul, 223 Kan. 718, 576 P.2d 653 (1978); State v. Jackson, 223 Kan. 554; 575 P.2d 536 (1978); State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977); State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977).
In the present case the two defendants were charged with basically the same crimes arising out of the same transactions. The record does not indicate defendant Smith’s theory of defense was antagonistic to that of his codefendant. Both defendants objected to the evidence which placed them at the crime scene, but neither asserted a defense or bolstered it with evidence that would have shown antagonistic theories. A bald assertion of prejudice resulting from refusal to grant a motion for a separate trial without supporting facts is not sufficient to show an abuse of discretion by the trial court. Defendants’ argument must fail.
VIII. Effective Assistance of Counsel
Defendant Miller alleges error in the trial court’s refusing to grant his motion for severance by requiring him to stand trial with defendant Smith, who appeared pro se, thus inhibiting defendant Miller’s right to effective assistance of counsel. This contention is without merit. Defendant Miller was properly represented by William A. Wells, who was appointed by the trial court at the commencement of proceedings against Miller. Defendant Smith, while appearing in his own behalf, was aided by Clyde Wendelken, who appeared as co-counsel. Defendant Miller has failed to show how his case was prejudiced by Smith’s pro se appearance and, absent a clear showing of prejudice, the trial court’s ruling must stand.
IX. Instruction No. 8
Defendants contend the trial court erred in failing to adopt their requested jury Instruction No. 8. The instruction states:
“In order to find the defendants or either of them guilty of aggravated kidnapping, you must find beyond a reasonable doubt that bodily harm was inflicted by the alleged kidnapper after the act of kidnapping.”
Defendants believe the facts giving rise to the charge of aggravated robbery occurred when Linder was confronted by two men with drawn guns, who relieved him of his gun and keys. Defendants state the facts show that after Linder attempted to call for help he was hit on the side of the head with a gun and was taken into the bank where his hands and feet were bound. The question on appeal is predicated on defendants’ belief there must have been a second act of violence occurring during the actual asportation of Linder into the bank to give rise to the charge of aggravated kidnapping.
K.S.A. 21-3421 defines aggravated kidnapping as “kidnapping, as defined in 21-3420, when bodily harm is inflicted upon the person kidnapped.” The statute does not require that the bodily harm occur before or after the actual kidnapping. The act of violence must occur in the course of the kidnapping and must coincide with at least one of the four objectives listed in 21-3420. It is clear Linder was struck on the head and forced into the bank to facilitate commission of the later crime of bank robbery. We find no error by the trial court in failing to adopt defendants’ Instruction No. 8.
X. Instructions Nos. 2 and 3
Defendants contend the trial court erred in submitting Instructions Nos. 2 and 3 to the jury. These instructions relate to the elements which must be proven to find both defendants guilty of the crimes of aggravated kidnapping and kidnapping. Defendants’ argument is based upon their earlier allegation that both crimes were merely incidental to the offenses of aggravated robbery and bank robbery. In light of our earlier discussion to the contrary, we find this point to be without merit.
XI. Failure to Poll Jury
Defendants argue the trial court erred in refusing counsel’s request to poll the jury after return of its verdict and before discharge as to the effect, if any, of certain publicity which appeared in the local newspaper during the final stages of trial. The article does not appear in the record. In State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976), we set forth the guidelines to be followed by counsel in order to prove that members of the jury were aware of a newspaper article prejudicial to defendant. We stated that counsel for a defendant may request a poll of the jury after its verdict is returned, or counsel may subpoena the jurors on motion for a new trial to show they had knowledge of the article.
Inasmuch as the article in question is not before us, we cannot assume the trial court abused its discretion in finding the publicity to be “minimal” and in refusing to question the jury as to the effect of the publicity. Further, we note defense counsel did not avail themselves of the alternative to polling the jury, that of issuing a subpoena to each juror on motion for a new trial to show possible knowledge of the article.
Under the circumstances, we hold there has been no showing defendants were deprived of a fair trial because of failure of the trial court to permit a polling of the jury.
XII. Remarks of Prosecutor
Defendants’ final point on appeal alleges the trial court erred in overruling the defense motion for mistrial based upon remarks made by the prosecutor during closing argument. The remark in question was: “You have an overwhelming amount of evidence. One of the strongest cases I’ve ever had the luck to be a part of.”
The often stated general rule regarding improper questions or statements made by the prosecutor is that before an objectionable question or statement made by the prosecutor will entitle the accused to a reversal of his conviction it must first appear that it was injurious to him and was likely to affect the jurors to his prejudice. State v. King, 219 Kan. 508, 548 P.2d 803 (1976); State v. Kane, 218 Kan. 13, 542 P.2d 335 (1975); State v. Murrell, 215 Kan. 10, 523 P.2d 348 (1974); State v. Gauger, 200 Kan. 515, 438 P.2d 455 (1968). In Murrell and Kane, we also recognized that the trial judge is more clearly able to judge the impact of a prosecutor’s statement on the jury than are the members of this court.
Where the trial judge has pointed out the error to the jury regarding statements made by the prosecutor, we have also found no reversible error. State v. Kane, 218 Kan. at 16; State v. Johnson, 216 Kan. 445, 532 P.2d 1325 (1975); State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974). In the present case, the court, after proper objection from defense counsel, ruled that the prosecutor’s personal opinion would be stricken from the argument. In addition, the court had earlier instructed the jury that statements made by counsel were not to be considered as evidence.
Defendant has relied on the case of United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970), in which remarks of a similar nature were found to have been improper and an aid in the court’s finding of reversible error. There, the court stated:
“Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error. . . .” (p. 1069.)
The court noted that the issues were close and the government’s case was “not particularly strong.” The court felt the prosecutor’s remark, coupled with other improprieties, indicated the defendant had not received an impartial trial.
The present case against defendants is not based upon weak evidence and we find no errors that would indicate defendants did not receive a fair and impartial trial. We find the statement made by the prosecutor was not injurious to defendants and prejudice did not result which might constitute reversible error.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiff, Susan K. Zuther, from summary judgment entered against her and in favor of the defendants, Joyce and Alvin Schild, in an action for damages for personal injuries sustained by plaintiff in a fall at the home of defendants.
The issues are whether we should abandon the traditional classification of trespasser, licensee and invitee, and the corresponding duties owed to each; and whether plaintiff was an invitee or a licensee under the undisputed facts. As to the first issue, we considered discarding the classifications, and declined to do so, in Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978). We adhere to the conclusion so recently reached.
The facts, briefly, are these: the plaintiff and her daughter went to the Schild home in the afternoon of February 7, 1973, to attend a girl scout troop meeting. Plaintiff was a volunteer assistant leader; she received no monetary or other economic compensation for her services, nor was she reimbursed for her actual expenses. Her daughter was a member of the troop. Plaintiff knew that the streets and sidewalks were icy, and walking and driving conditions were extremely hazardous on the day in question. Plaintiff left hurriedly, slipped on the ice on the front porch, fell down the front steps, and sustained injury.
The trial court found that plaintiff was a licensee as a matter of law, and entered judgment for the defendants. We agree. In Weil v. Smith, 205 Kan. 339, 469 P.2d 428 (1970), Justice Fontron, speaking for a unanimous court, said:
“In many instances, if not, indeed, in most, it can be said that status of a visitor may be determined as a matter of law. For example, we have not hesitated to say that one who enters a retail store for the purpose of making a purchase therein is a business invitee. (Little v. Butner, 186 Kan. 75, 348 P.2d 1022; Marietta v. Springer, 193 Kan. 266, 392 P.2d 858.) On the other hand, we have been consistent in holding that one who makes a social visit, even by express invitation, is merely a social guest and does not come within the category of either a business or a public invitee. (Ralls v. Caliendo, 198 Kan. 84, 422 P.2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945.)
“There are however, situations where the line between social and business visitors may not be drawn so clearly; where the benefit to the landowner or the mutuality of interest and advantage to both invitor and invitee may not be so obvious or patent. Occasions may arise when the evidence, and the reasonable inferences to be drawn therefrom, may reasonably admit of more than one conclusion, and where such be the case, the matter is one of fact for submission to a jury — or to the court where it is acting as the trier of the facts. . . .” (p. 343.)
Here we think the facts lend themselves to but one conclusion: that plaintiff was a social guest.
As we have said many times, an invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both in viter and invitee. An occupier of land must exercise reasonable care for an invitee’s safety. The occupier must protect and warn the invitee of any danger which may be reasonably anticipated.
A licensee is one who enters by virtue of either express or implied consent of the possessor of the premises, but the benefit requirement is absent. A social guest has the status of a licensee. An occupier of land owes a licensee only a limited duty: to refrain from willfully or wantonly injuring the visitor.
An invitee is often referred to as a “business visitor.” The benefit necessary to convert a licensee to an invitee is ordinarily a business, economic, pecuniary or commercial benefit. Emotional or psychological benefit, such as one might gain when visiting or attending social gatherings in the home of friends, is not sufficient, else every licensee would become an invitee.
Under the facts at hand we hold that plaintiff was but a social guest, and therefore a licensee. Since no willful or wanton conduct resulting in injury is claimed, the trial court properly entered summary judgment.
The judgment is affirmed.
Owsley and Prager, JJ., concur in the result. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant Rodney LeRoy Phipps appeals from a conviction of first degree murder (K.S.A. 21-3401).
The record reveals that on November 23, 1977, defendant went to a residence in South Hutchinson, Kansas. Shortly after he arrived he became embroiled in a fight with the victim, Harlan Gail Calkins. The fight started in the front room of the house, continued into the dining room, and culminated in the bathroom. When defendant emerged from the bathroom he went to the back bedroom to talk to his sister-in-law. Shortly thereafter he left the bedroom, kicked in the bathroom door, and continued beating and kicking Calkins. Defendant emerged from the bathroom again with blood on his boots. At defendant’s insistence the other occupants entered the bathroom. Calkins was lying on his back on the floor, obviously injured. Blood was spattered on the floor, walls and ceiling of the room.
Defendant ordered that no one call an ambulance. He left and returned to the house twice. He finally loaded Calkins into the family car and Calkins’ wife took her husband to the hospital where he was pronounced dead on arrival. Before he left the house on the last occasion defendant told his mother-in-law and his sister-in-law not to tell the police what had happened because he would get into trouble. When they were questioned by the police they originally lied, but later told police about the fight.
At trial it was revealed that there were continuous problems between defendant and the deceased. The deceased had felt the defendant was running the family and disapproved. On the afternoon of the crime defendant was quoted as saying, “I’m going to get that hunchback son-of-a-bitch,” referring to Calkins.
Dr. Hans Lettner, county coroner, testified that death was caused by aspiration of blood into the lungs, which resulted from a massive blow to the anterior part of the skull. In his opinion the configuration of the weapon used to deliver the blow corresponded to the shape of defendant’s boots. The boots were analyzed by the KBI laboratory and found to be covered with human blood.
Defendant’s first point on appeal concerns the admission of two groups of photographs. The first group contained fourteen black and white photographs of the deceased as he appeared when taken to the hospital. The second group consisted of six color photographs of the deceased showing the injuries to his head and showing the cuts and bruises inflicted by defendant. The point has no merit as defendant failed to object to the admission of the photographs at trial. Our long-standing rule is that failure to lodge a contemporaneous objection to the admission of evidence prohibits a defendant from complaining about the admission of that evidence on review. See, K.S.A. 60-404 and the many cases cited in the annotation following the statute. Defendant argues we should adopt a rule that the trial court should exclude evidence sua sponte. The requirement that a contemporaneous objection be made was upheld in State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), and we adhere to that ruling.
Notwithstanding the failure to object, this court has repeatedly held that the admission of photographs of a decedent is not error when they are relevant to matters in issue such as the cause and manner of death and an aid in the understanding of a pathologist’s testimony. (State v. Childers, 222 Kan. 32, 44, 563 P.2d 999 [1977]; State v. Henson, 221 Kan. 635, 646, 562 P.2d 51 [1977]; State v. Villa & Villa, 221 Kan. 653, 654, 561 P.2d 428 [1977].) The photographs were relevant to the issues of the case. They were used by the pathologist to explain the cause of death. They further show the violent and brutal nature of the attack by defendant and rebut defendant’s assertion that the affray was only minor. They were relevant to establish that the murder was premeditated and not accidental. There was no error in the admission of the photographs.
Defendant’s second point concerns the admission of statements of the deceased through the deceased’s sister. Defendant contends they are hearsay and not admissible through any of the statutory exceptions. The state takes the position that the statements are admissible under K.S.A. 60-460(d)(3).
We have read the statements and find 60-460 does not apply because the statements are not hearsay. Hearsay evidence is “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.” (K.S.A. 60-460.) The statements made by the deceased prior to his death reflected that he felt defendant was running his family life. No one was trying to prove this was true; the statements were introduced solely to show the deceased’s state of mind before his death and to demonstrate to the jury the rift between defendant and the deceased. Under the circumstances the statements were admissible independent of the exceptions contained in K.S.A. 60-460. (See, State v. James, 223 Kan. 107, 574 P.2d 181 [1977]; State v. Hall, 220 Kan. 712, 556 P.2d 413 [1976]; State v. Crowley, 220 Kan. 532, 552 P.2d 971 [1976]; State v. Ralls, 216 Kan. 692, 533 P.2d 1294 [1975].)
The third point on appeal concerns the introduction of rebuttal evidence. The state introduced the evidence after defendant took the stand and told the jury that Calkins, not he, started the fight which led to Calkins’ death. He stated the fight was very minor and could not have caused the death. Sherry Hammond, twelve years old, testified that defendant came into the house, ordered her mother, two sisters and brother into the bedroom, and then started hitting her stepfather. At one point she looked out the bedroom door and saw defendant step on her stepfather’s stomach and beat his head on the floor. She heard her stepfather get up, run into the bathroom and close the door. Defendant pursued him and continued the fight. A short time later defendant came into the bedroom and talked to Sherry’s sister. Defendant then went back to the bathroom, broke down the door and continued hitting Calkins. When defendant again returned to the bedroom he had blood on his hands and boots. At that point he advised the occupants of the bedroom that they could come out of the room. Later, defendant loaded Calkins into the family car.
Defendant contends it was an abuse of discretion to allow Sherry Hammond’s testimony to be introduced. It is well established that rebuttal evidence is that which is used to deny some fact an adverse party has attempted to disprove or has placed in dispute. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice. (See, State v. Burnett, 221 Kan. 40, 43, 558 P.2d 1087 [1976], and authorities cited therein.)
It was not an abuse of discretion to allow the rebuttal evidence. While it was evidence which might have been introduced in the case in chief, it was not improper to use the évidence in rebuttal. The testimony clearly contradicted defendant’s story that Calkins was the aggressor, that the fight was short, and that it could not have been severe enough to cause Calkins’ death.
As a fourth point defendant alleges specific instances of prosecutorial misconduct. First, defendant alleges the prosecutor pre judiced the jury by admitting defendant’s boots into evidence too quickly. We see no merit to this argument as the boots were admissible. Secondly, defendant argues the prosecutor prejudiced the jury by describing the acts of defendant as “stomping” the victim. This word was originally injected into the trial by a KRI witness to describe the blood spatters on the boots; therefore, it was not improper in closing argument. Furthermore, the prosecutor’s argument was never objected to by defense counsel. Finally, defendant objects to the prosecutor’s reference to his past criminal record. This, too, was never objected to at trial and is now beyond review.
As defendant’s final point he attacks the sufficiency of the evidence on the issue of premeditation. The record reflects the state’s evidence included a witness who testified defendant was going to “get” the deceased. There was extensive evidence that the deceased and defendant had been having disagreements and this led to the fight on the fateful night. Some of the evidence indicates defendant left his victim in the bathroom, then returned, broke down the door, and continued to beat the victim as he lay on the floor. Under all the facts and circumstances a jury could reasonably have drawn an inference of premeditation to establish first degree murder. (See, State v. Buie, 223 Kan. 594, 575 P.2d 555 [1978]; State v. Martinez, 223 Kan. 536, 575 P.2d 30 [1978].)
We have reviewed each of the errors presented by defendant and find them without merit.
Under the new rules of appellate procedure effective January 10, 1977, any references to facts contained in the record are to be keyed to the record on appeal “so as to make verification reasonably convenient.” See, Rule No. 6.02(d), Rules of the Supreme Court, 220 Kan. xxxix. Counsel in this appeal were lax in complying with this rule. Members of the bar should take note or it may become necessary to impose sanctions in the future.
The judgment of the trial court is affirmed. | [
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Per Curiam:
This is a direct appeal in a criminal action in which defendant-appellant was convicted after a jury trial of four counts of first degree murder (K.S.A. 21-3401), one count of aggravated kidnapping (K.S.A. 21-3421), one count of aggravated burglary (K.S.A. 21-3716) and one count of unlawful possession of a firearm (K.S.A. 21-4204).
This is a companion case to State v. Duvaul, 223 Kan. 718, 576 P.2d 653 (1978). Most of the facts are set forth in Duvaul and will not be repeated herein. Such additional facts as are necessary to this appeal will be included in the opinion under the respective points.
The defendant first claims error by the trial court in refusing to grant separate trials. Both Duvaul and Bell testified at the trial. This issue was considered and disposed of in Duvaul, supra.
The defendant next claims error in refusal of the trial court to change the venue on the Beth Kuschnereit murder count to Butler County. The evidence of the state sought to establish her kidnapping (Count 5) occurred in Sedgwick County. It was undisputed that she was killed in Butler County. This issue was adequately determined in Duvaul, supra.
The defendant next contends error was committed in admitting the testimony of Duvaul, Gary Ted Ames, and Harold Norman. Duvaul testified both as a witness for himself and for Bell. The Bruton argument raised by defendant is without merit. Gary Ted Ames testified as to conversations had with Duvaul while both were in the Sedgwick County jail. This testimony includes Duvaul’s version of the crimes. It is consistent with and supports Bell’s testimony at trial except in the areas of Duvaul’s fear of Bell and pressure by Bell on Duvaul, neither of which is relevant to Bell’s guilt or innocence. Harold Norman was a police detective who testified as to statements made by Duvaul to a Tom Bowin. Bell was not mentioned in the statement and has no standing to object thereto (see State v. Smallwood, 223 Kan. 320, 574 P.2d 1361 [1978]).
At the close of the. state’s evidence Counts 5 and 6 were amended by adding the italicized phrases:
Count 5
“In the County of Sedgwick and State of Kansas, and on or about the 7th day of July, A.D., 1974, one James E. Bell and Gary Duvaul did then and there unlawfully, willfully, by force, threat and deception, take and confine another, to-wit: Elizabeth Ann Kuschnereit, to facilitate the commission of the crime of First Degree Murder as defined by K.S.A. 21-3401 and to inflict bodily harm on and to terrorize the victim, to-wit: Elizabeth Ann Kuschnereit, and did inflict bodily harm upon the person of the said Elizabeth Ann Kuschnereit.”
Count 6
“[D]id then and there unlawfully, willfully and without authority and with intent to commit a felony, to-wit: Aggravated Robbery as defined by K.S.A. 21-3427 and Aggravated Battery as defined by K.S.A. 21-3414 and First Degree Murder as defined by K.S.A. 21-3401, enter into and remain within a building, to-wit: a residence at 1117 Dayton, Wichita, Sedgwick County, Kansas, occupied at the time by James Waltrip, Oma Ray King, Jr., and Patricia A. Gindlesberger.”
K.S.A. 22-3201(4) (now 1977 Supp.) provides:
“The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The amendments did not change the crime charged and there was evidence to support the amendments. The substantial rights of the defendant were not prejudiced thereby.
The defendant claims error by the trial court in denying his motion for acquittal on Counts 5, 6, and 7 at the close of the state’s case. The test to be applied is set forth in State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978), wherein we cited State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), as follows:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (223 Kan. at 346.)
The evidence was sufficient to pass the test.
The defendant next claims error in the admission of testimony of Bell’s activities a week before the killings. The evidence was admitted to show Bell had a .38 caliber pistol at that time which was similar to the gun used in the killings. The court excluded testimony of Bell’s criminal activities occurring at the time he was seen with the gun, and permitted testimony only to the effect he was seen with such a gun. No gun was ever recovered. The defendant subsequently testified he had used a .38 caliber pistol in the killings. The defendant contends the purpose of the testimony was to inflame the jury. It is difficult to see how the jury could have been inflamed by the testimony. This is particularly true since the defendant testified he carried such a gun; that he went into the home where three of the killings occurred with the gun cocked; that he shot James Waltrip, Oma Ray King, and Patricia Gindlesberger; that he shot Beth Kuschnereit (“blew her head off”) after allowing her time to pray; and that every shot was deliberate. The point is held to be without merit.
The defendant next claims error in the giving of Instruction Nos. 13 and 27. Number 13 is the instruction on aggravated burglary. The defendant claims there was insufficient evidence to permit the instruction. No state witness could testify directly as to whether Bell had authority to enter the residence as the three occupants were shot and killed by Bell. Bell testified he yanked open the back door and ran in with his gun cocked. Bell did not testify he had authority to enter. There was sufficient evidence to support the instruction.
The defendant claims Instruction No. 27 does not correctly state the law. The instruction covers the area of inferring premeditation and deliberation. All points raised by the instruction were determined by this court in State v. Buie, 223 Kan. 594, 575 P.2d 555 (1978). In Buie a cab driver was shot with no witnesses present. We held there was sufficient evidence from which premeditation and deliberation could be inferred. We said:
“The defendant’s first point on the appeal is that the trial court erred in overruling the defendant’s motion for acquittal on the grounds that there was insufficient evidence to support a conviction of first-degree murder. The defendant concedes that malice may be inferred from the fact that a deadly weapon was used in the homicide. (State v. Hamilton, 216 Kan. 559, 534 P.2d 226.) It is defendant’s position that there was no evidence of premeditation or deliberation sufficient to sustain a verdict of murder in the first degree. . . .
“Proof of premeditation as an element in first-degree murder was considered by this court in two recent cases. (State v. Henson, 221 Kan. 635, 562 P.2d 51; State v. Hamilton, supra.) Those two cases hold that the element of premeditation, essential to first degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, such as lack of provocation, the defendant’s conduct before and after the killing or the dealing of lethal blows after the deceased was rendered helpless, the evidence may be sufficient to support an inference of deliberation and premeditation. Our problem in this case is to determine whether the evidence in the record before us is sufficient to establish a deliberate and premeditated killing. In a prosecution for murder the law does not presume or imply the existence of premeditation and deliberation from any state of circumstances, but it is not necessary that they be established directly. Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such case, the jury has the right to make the inference. (Craft v. State, 3 Kan. 450.)” (p. 597.)
The established circumstances were sufficient to support the giving of the instruction.
The defendant further claims error in the failure to give limiting instructions on the testimony of certain witnesses. K.S.A. 22-3414(3) states in part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. . . .”
The defendant does not claim he requested such instructions and the state denies that he did. The failure to give limiting instructions was not clearly erroneous.
The defendant’s final claim of error is the refusal of the trial court to grant his motion for a new trial. The points raised here are those previously considered and determined in this opinion. The only new argument raised is that Bell’s confession on the stand should not be considered to have cured earlier trial errors.
The granting of a new trial is a matter of discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of discretion. A new trial in a criminal case may be granted on motion of a defendant when required in the interest of justice, and such grant in the first instance lies within the sound discretion of the trial court (State v. Parker, 213 Kan. 229, Syl. 4, 516 P.2d 153 [1973]).
No abuse of discretion is shown.
All points on appeal having been considered and determined, the judgment and convictions are affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an original action in mandamus in which the petitioner, Garden City Educators’ Association (Association), seeks to compel the respondent, the Honorable Bert J. Vance, to order that impásse resolution procedures between the Association and the Board of Education (Board), be commenced pursuant to K.S.A. 1977 Supp. 72-5426. Judge Vance found these procedures could not be implemented in time to meet the mandatory cutoff date pertaining to collective negotiations as set forth in National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973) (Shawnee Mission), and directed the negotiations be halted. The issue on appeal is to determine whether such negotiations may be halted prior to the parties reaching agreement or exhausting the impasse resolution procedures. We hold such procedures to be mandatory. Upon a finding of impasse the district court must order that impasse resolution procedures commence in accordance with statutory provisions and continue until they are completed or terminated by mutual agreement of the parties.
The Association, recognized as the “professional employees’ organization” of U.S.D. 457 (K.S.A. 1977 Supp. 72-5413[e]), and the Board conducted negotiations during the winter of 1977 and spring of 1978 concerning the terms and conditions of teacher employment for the 1978-79 school year. As required by 72-5423(g), the parties exchanged their lists of items to be negotiated by the December 1 deadline. The negotiating teams thereafter conducted eighteen two-hour sessions over a 168-day period from December, 1977, through May 24, 1978.
A tentative agreement was reached on May 5, 1978, the provisions of which were submitted to the Board and the Association for ratification, pursuant to K.S.A. 72-5421. The Association rejected the agreement after voting three times in an effort to obtain a majority vote. On June 2, 1978, the Association filed a petition in Finney County District Court asking that the judge declare an impasse in the negotiations, pursuant to K.S.A. 1977 Supp. 72-5426. The petition also requested that if an impasse were found to exist, impasse resolution procedures should be ordered in accordance with 72-5427 through 72-5429.
The parties came before Judge Vance on June 9,1978, at which time he found an impasse did exist between the parties. The judge stated, however, that:
“[T]o attempt to carry out the impasse proceedings further at this time would be a nullity, and . . . the question of whether or not an impasse exists is moot.”
He stated further that the impasse procedures could not be completed by July 1,1978, and that such proceedings would have had to be completed by June 1 in that particular district in order for a proper time to be allowed for the preparation of the school budget, according to the procedure set forth in the 1973 Shawnee Mission case.
The Association also alleges the Board issued unilateral contracts to the members of the “Unit” (all professional employees except administrative employees of U.S.D. 457) on June 16, 1978, and that the Board required the contracts be signed and returned by 5:00 p.m. on June 28,1978. The Board stated that failure to do so would result in the teachers being required to teach during the 1978-79 school year under the provisions of the 1977-78 contracts.
The matter is before this court to require Judge Vance to order that the impasse resolution procedures commence in accordance with K.S.A. 1977 Supp. 72-5427 and to order that this court stay, by way of a restraining order, the requirement of the Board that the contracts be signed and returned no later than June 28, 1978. The latter request was resolved when the Board stipulated that the rights of teachers who signed unilaterally-issued contracts would not be prejudiced in the resolution of legal issues presented in the mandamus action.
On July 21, 1978, pursuant to stipulations filed by the parties, and a prehearing conference, this court directed the parties to brief only one issue:
“[T]he issue to be briefed by the parties is whether or not professional negotiations pursuant to the Collective Negotiations Act, K.S.A. 1977 Supp. 72-5413 et seq., can be halted prior to the parties either reaching agreement or exhausting the impasse resolution procedures amended into the Act by the 1977 Legislature.”
Since the enactment of the statutes pertaining to collective negotiations, we have had four occasions to consider their effect and application.
In Liberal-NEA v. Board of Education, 211 Kan. 219, 505 P.2d 651 (1973), we construed the statute (K.S.A. 72-5413[e]) to mean that a previously recognized professional employees’ organization could continue in such capacity until its status was terminated in a legally effective manner.
In National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973) (Shawnee Mission), we considered questions relating to the duty to negotiate proper negotiable items, the time period for negotiations, and actions which constituted undermining of the negotiations. We held the parties are required to make a good faith effort to reach an agreement. The key to determining whether a subject is proper for negotiation is how direct the impact of an issue is on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a whole. We considered the time for negotiations and found that proper preparation of a school budget required advance knowledge of salary demands by teachers. In order to meet budget submission deadlines, negotiations between the board and teachers’ association must terminate not later than July 1, possibly earlier, depending upon the size of the school district and the complexity of its budgetary procedures. We discussed the NEA’s claim that the board was undermining the negotiating team and found no violation.
Our third occasion to examine the Collective Negotiations Act was in Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, 535 P.2d 889 (1975). We found it was the intent of the legislature to authorize a professional employees’ organization to sue or be sued in the association’s name and confirmed the law would not authorize a strike by professional employees.
In an effort to provide a more balanced situation for the bargaining process, the 1977 legislature enacted amendments to the Act, which expanded and clarified the scope of mandatory negotiations (K.S.A. 1977 Supp. 72-5413[l]), provided a detailed and complete process for the declaration of impasse and its resolution (72-5426 through 5429), and allowed for a specific and detailed right of action to prevent prohibited practices (72-5430). These amendments, and especially those dealing with the impasse resolution, are stated in mandatory terms, and rigid and narrow time-lines are established for each step. For example, a “summary hearing” must be held by the district court within five days after the filing of the petition. If impasse be found the district court “shall order that impasse resolution procedures be commenced in accordance with K.S.A. 1977 Supp. 72-5427 and 72-5428” (72-5426[c]). Once this declaration is made, the clerk of the court is required to deliver a copy of the findings and orders to the secretary of human resources “forthwith.” In accordance with 72-5427, the secretary of human resources, upon receipt of the district court declaration of impasse, “shall appoint forthwith a mediator to assist in resolving the impasse.” The mediator is provided a period of seven days to resolve the impasse and thereafter the mediator or either party may certify that mediation has failed, thus initiating the fact-finding proceedings. Upon a certification or written request that the mediation has failed, the secretary shall appoint “forthwith” a fact-finding board in accordance with 72-5428 and the fact-finding board must submit its report within ten days of appointment, which period can be extended by the parties for not to exceed seven additional days.
In the fourth case considered by this court, In re NEA-Topeka, Inc., 224 Kan. 582, 581 P.2d 1187 (1978), we held the declaration of an impasse in negotiations is not a final decision appealable under K.S.A. 60-2102(a)(4).
Only the Shawnee Mission case spoke to the issue involved in the present action. We must determine whether the amendments containing impasse procedures should be construed as mandatory. Legislative intent should be determined from a consideration of the entire Collective Negotiations Act. Effect must be given to the Act and every part thereof, as well as all other statutory enactments generally bearing on the subject matter. 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. Harris v. Shanahan, 192 Kan. 629, 635, 390 P.2d 772 (1964); In re Estate of Diebolt, 187 Kan. 2, 14, 353 P.2d 803 (1960); State, ex rel, v. Moore, 154 Kan. 193, 197, 117 P.2d 598 (1941).
In our judgment it was the intent of the legislature that the impasse resolution procedures supersede the language in Shawnee Mission. We are mindful of the rule that “[w]here a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if written into it originally.” State, ex rel., v. Moore, 154 Kan. 193, Syl. 4. See also State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 761, 258 P.2d 225 (1953). It is not unusual for the judicial construction of a statute to be affected by subsequent amendments to the statute. Such amendments may justify a judicial construction contrary to the court’s previous interpretation. Barke v. Archer Daniels Midland Co., 223 Kan. 313, 573 P.2d 1025 (1978).
We have long recognized the rule that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls. State, ex rel., v. Throckmorton, 169 Kan. 481, 486, 219 P.2d 413 (1950). We believe the specific statutes relating to impasse resolution procedures must take precedence over our prior decision in Shawnee Mission. There we sought to provide a logical termination of the negotiations process. In the absence of specific legislation to that effect, we interpreted the negotiations process with a logical and practical cutoff date relating to budget submission. This interpretation must fall by the wayside in the face of specific legisla tion mandating an impasse procedure which, if followed to its conclusion, would provide the logical termination to the process. We believe the legislature intended to effect such a change in the existing law. Horyna v. Board of County Commissioners, 194 Kan. 445, 448, 399 P.2d 844 (1965); State, ex rel., v. Richardson, 174 Kan. 382, 386, 256 P.2d 135 (1953).
Recently, in Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976), we stated:
“It is presumed the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation.”
One of the key arguments the Board advances for retention of a cutoff date in the negotiating process relates to the necessity that all salary disputes be resolved before the deadline for budget submission by the Board. We note that the issue of salary is only one of the many negotiable items discussed during the negotiating sessions. K.S.A. 1977 Supp. 72-5413(1) provides a guideline for negotiable items. It reads:
“(Z) ‘Terms and conditions of professional service’ means salaries and wages, hours and amounts of work, vacation allowance, holiday, sick and other leave, number of holidays, retirement, insurance benefits, wearing apparel, pay for overtime, jury duty, grievance procedure, disciplinary procedure, resignations, termination of contracts, matters which have a greater direct impact on the well-being of the individual professional employee than on the operation of the school system in the school district or of the community junior college and such other matters as the parties mutually agree upon as properly related to professional service. Nothing in this act, or the act of which this section is amendatory, shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution of this state.”
Although we realize the issue of salary is the most often disputed item in negotiations, we do not believe it was the intent of the legislature that it control the impasse procedures. Retaining a cutoff date for negotiations, particularly one that contemplates only the problems of preparing the budget for the following year, would be to ignore the other important items that are negotiated during these sessions. Furthermore, there appears to be ample evidence advanced by the Association that redistribution of monies among line items is a common practice in school districts. Even though the budget of a school district has been adopted, there remains a degree of flexibility in line item adjustment. To the extent of the flexibility of the budget, the issue of salaries of teachers continues to be a negotiable item.
The impasse procedures would be negated by a strict budget submission time because the resolution process could be prematurely cut short if not commenced well in advance of July 1. Although the legislature enacted the procedures in contemplation of a swift resolution process, as evidenced by the narrow time-lines provided in each step, we note there are several steps which contain built-in delays not controlled by a set time period, which either party could utilize to bog down the procedures. The statute would permit a board to avoid impasse procedures merely by exercising one of the opportunities for delay. The final power of a board to take “such action as it deems in the public interest,” (K.S.A. 1977 Supp. 72-5428[/I), coupled with a mandatory cutoff date, would place the board in a much stronger negotiating position than the professional employees’ association.
The Board argues the cutoff date should be no later than April 15 (K.S.A. 72-5411 [now May 15 as amended, L. 1978, ch. 292, § 1]) for teachers to notify the Board they do not desire a continuation of their contracts. The Board suggests this date for the following reasons: First, it is more in accord with the practical realities of operating under the Act; second, it provides for more than ample time to complete the collective negotiations process; third, it would benefit both boards of education and teachers, more so the latter; and fourth, it is more in accord with what they perceive to be the true legislative intent.
We agree with the argument as to practicality, but disagree with the argument as to legislative intent. We are again faced with the mandatory language of the Act. We pointed out. in Shawnee Mission the deadlines referred to in 72-5411 have nothing to do with issuance of new contracts, but only with the termination of old contracts. Our treatment of the argument of the Board that the budget submission law should not control applies equally to the continuing contract law.
We believe the establishment of an arbitrary cutoff date would be a deterrent to a negotiated contract and contrary to the result sought by the legislature. The utilization of the impasse resolution procedures without a mandatory cutoff date should tend to eliminate any delaying tactics by either party. Once impasse is declared, the procedure must follow its entire course. To delay without legitimate reason serves neither party and illustrates lack of a “good faith effort” to reach an agreement. K.S.A. 1977 Supp. 72-5413(g).
We hold that once an impasse has been declared, pursuant to K.S.A. 1977 Supp. 72-5426(c), resolution procedures must commence in accordance with the statutory procedure. We direct Judge Vance to order the commencement of impasse resolution procedures.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action to recover damages for personal injuries arising from a collision between a motorcycle and an automobile at an intersection near Lake Shawnee in Shawnee county. The plaintiff, Theresa L. Crowley, was a passenger on a motorcycle driven by Charles Brockman. The defendant, Roylenne K. Ottken, was the driver of the automobile. The case was tried to a jury which brought in a general verdict in favor of the defendant. The plaintiff Crowley has appealed to this court claiming trial errors.
The factual circumstances which brought about the collision were not greatly in dispute. The accident occurred on a lake entrance road which begins at a T-intersection with Croco road and runs westerly toward Lake Shawnee. Approximately 500 feet west of Croco road, the lake entrance road forms a “Y” shaped intersection with two roads which run to the right and left. The posted speed limit in the area is 25 miles per hour. The intersection presented a very dangerous situation because there were no traffic control devices to warn or direct operators of vehicles as they approached the intersection.
Just prior to the collision, the Brockman motorcycle was following another motorcycle driven by Frank Zeckmeister heading in a westerly direction toward the “Y” intersection. At the same time, the defendant was driving her automobile at a slow speed approaching the intersection from a northwesterly direction. The Zeckmeister motorcycle reached the intersection ahead of the Brockman vehicle and was able to clear the intersection on the road extending to the southwest. The speed of the Brockman motorcycle, on which the plaintiff was riding, was estimated by some witnesses at 35-to-45 miles per hour. Witnesses testified that after the Brockman motorcycle turned onto the entrance road off Croco road, it accelerated substantially prior to the moment of impact. Defendant Ottken’s version of the accident was that, as she approached the intersection, she saw motorcycles approaching from the east. After the Zeckmeister motorcycle crossed in front of her, she entered the intersection and then noticed the Brockman motorcycle swerving. She stopped in the intersection, leaving the motorcycle enough room to pass on either side. The motorcycle was unable to avoid the stopped automobile and the collision occurred.
The first point raised on appeal is that the trial court erred in submitting the issue of the plaintiff’s contributory negligence to the jury. The instructions on the subject of contributory negligence were in the language of PIK Civil 4.01 and 8.91. The plaintiff has no objection to these instructions as a correct statement of the law. She maintains that they should not have been given at all. The issue is whether reasonable minds could differ as to the negligence of the plaintiff as a passenger on the motorcycle.
Under all the facts and circumstances, we have concluded that the contributory negligence of the plaintiff was an issue of fact properly submitted to the jury. There was testimony to the effect that the plaintiff observed the defendant’s vehicle as it approached the intersection from the right. The posted speed limit was 25 miles per hour. Witnesses estimated the speed of the motorcycle to be as high as 35-to-45 miles per hour. The record does not indicate that the plaintiff warned the driver to slow down until it was too late to avoid the collision. Under all the circumstances we cannot say that the trial court erred in submitting the issue of the defendant’s contributory negligence to the jury.
The second point on appeal is that the trial court erred in giving an instruction on sudden emergency. In Zell v. Luthy, 216 Kan. 697, 533 P.2d 1298 (1975), we stated that emergency circumstances are a proper matter for argument by counsel and that an instruction on sudden emergency is not required where negligence, burden of proof, and causation have been properly defined in the instructions. In Zell we refused to reverse the case because the trial court had given an emergency instruction as we were unable to say that the plaintiff had been prejudiced by the instruction. We have reached a similar conclusion in the case now before us. Although an instruction on sudden emergency should not have been given, it appears to us that under all the circumstances such an instruction was not prejudicial error as a matter of law in this case. We, therefore, decline to reverse the case on this point.
Points three and four have been combined in the brief. The substance of these points is that the trial court should have instructed the jury that the defendant was negligent as a matter of law. In our judgment the trial court properly submitted the issue of the defendant’s negligence to the jury. From the evidence presented in the case, the jury might well have found that the cause of the collision was the excessive speed of the motorcycle, causing the driver to swerve, lose control, and collide with the defendant’s vehicle.
The last point raised on the appeal is that the trial court should have granted a mistrial or a new trial because the verdict of the jury was not unanimous in that one of the jurors was in disagreement with the verdict rendered in favor of the defendant. On the last day of the trial, September 24, 1974, the case was submitted to the jury, and after deliberating two hours, the jury returned a general verdict in favor of the defendant, Ottken. Plaintiff’s counsel requested that the jury be polled. The reporter asked each of the jurors, “Is this your verdict and are you satisfied therewith?” Upon inquiring of juror Dorthea Mercer, she replied, “No.” Following further inquiry to the juror and a discussion by court and counsel, plaintiff’s counsel stated that he thought that, in the alternative, either further instructions should be given and the jury sent back to deliberate or the record should indicate a hung jury. Plaintiff’s counsel never actually moved for a mistrial. The trial court then gave the jury an additional instruction patterned after PIK Civil 10.20: Deadlocked Jury, as found in the bound volume of PIK Civil. It is clear that plaintiff’s counsel stated he had no objection to the giving of the instruction. The jury again retired and, after an additional brief deliberation, returned to the courtroom with a verdict in favor of the defendant. At the plaintiff’s request, the reporter again polled the jury and this time all twelve jurors, including juror Mercer, stated that it was his or her verdict.
Six days following the rendition of the verdict, the plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was accompanied by an affidavit of juror Mercer which stated in substance that the verdict in favor of the defendant rendered on September 24 was not her verdict, that she did not agree with it at that time nor does she now, and that she went along with the verdict because she felt that it would do no good to maintain her position favorable to the plaintiff. The trial court refused to admit the juror’s affidavit and overruled the plaintiff’s posttrial motions. The trial court found the affidavit of juror Mercer inadmissible under the provisions of K.S.A. 60-441. That section provides in substance that, upon an inquiry as to the validity of the verdict, no evidence shall be 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 trial court found specifically that juror Mercer could not be permitted to impeach her own verdict on grounds inherent in the verdict itself, and that she could not divulge what considerations influenced her in arriving at her verdict or the reasoning on which she based her decision. The trial court further found that the juror could not impeach the verdict in which she expressly joined by the giving of testimony as to the reasoning employed by the jury in reaching its decision or what may have influenced the mental processes by which she and her fellow jurors arrived at their verdict.
The ruling of the trial court is supported by a consistent line of decisions in this state beginning in 1872. An early case on the subject is State v. Horne, 9 Kan. 119 (1872), where this court held that affidavits of jurors are not admissible to impeach their verdict on any ground essentially necessary to consider in making up the verdict. In Home, on motion for a new trial, the defendant offered to read the affidavits of two jurors who tried the case. These affidavits stated in substance that the affiants did not believe the defendant guilty, but that they believed that if he was acquitted, great bodily harm would be inflicted on him by a mob, and that it would be better for him to be found guilty than to run a risk of mob violence. It was held that the trial court properly refused to permit these affidavits to be read in support of the motion for a new trial.
More recently in State v. Taylor, 212 Kan. 780, 512 P.2d 449 (1973), it was held that a juror may not impeach his verdict on a ground inherent in the verdict itself; he may not divulge what considerations influenced him in arriving at his verdict or the reasoning on which he based his decision. In Taylor the verdict of guilty was read at 11:57 a.m. on June 23, 1971. The jury was polled and all agreed that it was a unanimous verdict. That same day at 1:30 p.m., one of the jurors appeared to testify before the court and stated that she had voted for the guilty verdict and that she had answered in the affirmative when the jury was polled. She further testified that her fellow jurors persuaded her to vote guilty but that she knew she was wrong. At the hearing on the motion for a mistrial, she stated that the verdict was not hers. The defendant contended on the basis of this testimony that a mistrial or new trial should have been declared. We held that the testimony of the juror was inadmissible to impeach the verdict, citing many cases in support of the court’s position. In the opinion it is stated that the mere fact a juror who joins in a verdict later professes to believe the defendant innocent is no basis for ordering a. mistrial. The factual circumstances in the present case are quite similar to those in the cases discussed above. Here juror Mercer’s testimony did not relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room but only to the reasons she joined in the verdict. The trial court did not err in refusing to grant a mistrial or a new trial.
The judgment of the district court is affirmed.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is a review of a decision of the Court of Appeals contained in an unpublished opinion which affirmed in part and reversed in part the judgment of the Thomas district court. The issue before us is the validity of a number of inter vivos transfers of real and personal property by the survivor of a joint, mutual and contractual will.
P. A. Theimer and his wife, Lillian Theimer, executed the will on April 4, 1961. P. A. Theimer died in 1961, and the will was admitted to probate as his last will and testament. The pertinent portions of the will are these:
“SECOND: We, and each of us, give and bequeath to which ever one of us is the survivor all of the personal property of which either of us may die possessed to be the sole and separate property of the survivor of us absolutely and forever.
“THIRD: We, and each of us, hereby give and devise to the survivor of us all of the real estate, wheresoever situated, of which either of us may die possessed, to be the sole and separate property of the survivor of us for his or her use and benefit for as long as he or she may live, hereby granting unto the survivor of us the full and absolute power and authority to sell, mortgage, exchange, transfer, lease for oil and gas mining purposes and for any other purpose without restriction as to term, give away, convey and otherwise dispose of and deal with the same, and the proceeds therefrom, and the entire title thereto, as he or she may desire, in all respects and in every manner as fully and completely as if the absolute owner in fee thereof; and upon the death of the survivor of us, we and each of us give and devise all that may then remain of such real property to our nephews, Lloyd Theimer of Colby, Thomas County, Kansas, and Howard Theimer of Wichita, Kansas, and to the survivor of them in trust for the purposes and upon the terms and conditions of trust set forth in paragraph ‘Fourth’ hereof.
“FOURTH: Upon the death of which ever one of us is the survivor and after the payment of just debts, taxes and expenses incident to the administration of the survivor’s estate, we, and each of us, give, devise and bequeath all of the rest, residue and remainder of the property of which ever one of us is the survivor, whether real, personal or mixed, and wheresoever situated, to our nephews, Lloyd Theimer of Colby, Thomas County, Kansas, and Howard Theimer of Wichita, Kansas, and to the survivor of them, in trust, however, to hold and administer the same upon the terms and conditions of trust hereinafter set forth:
“(a) Said trustees, and the survivor of them, shall hold, use, manage and control the trust estate for the benefit of our said granddaughters, Patricia Joline Voisin who was born November 25, 1953, Karla Michele Voisin who was born May 6, 1955, and Vanita Louise Voisin who was bom May 26, 1956. . .
Upon final settlement of the P. A. Theimer estate, all of his property was awarded to Lillian. Thereafter, and during her lifetime, she made the gifts here challenged. Lillian executed and delivered a warranty deed on January 18, 1974, conveying to Helen Crawford certain real estate which Lillian had acquired through the estate of P. A. Theimer. On the same day, Lillian established a joint checking account in the Thomas County National Bank with Helen Crawford; there was a balance of over ten thousand dollars in the account when Lillian died.
Lillian wrote and delivered a check for $25,000 to Helen Crawford on January 23,1974. On the next day, Lillian caused to be transferred to herself as trustee for Helen Crawford, 1554.562 shares of Investors Mutual, Inc. And on February 6,1974, Lillian caused certain Series E bonds, previously registered in the names of P. A. and Lillian Theimer as joint owners, to be reissued to Lillian Theimer, payable on her death to Helen Crawford. The real estate, checking account, gift of cash by check, Investors Mutual shares, and Series E bonds constituted over 80% of the value of Lillian Theimer’s holdings. Lillian died on April 13, 1974, and the joint will was admitted to probate as her last will and testament.
The trial court found that the transfer of real estate, the $25,000 gift by check, and the creation of the joint checking account were valid inter vivos gifts; from that order the trustees appealed. The trial court also found that the transfers of Investors Mutual shares and Series E bonds were testamentary in nature and violated Lillian’s contractual obligations under the will. There was no appeal from that determination.
Finally, the trial court found that Lillian Theimer was fully competent at the time the challenged transfers were made; that Lillian had independent advice from counsel; that she knew what she was doing; and that there was no undue influence. Those rulings are not challenged on appeal.
A divided panel of the Court of Appeals held that the gift of real estate was valid, since Lillian was specifically authorized to make gifts of real estate by the third paragraph of the will, and it affirmed the trial court’s holding that the conveyance of real estate by deed was a valid inter vivos gift. It reversed the trial court, however, as to the $25,000 gift by check and as to the joint checking account, and held that these gifts, made for the purpose of defeating Lillian’s obligation under the contractual will, were not authorized by paragraph 2, and were contrary to our repeated holding that, the survivor’s power to dispose of property does not include an unrestricted right to make gratuitous transfers of property to the detriment of remaindermen. Seal v. Seal, 212 Kan. 55, 510 P.2d 167 (1973); Klooz, Administrator v. Cox, 209 Kan. 347, 496 P.2d 1350 (1972); In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545 (1965); Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899 (1962); In re Estate of Jones, 189 Kan. 34, 366 P.2d 792 (1961); In re Estate of Buckner, 186 Kan. 176, 348 P.2d 818 (1960).
We have no quarrel with the rule or with its application to the facts in those cases. In Seal, the survivor was given power, under the terms of the will, “to sell, mortgage, lease, encumber and dispose of” certain property. We held that the survivor’s right to dispose of property did not include the right to dispose of property without consideration, under the terms of the joint, mutual and contractual will. In Klooz and in Tompkins, we held that the phrase “with right of disposal” did not authorize the survivor to make substantial gifts, in contravention of the basic purposes of the contractual wills there involved.
In Parsons and in Jones, we held that a qualified power of disposition for the survivor’s personal use or for necessities did not authorize the making of substantial transfers without consideration. And in Buckner, we found the will to be uncertain and ambiguous, and after applying the usual rules of construction, we held that the grant to the survivor of the privilege of “selling, mortgaging and disposing” of property did not authorize the survivor to make gifts and thus thwart the primary and central purpose of the contractual will.
None of the wills examined in those cases, however, authorizes the survivor to give property away, as does the Theimer will. Our research has disclosed no similar provision in joint, mutual and contractual wills coming before this court. In each of the cited cases, the language of the will was held to be ambiguous, and thus subject to judicial interpretation. As we observed in Giese v. Smith, 195 Kan. 607, 408 P.2d 687 (1965), however:
“Previous judicial decisions may give us rules for construction, but in construing a will each case must be governed by its own particular facts and circumstances; little aid can be derived from other judicial decisions and opinions unless the words of the two wills are substantially identical.” (p. 610.)
Our first duty, when the meaning of the language in a will is challenged, is to determine whether the will is ambiguous. In re Estate of Ricklefs, 211 Kan. 713, 716, 508 P.2d 866 (1973) and cases therein cited.
In Parsons v. Smith, Trustee, supra, we said:
“The rule of this jurisdiction is that when the language used in the making of a will is clear and unambiguous a construction of that instrument is unnecessary and it must be enforced in accord with its terms and provisions. . . . [Wjhere a court, either trial or appellate, is called upon to determine the import to be given the terms of a will its first duty is to survey the instrument in its entirety and ascertain if there is occasion for employing rules of judicial construction in determining its force and effect.” (p. 572.)
Similarly, in In re Estate of Jones, supra, we said:
“. . . [T]his will is clear, definite, and unambiguous and we need, therefore, not go into other rules of construction to determine the intention of the testators. . . .” (p. 39.)
Justice Fontron set forth the rule for determining whether a will is ambiguous in In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438 (1969), saying:
. . [T]he critical test is whether the intention of the testator, or testators as the case may be, can be gathered from the four corners of the instrument itself. If the testamentary intention can be gathered from the face of the will, ambiguity does not exist; otherwise it does. . . .” (p. 374.)
We now turn to the will before us. The second paragraph bequeaths all of the personal property to the survivor as such person’s “sole and separate property . . . absolutely and forever.” The following paragraph devises to the survivor a life estate in the real estate — with power to sell, mortgage, exchange, transfer, or lease the land or the proceeds therefrom — or to give it away! The fourth paragraph disposes of the property remaining in the hands of the survivor, upon the survivor’s death.
Viewing the instrument as a whole, it is clear that the survivor was not restricted, during her lifetime, from disposing of either personal or real property, even by gift. The parties did not contract with each other to retain all personal and real property passing from the first decedent to the survivor. They contracted only that the property owned by the survivor at the time of death would pass according to the fourth paragraph of the will.
We hold that the will is not ambiguous; that the survivor, Lillian Theimer, was free to make gifts of either personal or real property during her lifetime; and that the gifts of real property, and of cash both by check and by the creation of a joint checking account, constituted valid inter vivos gifts.
The unpublished opinion of the Court of Appeals is affirmed insofar as it held the gift of realty valid; and it is reversed insofar as it held the gifts of personal property invalid. The order of the trial court is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a conviction for aggravated robbery (K.S.A. 21-3427). The issue on appeal concerns the trial court’s refusal to allow the defendant to introduce evidence that the victim, William Elton Davis, had a prior conviction for selling liquor without a license (K.S.A. 41-901). Defendant contends the conviction is one involving dishonesty or false statement, making it admissible under K.S.A. 60-421. We disagree.
In support of his position, defendant cites Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974). The case is not applicable. Davis involved the question of the right to cross-examine a key prosecution witness regarding a prior adjudication of juvenile delinquency to demonstrate that the witness was still under control of the state and might thereby be subject to pressure by the prosecution. In the case at bar the prior conviction for selling alcohol without a license did not prove bias or prejudice of the witness against defendant, or pressure by the prosecution on the witness.
In the recent case of State v. Nixon, 223 Kan. 788, 576 P.2d 691 (1978), Mr. Justice Holmes set forth the well established rule that drug offenses per se do not involve dishonesty or false statement in their commission; hence, convictions for such offenses are inadmissible under K.S.A. 60-421 for the purpose of impairing the credibility of a witness. (See also, State v. Crowley, 220 Kan. 532, 552 P.2d 971 [1976]; State v. Belote, 213 Kan. 291, 516 P.2d 159 [1973].)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action to recover damages for personal injuries resulting from an automobile collision wherein defendant Morton Marlatt ran his car into the rear of the car driven by plaintiff Robert M. Garrison, with plaintiff Mabel V. Garrison as a passenger. After trial, a jury of six returned a verdict of $35,000 for Robert and $15,000 for Mabel, each amount being the maximum the jury could award.
Defendant appeals on several grounds, but our decision requires only a resolution of the issues raised concerning jury instructions.
Defendant contends the trial court erred in giving Instruction No. 5, which states:
“If you find for the plaintiffs, or either of them, you should allow such plaintiff an amount of money as will reasonably compensate him or her, or either of them, for their injuries and damages resulting from the occurrence in question, including any of the following shown by the evidence: (a) pain, suffering, disability or disfigurement, and any accompanying mental anguish suffered by such plaintiff to date and those which such plaintiff is reasonably certain to experience in the future; (b) the reasonable expenses of necessary medical care, hospitalization and treatment received; (c) loss of time or income to date by reason of such plaintiff’s disabilities and that which he is reasonably certain to lose in the future; and (d) aggravation of any pre-existing ailment or condition.
“In arriving at the amount of your verdict, you should consider such plaintiff’s age, condition of health before and after, and the nature, extent and duration of the injuries. For such items as pain, suffering, disability and mental anguish there is no unit of value and no mathematical formula that the Court can give you. You should award such sum as will fairly and adequately compensate such plaintiff. The amount to be awarded rests within your sound discretion.
“If you find from the evidence that before the occurrence involved in this case that either of the plaintiffs had a pre-existing physical ailment or defect, and further find that because of the occurrence this condition was aggravated or made active, so as to cause increased suffering or disability, then, if such plaintiff is entitled to recover, he may recover for such increased suffering and disability. Such plaintiff is not entitled, however, to recover for any physical ailment, defect or disability that may have existed prior to the occurrence or that was not caused by or contributed to by reason of the occurrence.”
The basis for the complaint is two-fold. The instruction was improper because (l)'it allowed the jury to consider a claim for future pain, suffering, disability, disfigurement and mental anguish for both plaintiffs when there was no evidence to support such a claim, and (2) it allowed the jury to consider a claim for loss of income for Mabel Garrison when there was no evidence to indicate she had ever lost or would lose wages.
Dr. Wayne O. Wallace, the treating physician, testified that when he examined Robert Garrison four months after the accident he found that he had completely recovered from injuries received in the accident and the only basis for continued treatment was related to a pre-existing condition. Likewise, Dr. Wallace testified he completed treatment of Mabel Garrison five months after the accident and she had recovered from her injuries.
In view of the fact there was no medical evidence to justify an award for future damages, we have made a diligent search of the record for other evidence which could support such an award. We found none. Neither party disputed the opinion of the doctor, nor did either complain of continued suffering at the time of trial. Under these circumstances there was no evidence to warrant giving an instruction for future pain, suffering or loss of income, or for permanent disability or disfigurement.
Plaintiffs argue the flaws in the instruction are not reversible because the trial court instructed the jury to award damages for losses for “any of the following shown by the evidence,” and the jury could disregard those instructions not applying to a particular plaintiff. We do not think the argument sound. It is the obligation of a trial court to instruct the jury with respect to the law governing all issues joined by the pleadings upon which the evidence is adduced and to advise the jury regarding the verdicts which may be rendered on the evidence actually adduced. (Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 600, 545 P.2d 334 [1976], and authorities cited therein.) This requires the trial court to instruct the jury on a theory or claim for recovery only when there is evidence to support such a verdict. When there is no evidence to support a claim, it is error for the trial court to give an instruction on the claim.
Defendant also argues the instructions were improper because they allowed plaintiffs to base their theory of recovery on the intoxication of defendant. Based on the weak evidence of intoxication, we agree. The only reference to defendant’s possible intoxication came in the testimony of Mabel Garrison when she claimed she smelled alcohol on defendant’s breath after the accident. Plaintiffs claim this was enough evidence to justify an instruction to the jury, relying on Shawnee Township Fire District v. Morgan, 221 Kan. 271, 559 P.2d 1141 (1977). We think that case is distinguishable on the facts. There evidence existed that defendant had an odor of alcohol on his breath at the scene of the accident. Plastic drink glasses were found on the floorboard of his car. The ambulance drivers detected a strong odor of alcohol coming from defendant when they put him in the ambulance. Defendant was extremely uncooperative and belligerent. The mere presence of alcohol on the breath of a driver, with nothing more, is not enough to justify a jury instruction on intoxication.
Because of the resolution of these issues, it is unnecessary to consider other points raised by defendant.
The judgment of the trial court is reversed and remanded for a new trial on all issues. | [
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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 which found Milton W. Choens (defendant-appellant) guilty of involuntary manslaughter (K.S.A. 21-3404). Various grounds for reversal are asserted on appeal.
The Kansas Court of Appeals affirmed the trial court in State v. Choens, (case No. 48,747, unpublished opinion filed December 23, 1977). We granted a petition for review based upon our opinion of State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978). Our opinion in Makin was filed April 1, 1978; thus, the Court of Appeals was not aware of that decision at the time it made its ruling.
The facts are not seriously in dispute. On April 3, 1976, an automobile driven by the appellant struck a car driven by Lucille Gray on the Landfill Road located just outside El Dorado, Kansas. Oscar M. Gray, a passenger in the car, sustained extensive injuries to his oral cavity and died the next day of cardiac failure. The pathologist who performed the autopsy, Dr. Soon E. Kim, testified the cause of death was heart failure induced by aspiration of blood.
The state’s information charged the following:
“That in Butler County, Kansas, on or about the 3rd day of April, 1976, MILTON W. CHOENS did unintentionally kill a human being, to-wit: Oscar M. Gray, without malice, while in the commission of an unlawful act not amounting to a felony, to-wit: driving left of center, K.S.A. 8-1514, and/or speeding, K.S.A. 8-1336, by colliding with a vehicle occupied by Oscar M. Gray. (K.S.A. 21-3404; K.S.A. 21-4501(e))”
No wantonness was alleged.
At the trial the appellant contended the accident resulted from a blowout of his left front tire. Robert B. Lehnherr, deputy sheriff of Butler County, Kansas, testified it was his opinion the appellant’s speed exceeded 70 miles per hour based upon interviews, skidmarks, and tests run to compute speed at the scene of the accident. He stated the tire flattened on impact with the Gray vehicle and did not blow out.
Miss Gray testified she was driving approximately 35 miles per hour when she saw the appellant’s car coming directly toward her. She said she tried to get to a ditch in order to avoid a collision when the accident occurred. She further testified her father, a man 80 years of age, was in good health but had recently suffered from high blood pressure.
The trial court instructed the jury on both involuntary manslaughter and vehicular homicide following the language of PIK, Criminal §§ 56.06 and 56.07 (Revised). The jury found the appellant guilty of involuntary manslaughter. The Court of Appeals held: The trial court did not abuse its discretion (1) in allowing Robert B. Lehnherr to give his opinion as to the speed of the appellant’s vehicle immediately prior to the impact; (2) in excluding evidence of the prior posted speed limit; and (3) in finding sufficient evidence to support the verdict.
On appeal to this court the appellant first contends that State v. Makin, supra, should be applied retroactively to all involuntary manslaughter cases pending at the time the decision was rendered on April 1, 1978. We agree.
While no criminal case in Kansas deals specifically with the retroactive-prospective application of a later overruling decision, various civil cases discuss the issue at length. (See Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 [1974]; see also Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 670, 562 P.2d 65 [1977]; Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 [1969]; and Crigler v. Shepler, 79 Kan. 834, 101 Pac. 619 [1909].) Suffice it to say the arguments for retroactive application are adequately presented. in these cases, and it would serve no useful purpose to restate them here.
As a general rule a conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. (State v. Heath, 222 Kan. 50, 54, 563 P.2d 418 [1977] and cases cited therein.) In the present case the appellant’s conviction was appealed to this court from the lower court for final review on March 31, 1978, and the rules enunciated in Makin directly apply. Objections to instructions on involuntary manslaughter and vehicular homicide by counsel for the appellant at the trial were sufficient to keep the question open.
The appellant next questions whether the jury had adequate instructions on wanton conduct or gross negligence necessary to find him guilty of involuntary manslaughter. He contends it was error for the jury to be instructed on involuntary manslaughter without first being told that wanton conduct or gross negligence is a necessary element under Makin. Here the trial court instructed:
“The defendant is charged with the crime of involuntary manslaughter. To this charge the defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Oscar M. Gray.
“2. That it was done while in the commission of one or more unlawful acts, to-wit: driving upon the left half of the roadway and/or speeding.
“3. That this act occurred on or about the 3rd day of April 1976, in Butler County, Kansas.”
The jury was also instructed on vehicular homicide.
In Makin we held:
“. . . [I]n the field of unintentional homicide by operation of a motor vehicle, the specific statute, vehicular homicide (K.S.A. 21-3405), is concurrent with and controls the general statute on involuntary manslaughter (K.S.A. 21-3404) except where the acts of the accused constitute wanton conduct (gross negligence). Accordingly, the issue in all such cases where the charge is involuntary manslaughter becomes whether or not the conduct of the defendant was grossly negligent. In virtually all cases, then, vehicular homicide would be a lesser included offense of involuntary manslaughter and the jury should be instructed thereon.” (p. 748.)
“Wanton conduct” as used in Makin, is intended to be “wanton conduct” as defined in K.S.A. 21-3201(3). Accordingly, the PIK Criminal instruction on involuntary manslaughter found at § 56.06 requires revision in accordance with this statement.
Wanton conduct or gross negligence was not in issue here. Thus, contrary to Makin the jury was given the opportunity to find the evidence established the crime of involuntary manslaughter without being instructed that wanton conduct or gross negligence was a necessary element of that crime.
Finally, the appellant asserts the evidence was insufficient to support the verdict of involuntary manslaughter. Our court indicated in Makin whether the necessary elements are present to constitute wantonness must depend upon the facts and circumstances of each particular case. Because wanton or gross conduct was never an issue in this case, the parties did not present the case to resolve this issue, and the jury was never given an opportunity to consider the point.
Therefore, the judgment is reversed and the case is remanded for a new trial. | [
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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 trial to the court in which Jimmie L. Cook (defendant-appellant) was found guilty on one count of aggravated kidnapping (K.S.A. 21-3421), one count of rape (K.S.A. 21-3502), one count of kidnapping (K.S.A. 21-3420), and one count of indecent liberties with a child (K.S.A. 1977 Supp. 21-3503).
The appellant asserts various trial errors occurred and challenges the sufficiency of the evidence on appeal.
On October 16, 1975, Miss P. and Miss T. decided to skip their seventh hour class at Pleasant Valley Junior High School in Wichita, Kansas. They were each fourteen years old. When the girls left school at approximately 2:00 p.m., they saw the appellant and Mike Loggins in a yard across the street. The two men walked away but returned shortly thereafter and approached the girls. They asked the girls their ages and whether they had boyfriends. After a brief conversation the appellant grabbed Miss P. by the shoulder, put a kitchen knife to her neck, and told her not to scream. Loggins grabbed Miss T. by the arm and held a knife to her back.
The appellant then directed Miss P. to walk to a bridge over Highway 1-235 which was located several blocks from the school. Loggins and Miss T. followed. When they reached the bridge the appellant instructed Miss P. to crawl inside a man-made, carpeted enclosure underneath some rocks along the bridge’s wall. He told her to remove her clothes and she complied. He, in turn, removed his clothes. According to Miss P. the appellant then raped her. Miss P. testified she feared the appellant would knife her if she refused him.
During this time Loggins and Miss T. remained beneath the bridge outside the enclosure. Loggins told Miss T. to remove her clothes but she refused. He then grabbed her hair, put the knife to her throat and threatened to kill her. When she removed her overalls a rash on her hip was exposed. Loggins ordered Miss T. to put her overalls back on with the bib unfastened and to remove her shirt and bra. Thereafter he kissed her on the mouth and neck, lay on top of her and apparently simulated sex. He soon stated, “What’s the use” and told her to hook up her overalls. Loggins then went through Miss T.’s purse and took 35 cents in addition to her Timex watch.
The appellant and Miss P. soon appeared from beneath the bridge. When Loggins asked if Miss P. had any money, the appellant stated, “Don’t take their money.” The two men ordered the girls to leave and threatened to kill them if they relayed the episode to anyone.
As the girls began walking to Miss P.’s home, they met Miss T.’s older brother who was in his car. After telling him what had happened the three saw Mike Loggins walking down the street. While Miss T.’s brother chased Loggins into a laundromat Miss T. and Miss P. saw Officer Mike Cummings of the Wichita police department cruising the area and told him what had occurred. Officer Cummings arrested Loggins and placed him in his patrol car where he subsequently found Miss T.’s watch on the floorboard.
Officer Nancy Bryan of the Wichita police department collected Miss P.’s underwear. She testified at the trial that laboratory tests revealed the presence of seminal fluid on the clothing.
At approximately 2:30 p.m. Officer John Espinoza of the Wichita police department was dispatched to the appellant’s house at 3004 North Charles Street. The appellant’s brother answered the door and allowed Officer Espinoza to enter. The appellant was sleeping on the living room couch. After being awakened he accompanied Officer Espinoza to the patrol car where he was advised of his Miranda rights. The appellant relayed the afternoon’s events to the officer and called to his brother to get the knives. He was taken to the police station and formally charged.
The appellant testified in his own behalf at the trial. He stated he had been sniffing glue on the afternoon of the sixteenth of October. While he recalled leaving his home and later returning, he remembered nothing else during the afternoon. The appellant was convicted of the .aggravated kidnapping and rape of Miss P. as well as kidnapping and taking indecent liberties with Miss T. His motion for a new trial was denied and appeal has been duly perfected.
The appellant first contends it was error for the trial court to sustain the prosecutor’s objection to his question concerning the rape victim’s previous sexual experience. During cross-examination the following exchange occurred:
“Q. Okay. Now, have you ever had sexual relations before?
“MR. RUMSEY: I object to that question, Your Honor.
“THE COURT: Sustained.”
After further testimony concerning the sexual act itself the appellant’s counsel again attempted to ask Miss P. about her previous sexual experience. He questions:
“Q. Based upon this your testimony is still that you’re certain that he actually penetrated your vagina though?
“A. Yes.
“MR. HOPPER: Your Honor, I think at this time my original question that if this victim had ever had sex before is certainly relevant to establish whether she would actually realize whether or not there had been penetration of her vagina, I’d like to repeat my question at this time.
“THE COURT: Well, the previous sexual history of the party in a rape case, of the victim, is not relevant to any issue in the case, and you will not be permitted to ask the question. Don’t ask me to do it again.”
The appellant assigns this ruling as error. He claims he desired to show the victim’s sexual inexperience and inability to distinguish between penetration and close physical contact.
At the outset we note K.S.A. 60-447a now deals with the type of situation presented here. However, it first became effective July 1, 1976. The case at bar was tried on April 7, 1976, approximately two months before the effective date of the statute.
In any event, under our rules of evidence and recent case law the questions should not have been allowed. Generally when the chastity of the prosecutrix is in issue, it cannot be assailed by evidence of specific acts of unchastity with persons other than the accused. (See 65 Am. Jur. 2d, Rape, § § 82-85 [1972]; Annot., 140 A.L.R. 364, 365 [1942]; 4 Jones on Evidence, § 25:16 [6th ed. 1972]; and 1 Wigmore on Evidence, § § 62, 200 [3rd ed. 1977 Supp.].)
This is in accord with Kansas law. The discussion in Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 60-447a (1977 Supp.) states:
. . Under existing law, evidence of prior sexual conduct with a person other than the defendant would ordinarily be relevant only as tending to prove the character trait of unchastity and thus would be inadmissible under K.S.A. 60-447. . . .” (p. 99.)
The appellant cites State v. Gereke, 74 Kan. 196, 200, 86 Pac. 160 (1906) as precedent. This opinion was later followed in State v. Johnson, 129 Kan. 207, 282 Pac. 723 (1929) and State v. Rosenberry, 156 Kan. 508, 134 P.2d 414 (1943). These cases hold that testimony relating the prosecutrix’s illicit relationships with others than the accused is admissible on the issue of her veracity. Recent Kansas case law has held sexual morality has nothing to do with the honesty or veracity of a witness, and attempts to impeach the witness by cross-examination on sexual morality are prohibited under K.S.A. 60-422(c). (See State v. Darling, 208 Kan. 469, 477, 493 P.2d 216 [1972].)
Moreover, if the appellant had wished to question the prosecutrix whether actual penetration occurred, he should have phrased his question accordingly. (See Annot., 76 A.L.R.3d 163, 213 [1977].) The appellant could have properly pursued questioning of Miss P. regarding her knowledge of the male and female anatomy in order to establish whether penetration occurred. His question about prior sexual experience was not relevant to Miss P.’s knowledge of her anatomy; thus, the objection to the question was properly sustained.
The appellant next asserts the trial court erred in failing to sustain his objection to the prosecutor’s leading questions put to the arresting officer concerning the giving of Miranda rights.
This argument lacks merit. Wichita Police Officer John Espinoza testified he arrested the appellant and informed him of his Miranda rights. The record reveals the disputed testimony was as follows:
“Q. The four items that are listed on that card are they the same as the ones that are listed on your card?
“A. Yes, sir, they are.
“Q. Same ones that are listed on the card that you used to advise the defendant of his rights?
“A. Yes, sir.
“MR. HOPPER: Your Honor, I object, he’s leading the witness.
“THE COURT: Well, overruled. However, he’s already answered it.
“Q. Could you tell us what it was that you advised the defendant of?
“A. Okay. Can I read them off of this? This is what I told him.
“Q. You’re using something to refresh your memory, are you?
“A. Yes, sir.
“Q. Are you using something to refresh your memory?
“A. Yes.
“MR. HOPPER: Objection, Your Honor, he’s leading the witness.
“THE COURT: The witness testified he read them, there is no reason why the witness cannot read what he read. Overruled.”
As a general rule whether leading questions should be permitted in a particular case rests within the sound discretion of the trial court. (State v. Jones, 204 Kan. 719, Syl. 6, 466 P.2d 283 [1970]; and State v. Rowland, 176 Kan. 203, 270 P.2d 211 [1954] and cases cited therein.) It is also well-settled law that questions propounded to a witness on preliminary matters, which neither prove nor disprove an issue in the case, are an exception to the rule regarding leading questions. (See 3 Wigmore on Evidence, §§ 770, 775 [Chadbourn Rev. 1970].)
The appellant objects to two questions which related to standard police procedure. They pertained to preliminary matters which were not seriously in dispute and no abuse of the exercise of the trial court’s power of discretion has been shown.
The appellant also argues the trial court erred in failing to sustain his objection to the admissibility of statements he made at the time of his arrest and to the admissibility of the fruits of those statements. He contends he had been sniffing glue during the day and his statements were not voluntarily given.
Officer Espinoza testified that following the arrest and Miranda warnings the appellant gave a detailed account of the crime and produced the knives he and Loggins had used. He stated the appellant appeared to be normal when he related the events of the day in detail. The appellant, on the other hand, testified he did not recall speaking to Officer Espinoza.
Uncoerced statements made to police officers by a defendant who has been given warnings as to his constitutional rights are admissible as evidence at his trial. (See State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 [1977] and cases cited therein.) Furthermore, the defendant’s use of drugs does not prevent the trial court from finding statements or a confession to have been freely and voluntarily given. (See State v. Young, 220 Kan. 541, 548, 552 P.2d 905 [1976] and cases cited therein.) Here the trial court was faced with an apparent conflict in the evidence. It considered the totality of the circumstances and determined the statements were voluntary. We find no error.
Finally, the appellant contends the evidence was insufficient to support the verdict.
The issue on áppeal in a criminal case is not whether the evidence establishes guilt beyond a reasonable doubt, but whether there is sufficient evidence to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state. On appeal this court will not reweigh the evidence and pass upon the credibility of the witnesses. Our review is limited to ascertaining whether there is a basis for a reasonable inference of guilt. (See State v. Howell, 223 Kan. 282, 286, 573 P.2d 1003 [1977] and State v. Crawford, 223 Kan. 127, 573 P.2d 982 [1977].)
The^record reflects more than sufficient evidence to sustain the appellant’s convictions. Miss P. testified the appellant took her at knifepoint to a secluded area under a bridge where she undressed following his orders. She testified the appellant, who was not her husband, undressed and lay on top of her. Thereafter, Miss P.’s testimony was that he raped her. Officer Espinoza testified the appellant admitted he was with Michael Loggins, and they took two girls to an area underneath a bridge where the appellant had intercourse with one of the girls. Further, laboratory tests on Miss P.’s underwear revealed the presence of seminal fluid. Thus, the evidence was more than sufficient to sustain each conviction.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from an order of the Leavenworth district court dissolving a writ of habeas corpus filed by Alonzo Victor King, a/k/a Gun Doe (petitioner-appellant). The petitioner, a former inmate of the federal penitentiary at Leavenworth, was released pursuant to extradition papers to the custody of the sheriff seeking his extradition to the State of South Dakota.
The petitioner challenges the admission of certain evidence at his extradition hearing and contends he was not substantially charged with committing a crime under the laws of South Dakota.
Briefly summarized, on August 30, 1973, an indictment was issued by a Custer County, South Dakota grand jury charging “Gun Doe” with the crimes of riot and assault with a dangerous weapon. The petitioner was subsequently released from the United States Penitentiary at Leavenworth, Kansas on January 5, 1976, and was arrested by the Leavenworth County Sheriff, Dan Hawes, the same day.
On January 15, 1976, the petitioner filed an application for a writ of habeas corpus which was denied by the trial court on January 21,1976. Six days later the attorney general of the State of South Dakota sent a request for extradition of “Gun Doe” a/k/a Alonzo King to the governor of the State of Kansas, and a governor’s warrant of arrest was then issued on February 25, 1976.
The petitioner filed a second application for a writ of habeas corpus on March 12, 1976, and a hearing was held on the application on March 26, 1976. The trial court found the warrant issued by the governor of Kansas was valid, and on April 1, 1976, judgment was entered dissolving the writ of habeas corpus. Thereafter, the petitioner duly perfected this appeal.
On appeal the petitioner challenges whether his identity was sufficiently established. He contends there is no proof he is the “Gun Doe” named in the South Dakota requisition warrant or the Kansas rendition warrant.
To require and justify the rendition of an accused by the asylum state to the demanding state it must be shown that he is (1) the individual named in the writ of extradition; (2) charged, in accordance with statutory authority, with a crime in the demanding state; and (3) a fugitive, which is to say that the accused was in the demanding state when the alleged crime was committed. (Hyatt v. Corkran, 188 U.S. 691, 709, 47 L.Ed. 657, 23 S.Ct. 456 [1903]; Price v. Pitchess, 556 F.2d 926 [9th Cir. 1977], cert. denied, 434 U.S. 965, 54 L.Ed.2d 451, 98 S.Ct. 504; United States ex rel. Tyler v. Henderson, 453 F.2d 790, 793 [5th Cir. 1971]; United States v. Flood, 374 F.2d 554, 556 [2d Cir. 1967]; Johnson v. Matthews, 182 F.2d 677, 679 [D.C. Cir. 1950], cert. denied, 340 U.S. 828, 95 L.Ed. 608, 71 S.Ct. 65 [1950]; Person v. Morrow, 108 F.2d 838 [10th Cir. 1940]; Freedman v. United States, 437 F. Supp. 1252 [N.D. Ga. 1977]; Thomas v. Levi, 422 F. Supp. 1027, 1031, n. 12 [E.D. Pa. 1976]; Garrison v. Smith, 413 F. Supp. 747, 752 [N.D. Miss. 1976]; Davis v. Behagen, 321 F. Supp. 1216, 1217 [S.D. N.Y. 1970]; In re Dean, 254 A.2d 242 [Del. Sup. 1969]; State v. Devine, 342 So. 2d 103 [Fla. App. 1977]; In re Extradition of Leonard, 27 Ill. App. 3d 870, 327 N.E.2d 480 [1975]; Poulin v. Bonenfant, 251 A.2d 436, 438 [Me. 1969]; State ex rel. Wagner v. Hedman, 292 Minn. 358, 195 N.W.2d 420 [1972]; and Salvail v. Sharkey, 108 R.I. 63, 66, 271 A.2d 814 [1970].)
Of course, when an accused challenges extradition in a habeas corpus proceeding brought under the Uniform Criminal Extradition Act, the governor’s warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the prima facie case made by the governor’s warrant. (Greenbaum v. Darr, 220 Kan. 525, 527, 552 P.2d 993 [1976]; McCullough v. Darr, 219 Kan. 477, 480-81, 548 P.2d 1245 [1976]; Dean v. Sheriff of Leavenworth County, 217 Kan. 669, 538 P.2d 725 [1975]; see also Wilbanks v. State, 224 Kan. 66, 81, 579 P.2d 132 [1978].) Here the petitioner contends the South Dakota indictment charging “Gun Doe” and the other extradition papers charging “Alonzo Victor King a/k/a Gun Doe” are significantly different. Other jurisdictions have held if the difference in name on the indictment and extradition papers is significant, its only effect is to shift the burden of proof as to identity to the state. (See State ex rel. Myers v. Allen, 83 Fla. 655, 92 So. 155 [1922]; In re Extradition of Leonard, supra at 874; The People v. Meyering, 358 Ill. 589, 193 N.E. 495 [1934]; Poulin v. Bonenfant, supra at 440; Salvail v. Sharkey, supra at 67; and Annot., 93 A.L.R.2d 912, 922-24 [1964].)
Therefore, the habeas corpus proceeding must be examined in order to determine whether identity was established. The petitioner contends the introduction of a package of materials containing an affidavit and photographs attached to the requisition was irregular. He suggests the witnesses should have been available in person to testify. This argument overlooks the fact that in a habeas corpus proceeding, the strict rules of evidence are not applicable to test the legality of arrest and extradition. (See United States v. Flood, supra at 557-58; Sumner v. Lovellette, 253 Ind. 675, 679, 256 N.E.2d 681 [1970]; Notter v. Beasley, Sheriff etc., 240 Ind. 631, 166 N.E.2d 643, 93 A.L.R.2d 905 [1960]; Campbell v. State, 10 Md. App. 406, 413, 271 A.2d 190 [1970]; Shields v. State of Maryland, 257 Md. 384, 390, 263 A.2d 565 [1970]; Salvail v. Sharkey, supra at 70; McLaughlin v. State, 512 S.W.2d 657 [Tenn. Crim. 1974]; Ex Parte Martinez, 530 S.W.2d 578, 581 [Tex. Crim. 1975]; and Annot., 93 A.L.R.2d 912, 921-22 [1964].)
Here sufficient evidence existed to find the petitioner was the same “Gun Doe” whose name appeared in the original indictment. He identified himself at the proceeding as the man in the photograph which accompanied the indictment. The affidavit of Bernard Christenson stated the man in the photograph committed the assault and participated in the riots. These facts distinguish this case from Lee Gim Bor v. Ferrari, 55 F.2d 86 (1st Cir. 1932), where an indictment describing the accused by “John Doe” without stating his name, race, occupation, place of employment, or exact residence was held insufficient to authorize extradition. Thus, the state’s proof the petitioner was in fact the person who had been arrested and indicted for the crimes charged in South Dakota was convincing and unrefuted.
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Per Curiam:
This is an appeal from a judgment entered in favor of plaintiff and against defendant hospital in the amount of $9,000.00 following a bench trial in a malpractice action.
Ruby B. Conly (now deceased from causes unrelated to this action) was admitted to defendant hospital on October 8, 1973, after an episode in which she had become weak and had fallen in her home. Her physician, Dr. L. F. Podrebarac, made a diagnosis of hypertension, cardiovascular disease, and a mild cerebral accident on the left side. Ms. Conly was 75 years old at the time of her hospital admission. She had been hospitalized the previous month for similar problems. Dr. Podrebarac testified she was “weak as a cat” upon admission. During her hospitalization she was weak and nauseous. Upon her physician’s instructions, she was provided with a walker in the hospital. X-rays were ordered of her colon and kidneys (intravenous pyelogram). The X-ray requisition form was filled out by a nurse in the employ of the defendant hospital. On the requisition form, space was allowed for “History” but no information pertaining to her history was provided. Preparatory for the radiological studies, Ms. Conly received four enemas during the previous evening. Two more enemas were administered at 5:00 A.M., on the day of X-rays. The patient complained of weakness and nausea. Dramamine was given for nausea at 1:30 A.M., the day of the X-rays. Ms. Conly was taken to the radiology department in a wheelchair and she walked to the X-ray table. Portions of the X-rays were made with the patient in a horizontal position. Then the table was tilted to a vertical position. At this time Ms. Conly fell from the table and was injured. The fall occurred on October 22, 1973.
The defendant hospital contends that the evidence failed to establish that it breached any duty owed to Ms. Conly. The plaintiff contends and the trial court concluded that the hospital’s failure to advise the radiology department of Ms. Conly’s known weakened condition and history was the proximate cause of her fall and resulting injury.
The plaintiff did not present expert testimony that there is a duty to include this type of information on the X-ray requisition form or that the defendant hospital violated any duty in failing to provide the radiology department with such information. The radiologist in charge of taking the X-rays of Ms. Conly testified patient history is helpful but not indispensable, and that an orderly or two can stand near a weak patient to prevent falls.
A private hospital is bound to exercise toward a patient such reasonable care as the patient’s known condition may require, the degree of care being in proportion to the patient’s known physical and mental ailments. The extent and character of the care that a hospital owes its patients depends upon the circumstances of the particular case, and the measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in the community. Hiatt v. Groce, 215 Kan. 14, Syl. 1, 523 P.2d 320 (1974); Goheen v. Graber, 181 Kan. 107, Syl. 3, 309 P.2d 636 (1957).
There is a common knowledge exception to the rule requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. Webb v. Lungstrum, 223 Kan. 487, Syl. 3, 575 P.2d 22 (1978).
This “common knowledge exception” was stated in a different manner in Hiatt as follows:
“Expert medical testimony is ordinarily required to establish negligence on the part of either a physician or a hospital in their care and treatment of a patient, unless the medical procedures employed are so patently bad that negligence or lack of skill is manifest to a lay observer or other acts complained of could be regarded as negligent by applying the common knowledge and experience of mankind.” (Syl. 2.)
A factually similar case is Washington Hospital Center v. Butler, 384 F.2d 331 (D.C. Cir. 1967). In Washington, the patient was injured in a fall from an X-ray table. She was a hospital patient and had experienced recent weakness, dizziness, and near-syncopal episodes. An intravenous pyelogram of her kidneys was ordered. She was moved to the radiology department in a wheelchair and walked to the table. After a series of X-rays in the horizontal position, her feet were placed against the footboard, she was asked if she could stand, replied she could, and was rotated into a vertical position. She was left standing without any artificial support while the technician went behind the shield to take the pictures. At this point the patient fell. The requisition form contained a space for patient’s history. The form contained the notation “diabetic complications” but made no reference to the symptoms of weakness, dizziness, etc., recorded on her chart. Only the requisition form went with her to the radiology department. There was no evidence presented as to the medical practice in the community regarding the kind of information inserted in a radiological requisition or the precautions taken before vertical irradiation. The circuit court applied a rule that there was no need for expert testimony to determine that the acts or omissions of medical professionals can be found to fall below a standard of reasonably prudent care and held:
“The jury could have found that the hospital contributed to Mrs. Butler’s tumble by failing to adequately inform the radiologists of the facts contained in its records suggesting a proneness to black out. While its nurse did insert in the requisition ‘diabetes with complications’ or ‘diabetic complications’, a notation the significance of which laymen would not be expected to comprehend on their own, the jury was at liberty to resort to the uncontradicted expert view expressed at trial that not all, but only some, diabetics are predisposed to loss of consciousness. Since the requisition at most communicated to the radiologists the fact that as a diabetic Mrs. Butler might or might not be so affected, while the chart contained data denoting plainly that she was, the jury could properly conclude that a reasonably prudent person would have been more specific than the hospital, and that had it been the fall ipight not have occurred.” (384 F.2d at 337.)
This case at hand is a stronger plaintiff’s case than Washington in that at least some history was provided in Washington that could have alerted the radiology department to the patient’s increased risk of falling.
Where the trial court’s findings are supported by substantial competent evidence they are conclusive on appeal. McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, 561 P.2d 832 (1977); Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, 549 P.2d 927 (1976).
The common knowledge exception to the rule requiring expert testimony in malpractice cases was applicable in the case at hand. The trial court’s finding of negligence on the part of the defendant hospital was supported by substantial competent evidence and will not be disturbed on appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Therell Bright Warren, from his conviction of aggravated kidnapping, K.S.A. 21-3421, and his subsequent sentence of life imprisonment.
The determinative issue is whether the trial court erred in failing to discharge the defendant upon his motion pursuant to K.S.A. 1977 Supp. 22-3402, because the defendant did not receive a speedy trial.
The dates pertinent to this decision are as follows: The offense was committed on the evening of June 30, 1976. Warren was arrested on the following day. He was arraigned before the district judge on August 26, 1976. Counsel was appointed; a plea of not guilty was entered; and the defendant requested a jury trial. On September 8, on defendant’s motion, the court ordered him committed for a psychiatric examination in order to determine his competency to stand trial pursuant to K.S.A. 1977 Supp. 22-3302. Defendant filed a notice that he would rely on the defense of insanity.
Defendant was examined at the Hertzler Clinic, and a final report of the psychiatrist (in which he concluded that Warren was competent to stand trial), was delivered to the court on October 7. Nothing further occurred until December 6, when the defendant asked that he be examined at the Topeka State Hospital for the purpose of determining his sanity at the time the offense was committed. Under order of the court the defendant was taken to the Topeka State Hospital on December 8; he was returned to Harvey County on that same date. He was again taken to the Topeka State Hospital on December 21, and was returned to Harvey County on the following day. The final report from Topeka State Hospital dated January 7, 1977, was received by the district judge on January 8 or January 10, 1977. On February 2, appointed counsel withdrew and Michael S. Sizemore was appointed to represent the defendant. Mr. Sizemore asked that the matter be continued until February 14, 1977. On that date, the opening day of the February term, the defendant requested a jury trial. On April 8, counsel were notified that a pretrial conference was scheduled for April 13. Mr. Sizemore had a conflict, so he requested that the matter be set over until the week of April 18. Pretrial was held on May 9. On May 12, defendant moved for a dismissal for want of a speedy trial in violation of K.S.A. 1977 Supp. 22-3402. The motion was denied on May 17, and trial commenced June 7, 1977.
K.S.A. 1977 Supp. 22-3402 provides in part as follows:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(a) The defendant is incompetent to stand trial;
“(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
Warren was in custody for 285 days from the date of arraignment until the commencement of trial. During that time, the defendant may properly be charged with causing or consenting to delay from September 8 to October 7, a total of 29 days, for the purpose of a competency examination; from December 6, 1976 to January 10, 1977, a total of 35 days, for the purpose of a further psychiatric examination; from February 2 to February 14, 1977, a period of 12 days, a continuance at the request of counsel; and from April 13 to April 18, 1977, a period of 5 days, at the request of counsel. Thus a total of 81 days is chargeable to the defendant.
Delays which are the result of the application or the fault of the defendant are not to be counted in computing the statutory period. State v. Powell, 215 Kan. 624, 527 P.2d 1063 (1974); State v. Pendergrass, 215 Kan. 806, 528 P.2d 1190 (1974); State v. Sherman, 217 Kan. 326, 536 P.2d 1373 (1974); State v. Lewis, 220 Kan. 791, 556 P.2d 888 (1976); State v. McClain, 224 Kan. 464, 580 P.2d 1334 (1978).
It is the obligation of the state, and not of the defendant, to see that an accused who is in custody is provided with a speedy trial in conformity with both the constitutional and the statutory mandates. A defendant has no duty to bring himself to trial; that duty rests upon the state. State v. Fink, 217 Kan. 671, 679, 538 P.2d 1390 (1975); State v. Lewis, 220 Kan. 791, 556 P.2d 888 (1976); and State v. Pierson, 222 Kan. 498, 502, 565 P.2d 270 (1977). Here, so far as the record before us discloses, the state made no effort to bring the defendant to trial within the 90-day period prescribed by law. Under the legislative mandate, the defendant is “entitled to be discharged from further liability to be tried for the crime charged . . .”
The state contends, first, that all of the delay from September 8, 1976, to the present day is of the defendant’s own making because he moved for a psychiatric examination for the purpose of determining his competency, and thereafter failed to secure a judicial determination of the question. This argument deserves little discussion. The competency report was received on October 7, 1976. Defendant was not obliged to pursue the matter further, and to seek a judicial determination of his competency. As we held in State v. Powell, 215 Kan. 624, 527 P.2d 1063 (1974), the time between the filing of a motion for a psychiatric examination and the date on which the psychiatrist’s report is received are properly chargeable against the defendant. Although Powell involved a psychiatric examination in connection with a proposed insanity defense and not an examinaton to determine competency, the principle is the same. The state, and not the defendant, has the obligation to proceed.
Finally, the state contends that K.S.A. 1977 Supp. 22-3402 is unconstitutional in that it constitutes a legislative encroachment on the judiciary and violates the separation of powers doctrine. The sole support for this contention is United States v. Howard, 440 F. Supp. 1106 (1977), wherein a federal district judge held the federal speedy trial act, 18 U.S.C.A. § 3161, et seq., unconstitutional on that ground. Howard has not been followed in any subsequent state or federal jurisdiction, and we do not find its rationale persuasive. The purpose of the statute is to implement and define the constitutional guarantee of a speedy trial, as we observed in State v. Sanders, 209 Kan. 231, 233, 495 P.2d 1023 (1972); State v. Lewis, supra; and State v. Pendergrass, supra. We find no constitutional transgression in the statute.
Where the state fails to bring the accused to trial within the time limits fixed by statute, and where the delay is not due to the application or fault of the defendant, or to extensions of time as provided in K.S.A. 1977 Supp. 22-3402(3), we have not hesitated to enforce the legislative mandate and order the defendant discharged. State v. Cox, 215 Kan. 803, 528 P.2d 1226 (1974); State v. Sanders, supra.
Under the statute, the state had 90 days in which to bring this defendant to trial. Excluding days charged to the defendant, the 90-day period expired on February 2, 1977. The state kept the defendant in custody for over twice the 90 days allowable, before trial commenced on June 7, 1977.
The state made no effort to comply with the statute. The court’s trial docket is not shown to have been crowded. The state could have complied with the statute, had it desired to do so.
The judgment is reversed with directions to discharge the defendant. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Harold Murrell from his conviction by a jury of four felony offenses, aggravated robbery, K.S.A. 21-3427, aggravated assault, K.S.A. 21-3410, and unlawful possession of a firearm, K.S.A. 21-4204(b), all committed on November 26, 1975; and unlawful possession of a firearm, K.S.A. 21-4204(fe), committed at the time of his arrest in September, 1976. He was acquitted of felony murder. The habitual criminal act, K.S.A. 21-4504(2) (since amended by Laws of Kansas, 1978, ch. 120, § 4, effective January 1, 1979) was invoked, and Murrell was sentenced to imprisonment for not less than 45 years nor more than life for aggravated robbery; for not less than nine years nor more than life for aggravated assault; and for not less than nine years nor more than life for each firearms conviction. All sentences are being served consecutively.
Defendant complains of various rulings of the trial court which the defendant claims constitute prejudicial error. We shall discuss each of these claims separately.
The first three offenses arose out of an armed robbery which took place at the G & R Market in Wichita, Kansas, on November 26, 1975. George Immich, the owner, and Terry Simpson, an employee, were working in the store. Immich was at the cash register and Simpson was shelving groceries in an aisle some distance away.
Two black men entered the store; the younger of the two purchased a package of cigarettes; the other, identified as Murrell, pulled a snub-nosed revolver from his pocket and pointed it at Immich’s head. The robbers ordered Simpson to lie down, and he complied. The younger man then took money from Immich’s person and from the cash register. Both men fled on foot. Immich grabbed his own revolver and gave chase; Murrell shot at Immich; Immich returned the fire and apparently struck the younger robber in the hip; Murrell fired again at Immich; and the robbers then made good their escape on foot, with Murrell helping the younger man. The police found the younger robber, identified as Joe Clay, lying in the snow about two blocks from the market. Clay had been shot in the hip and also in the head. The gunshot wound in his head was determined to be the cause of his death, which occurred on November 27, 1975.
Shortly after the robbery, both Simpson and Immich were shown numerous photographs, including pictures of Murrell, but neither was able to identify the robber who held the gun.
Murrell was arrested on other charges on September 21, 1976, some ten months after the robbery. A .38 caliber Smith & Wesson revolver was found in Murrell’s hotel room at the time of his arrest. His picture and a story about his arrest were published in a Wichita newspaper, and both Simpson and Immich saw the article. A few days later, both men attended a lineup held by Wichita police, and both identified Murrell as the man who held the gun. A complaint was then filed, charging Murrell with aggravated robbery, aggravated assault, two counts of unlawful possession of a firearm, and the murder of Joe Clay.
Murrell first contends that the trial court erred in refusing to let him use a prior inconsistent written statement of a prosecution witness, Terry Simpson, either during cross-examination or by introduction of the statement into evidence. Simpson testified on direct examination that he got a good look at the man with the gun, and he identified Murrell as that man. Before trial, defense counsel went to Simpson’s home and interviewed him. Simpson came to counsel’s office a few days later and signed a written statement which counsel had dictated from notes made during the interview.
At trial, Simpson acknowledged that the notarized signature on the written statement was his; he recalled the interview; but upon reading the statement, he testified that he did not remember the contents of the statement and he did not remember reading the statement before he signed it. Counsel attempted to use the document in cross-examination, but objections by the state were sustained. Counsel then attempted to introduce the statement into evidence; again, the state’s objections were sustained. The defense called as witnesses the secretary who typed and notarized the statement, and an investigator who was present during the interview by counsel. Both testified that Simpson read the statement before he signed it; and the investigator testified that the document accurately reflected what Simpson said during the interview. The trial court ruled that because the witness testified that he did not remember what he said in the statement, and because he testified that he could not recall reading it before he signed it, no proper foundation was laid, and the statement could not be received in evidence or be used for any purpose in the trial.
Careful attorneys for both sides customarily take statements from potential witnesses for three purposes: to learn what the witness knows about the facts; to refresh the witness’s recollection in case he forgets or deviates materially from his prior story during his testimony; and to impeach, if the witness persists in the deviation. The trial court’s ruling would defeat the latter purposes, for if the witness testifies from the stand that he does not recall the content of the statement, or whether he read it before signing it, the statement could not be used for those purposes. Such is not our rule.
K.S.A. 60-422 provides:
“As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement;”
In Smith v. Blakey, Administrator; 213 Kan. 91, 515 P.2d 1062 (1973), we reviewed a trial court’s ruling that a foundation needed to be laid for prior inconsistent written statements, with which defense counsel attempted to impeach a witness. In Syllabus ¶ 6 we said: “A foundation need not be established to use a prior written statement for impeaching a witness except as provided in K.S.A. 60-422.” We quoted the statute in our opinion, and then said:
“The record reveals the time and place of taking the prior statement and the name of the person addressed were disclosed. Taken as a whole, we are satisfied the court erred in unduly restricting defendant’s impeachment of this witness.” (p. 99.)
Similarly, in State v. Gauger, 200 Kan. 515, 438 P.2d 455 (1968) prior inconsistent written statements were used by the prosecution to impeach defense witnesses, but neither statement was offered or received in evidence. On appeal, defendant contended that it was error for the county attorney to read the statements to the jury in his closing argument. We said:
“By Garrett in effect admitting that he made the portions of the statement read to him, and that it was perhaps inconsistent with his testimony, there was no necessity to introduce the statement itself for impeachment purposes. (Lewis v. State, 4 Kan. 296; Gard, Kansas Code of Civil Procedure § 422.) Therefore, the county attorney’s argument relative to Garrett’s testimony was within permissible bounds.
“The objection to the argument concerning the inconsistency of Nason’s prior statement is more serious, for he did not admit the specific inconsistency. In fact, Nason testified he didn’t remember what he had told the police. After Nason’s so testifying, it was incumbent on the county attorney to introduce the prior statement into evidence or produce evidence of its contents if he wished to pursue the matter in his closing argument to the jury. Where the impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof, or will neither admit nor deny the same, there is ample foundation for admitting the statement itself or at least the impeaching portion thereof into evidence. [Citations omitted.] It is well settled that prior inconsistent statements made by a witness out of court may be shown to impair his credibility.” (Emphasis supplied.) (p. 520.)
In the case before us, the witness was first shown the statement and asked to read it silently. He was told the time and place of the interview, and that the statement was taken by defendant’s attorney. Counsel more than met the conditions which might have been imposed by the trial court under K.S.A. 60-422(a). Clearly, the trial court erred in refusing to permit the defense to impeach the witness by use of the written statement.
Also, since the witness did not recall the content of the statement, and since the witness had an opportunity to identify, explain or deny the statement while he was testifying, there was ample foundation for the admission of the statement in evidence under the rationale of Gauger, 200 Kan. at 520, and under K.S.A. 60-422(¿>). The trial court erred in excluding it.
We must next decide whether the errors were prejudicial, since we must “disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining.” K.S.A. 60-2105. Appellant has the burden not only to establish error, but to establish that the error resulted in substantial prejudice to his rights. State v. Holt, 223 Kan. 34, 45, 574 P.2d 152 (1977). Where there is a wealth of overwhelming and compelling evidence, however, errors in the admission or the exclusion of evidence must be deemed harmless. Holt, at 45.
The principal evidence that Murrell robbed the G & R Market at gunpoint and committed the other offenses arising from that occurrence is the testimony of the two men who were present— George Immich and Terry Simpson. Neither could identify Murrell from photographs immediately after the robbery. Both first identified him ten months later at a police lineup, after reading about Murrell and after seeing his picture in the newspapers. The written statement contradicts Simpson’s testimony in several crucial areas, and could well have influenced the jury as to his credibility. Although the investigator testified as to the oral statements made by Simpson, we cannot say that his testimony had the same effect on the jury as would Simpson’s written statement, signed and sworn to before a notary public.
The state founded its case primarily upon the identificatory testimony of Immich and Simpson, both of whom made a positive in-court identification of Murrell. In addition, Joe Clay’s mother testified that she had seen Murrell and her son together on two prior occasions, and there was evidence that Clay, Múrrell and a third man robbed a Hutchinson, Kansas, market about two weeks before the G & R robbery. The revolver Murrell had in his hotel room at the time of his arrest was not shown to be the same firearm used in the G & R robbery, or in the shooting of Joe Clay. Clearly, the evidence implicating Murrell, while substantial, was not “overwhelming and compelling.” Simpson’s testimony was critical. We conclude that the error in excluding Simpson’s statement was not harmless, but resulted in substantial prejudice to the defendant. A new trial must be granted.
Defendant next contends that the trial court erred in restricting defense counsel’s cross-examination of George Immich. Counsel attempted to show that Immich was “exposed to people who were locked up” while he was in the military service. Defendant contends that this line of questioning would tend to show bias on the part of the witness. The court sustained the state’s objection, saying:
“I’ll let you go into areas affecting credibility but not to areas of bias . . . bias does not mean a person is not credible.
“[B]ias does not in and of itself affect credibility and unless you can convince me that you are attacking the man’s credibility I’m not going to allow questions, because he has a hard light towards anything doesn’t mean he’s not an honest and trustworthy or truthful man.”
Bias and prejudice are often used interchangeably. Both connote prejudgment, a leaning towards one side, and partiality. One of the principal purposes of cross-examination is to explore areas of possible bias, prejudice, hostility, interest, or relationship, all of which may affect the credibility of the witness. The fact that the witness may have had some exposure to prisoners in military stockades may not have affected his attitude towards this defendant and his testimony in this case; on the other hand, such experience could have had some effect, particularly in view of defendant’s extensive prior criminal record.
In State v. Montanez, 215 Kan. 67, 523 P.2d 410 (1974), we said:
“Bias, interest or improper motives of a witness may always be shown in order to place his testimony in proper perspective (State v. Pierson, 202 Kan. 297, 301, 448 P.2d 30). Only recently in a confrontation case the federal supreme court iterated its recognition that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination (Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105).” (p. 72.)
Although the extent of cross-examination in this area lies within the sound discretion of the trial court, we hold that the trial court was in this instance unduly restrictive. Immich was an important and critical witness on the subject of identification, the principal issue in dispute. Greater latitude should have been allowed.
Murrell contends that the evidence was insufficient to support the jury’s verdict, and that the trial court erred in denying defendant’s motion for acquittal at the close of the evidence. In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonáble inference of guilt when viewed in the light most favorable to the state. State v. Berry, 223 Kan. 566, Syl. ¶ 3, 575 P.2d 543 (1978). Upon a review of the record before us we hold that the evidence was clearly sufficient. The tests to be applied by the trial court when ruling on a motion for acquittal were set out in the recent case of State v. Holt, 221 Kan. 696, 700, 561 P.2d 435 (1977) and need not be repeated here. The trial court did not err in its application of those tests. This point lacks merit.
Next, appellant contends that the trial court erred in admitting evidence of the robbery of a Hutchinson market by Murrell, Clay, and another, some 16 days prior to the G & R market robbery. The evidence was admitted under K.S.A. 60-455 to show identity. The two offenses were committed in a substantially similar manner. The trial judge first held a hearing outside the presence of the jury. He found that the evidence was relevant to prove identity, which was in issue, and that the probative value of the evidence outweighs any tendency it might have to prejudice the jury. He then admitted the evidence under a proper limiting instruction.
Murrell attacks only the court’s finding that the probative value of the evidence outweighs its prejudicial effect, in view of what he characterizes as the state’s “weak” identification testimony. The latter was the testimony of Immich and Simpson, discussed earlier in this opinion; it was not necessarily “weak.” We hold that the trial court followed the required procedure and properly applied the balancing test. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). The trial court did not abuse its discretion in admitting evidence of the earlier, similar robbery.
Defendant contends that inflammatory remarks by the prosecutor in his closing argument require a reversal of defendant’s conviction. The closing portion of the argument reads:
“When he got up on the stand the defendant told you, he said his occupation, he was a hustler and a gambler. ... I think, Ladies and Gentlemen, that after you deliberate and after you follow the law and after you find the truth, you will find that the defendant, his occupation is, in fact, a hustler, is in fact a gambler, but I think you will also be able to add two more; that he’s an armed robber and a cold-blooded killer. I believe that.
“MR. SCIMECA: Objection to that remark, Your Honor, as not being founded on the evidence.
“It’s highly inflammatory too.
“THE COURT: I would instruct the jury that they are to disregard any statement tendered that tends to prejudice, and that the comments of the attorneys only be considered in the light of the evidence as you remember it.”
It is the rule in this jurisdiction that improper remarks by the prosecutor during final argument do not constitute reversible error where the jury is admonished to disregard them, unless the remarks are so prejudicial as to be incurable. State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974). See also State v. Murrell, 215 Kan. 10, 523 P.2d 348 (1974); State v. Norwood, 217 Kan. 150, 535 P.2d 996 (1975); State v. Nelson, 223 Kan. 572, 575 P.2d 547 (1978); State v. Dorsey, 224 Kan. 152, Syl. ¶¶ 1 & 2, 578 P.2d 261 (1978); State v. Smith & Miller, 224 Kan. 662, 585 P.2d 1006 (1978).
It is improper for a prosecutor to inject into closing argument his personal belief in the guilt of the defendant (see State v. McClain, 216 Kan. 602, 607, 533 P.2d 1277 [1975]); but the statement before us does not do that. Taken in context, the prosecutor’s statement, “I believe that,” at the close of his argument, refers back to his assertion that “I think . . . you will find that the defendant ... is ... a hustler ... a gambler ... an armed robber and a coldblooded killer.”
Clearly, the remarks were not “so prejudicial as to be incurable.” The court acted promptly, and no prejudice resulted.
We have considered the other points raised, and find no merit in them.
The judgment is affirmed as to defendant’s conviction and sentence for unlawful possession of a firearm at the time of his arrest in September, 1976, since that judgment is not affected by any trial errors; the judgment is reversed as to the other offenses, with directions to grant a new trial. | [
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WHEREAS, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by George W. Materi, and
WHEREAS, Following a full hearing as to such complaint, the State Board of Law Examiners found that George W. Materi, Washington, Kansas, was on September 23, 1977, by the United States District Court for the District of Kansas, found guilty of failing to file a federal income tax return for the calendar year of 1973, and such failure constituted misconduct requiring the imposition of discipline under the provisions of DR 1-102 (A) of the Code of Professional Responsibility (220 Kan. cix), and
WHEREAS, The State Board of Law Examiners has made a written recommendation to this Court that said George W. Materi be disciplined by “Public Censure” as provided by Rule 203 (a) (3) (220 Kan. lxxxiii), and
WHEREAS, In accordance with Rule 213 (c) (220 Kan. lxxxviii), a copy of the report, findings and recommendations of the Board was mailed to respondent on June 27, 1978, along with a citation directing respondent to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
WHEREAS, Since more than twenty days passed after the citation was mailed, and no response was received, said George W. Materi was notified to appear before this Court on September 22, 1978, for the imposition of discipline, pursuant to Rule 213 (d) (220 Kan. lxxxviii), and
WHEREAS, On the 22nd day of September, 1978, after notice to respondent, a hearing was held before the Court and respondent was permitted to make a statement regarding the discipline to be imposed. The State of Kansas appeared by Philip A. Harley, assistant attorney general, and respondent appeared in person, and
WHEREAS, Upon consideration of the record and the statement by respondent, and being fully advised in the premises, the Court accepts the report, findings and recommendations of the State Board of Law Examiners.
By Order of the Court, dated this 22nd day of September, 1978.
It is therefore, by the Court Considered, Ordered and Adjudged that the said George W. Materi be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this ORDER OF PUBLIC CENSURE be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Prager, J.:
This case involved appeals in two criminal actions which were consolidated in this court and argued together. They concern the same basic legal issues — the constitutionality and interpretation of the mandatory sentencing statute (K.S.A. 1976 Supp. 21-4618). We shall consider each appeal separately.
DeCourcy and Carr
In case No. 49,381 the defendants, Sean Terrence DeCourcy and Kenneth Eugene Carr, have appealed from sentences imposed on convictions of robbery (K.S.A. 21-3426). In the district court, both defendants entered pleas of not guilty, stipulated as to the facts of the robbery, and were found guilty by the trial court on the basis of the stipulation. The stipulated facts showed that on April 7, 1977, the defendants, DeCourcy and Carr, entered a tavern in Johnson County, Kansas, played pool, and drank beer for approximately one hour. While in the tavern, the defendants discussed robbing the place. DeCourcy informed Carr that he had a rifle. DeCourcy then left the tavern and returned with a .22-cal-iber rifle to be used during the robbery. DeCourcy concealed the rifle under his full-length coat. After further discussion between the defendants, DeCourcy approached the manager of the tavern, exhibited the firearm, and announced that a robbery was in progress. DeCourcy and Carr then obtained money from the cash register. The manager was ordered to lie facedown on the floor. DeCourcy and Carr then fled the tavern in an automobile and went to Carr’s house, where Carr placed the rifle in a crawl space underneath his house. It was stipulated that, although the holdup was a joint enterprise between DeCourcy and Carr, only De-Courcy had possession of a firearm during the commission of the offense. Following their convictions, each of the defendants made application for probation. On July 14, 1977, the defendants appeared before the trial court for sentencing. The state requested that the court impose the mandatory minimum sentence pursuant to K.S.A. 1976 Supp. 21-4618. The district court denied the defendants’ application for probation without a hearing, holding that a mandatory minimum sentence was required to be served under K.S.A. 1976 Supp. 21-4618. The defendants have appealed. They do not challenge the validity of their convictions but attack the imposition of a mandatory minimum sentence under K.S.A. 1976 Supp. 21-4618 and the summary denial of their applications for probation.
Both DeCourcy and Carr challenge the constitutionality of K.S.A. 1976 Supp. 21-4618 on the grounds that the statute denies them equal protection of the law under the Kansas and the United States Constitutions. This same constitutional issue was raised and determined adversely to the position of these defendants in State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978) and State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978). We adhere to our decisions in those cases and, therefore, find this point to be without merit.
Defendant DeCourcy also challenges the constitutionality of K.S.A. 1976 Supp. 21-4618 as a violation of his constitutional right to due process of law under the United States Constitution. In Freeman we addressed this same basic issue and upheld the statute. In the opinion we stated that the fixing and prescribing of penalties for violating the criminal statutes of this state is a legislative function. We further held that the deterrence of the use of guns in committing crimes against persons (Article 34 crimes) is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal. On this appeal the defendant DeCourcy argues that due process of law was violated since he was not afforded a probation hearing prior to the imposition of sentence. Probation is a matter of legislative grace and is granted as a privilege, not as a fundamental right. (Thomas v. United States, 327 F.2d 795 [10th Cir.], cert. den. 377 U.S. 1000, 12 L.Ed.2d 1051, 84 S.Ct. 1936 [1964].) Of course, once probation has been granted, it may not be revoked without notice to the probationer and an opportunity to be heard. (K.S.A. 22-3716.) Under K.S.A. 1976 Supp. 21-4618, the serving of the minimum statutory sentence is mandatory upon a finding by the sentencing court that a firearm was used in the commission of an Article 34 offense. Here the district court was without authority to grant probation. Since the defendant De-Courcy had no right to probation in this case, it was not a violation of due process of law for the district court to deny him a hearing on his application for probation.
Defendant DeCourcy next maintains that the trial court erred in finding that he had used a firearm in the commission of the robbery within the meaning of K.S.A. 1976 Supp. 21-4618. De-Courcy argues that although he had possession of a firearm and exhibited it to the manager of the tavern, he never pointed the gun at the manager, never fired it, and had no intention of hurting anyone. Hence, he concludes that the gun was not “used” within the meaning of 21-4618. The statute, by its express language, prohibits the granting of probation to any defendant convicted of an Article 34 crime in which the “defendant used any firearm in the commission thereof.” In our judgment, for the statute to be applicable, the state must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime. In a robbery case, the statute requires proof that the firearm was used as an instrument of force to overcome the will of the victim, resulting in the transfer of possession of property from the victim to the robber. Under the facts of this case, the exhibition of the firearm to the manager of the tavern, coupled with a demand for money, constituted a use of the firearm in the commission of the robbery. Under the circumstances, K.S.A. 1976 Supp. 21-4618 was clearly applicable. The trial court properly denied probation to DeCourcy and imposed the mandatory minimum sentence for robbery as required by K.S.A. 1976 Supp. 21-4618.
The defendant Carr contends that he cannot be sentenced under K.S.A. 1976 Supp. 21-4618 because he was an unarmed accomplice and did not personally use the firearm in the commission of the crime. This undisputed fact is contained in the stipulation of facts provided by the parties. This exact point was raised and determined by this court in State v. Stuart and Jones, supra, which holds that K.S.A. 1976 Supp. 21-4618 applies only to a defendant personally armed with a firearm at the time the crime was committed and does not apply to an unarmed accomplice. In view of our decision in that case, the defendant Carr was entitled to have a hearing before the sentencing court denied his application for probation.
For the reasons set forth above, the sentence imposed by the district court on the conviction of defendant Sean Terrence De-Courcy is affirmed. The sentence of defendant Kenneth Eugene Carr is vacated and the case is remanded to the district court for a hearing on that defendant’s application for probation.
Steven Ray Moulson
Case No. 49,487, the second of the consolidated cases, is a direct appeal by the State of Kansas following the conviction of the defendant, Steven Ray Moulson, on two counts of robbery under K.S.A. 21-3426. After a presentence investigation, the defendant was sentenced on each count to a minimum of one year and a maximum of twenty years with the sentences to run concurrently. Defendant Moulson then made application for probation. The state opposed the granting of probation on the basis that the granting of probation to the defendant Moulson was prohibited under the mandatory sentencing provisions of K.S.A. 1976 Supp. 21-4618, since there was a stipulation by the parties that a firearm was used by the defendant in the commission of both of the robberies. Counsel for defendant Moulson challenged the constitutionality of 21-4618 on the grounds that the statute denied him equal protection of the law and provided for cruel and unusual punishment. Stated simply, it was the position of Moulson that the statute is unconstitutional because it denies to a sentencing court the power to take into consideration any mitigating circumstances in the case, including the past good conduct and tender age of the defendant. He argued that for many years the Kansas law has supported a philosophy which emphasizes the rehabilitation of persons convicted of crime as opposed to strict punishment. He maintained that K.S.A. 1976 Supp. 21-4618 ignores rehabilitation in certain cases where it can be shown that more efficient and effective means of rehabilitation are available to a convicted offender outside the penal system. Following a hearing on the defendant Moulson’s application for probation, the district court declared K.S.A. 1976 Supp. 21-4618 unconstitutional and granted the defendant a five-year probation. The state appealed from the judgment of the trial court holding the statute unconstitutional and granting probation to the defendant.
The contention that K.S.A. 1976 Supp. 21-4618 violates the constitutional right to equal protection of the law was determined adversely to the position of the defendant Moulson in State v. Freeman, supra. We find that case to be controlling on the equal protection issue.
In this case, in support of the ruling of the trial court, the defendant cites Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1971), reh. den. 409 U.S. 902, 34 L.Ed.2d 164, 93 S.Ct. 89 (1972) and Roberts v. Louisiana, 431 U.S. 633, 52 L.Ed.2d 637, 97 S.Ct. 1993 (1977). Both Furman and Roberts involved constitutional challenges to state capital punishment statutes. In our judgment, those cases are not applicable to cases involving minimum sentencing statutes such as K.S.A. 1976 Supp. 21-4618. In State v. Freeman, supra, we discussed, in depth, 21-4618 and its relation to the constitutional provisions proscribing cruel and unusual punishment. We upheld the statute. We pointed out, after discussing Furman, that the concept of cruel and unusual punishment is not rigid but acquires meaning from the evolving standards of decency which mark the progress of a maturing society. In Furman and again in Roberts, it was the method of punishment, the taking of a defendant’s life, that was being considered. In our judgment, the basic issue raised by Moulson on this appeal, attacking 21-4618 on the basis that it constitutes cruel and unusual punishment, was determined adversely to his position by our decision in State v. Freeman, supra. We therefore reject Moulson’s constitutional attack on the statute as being without merit. Defendant Moulson raises other issues which were not raised or determined in the trial court nor have they been briefed by the state. Under the circumstances, those issues are not properly before us in this case.
For the reasons set forth above, the judgment of the district court granting probation to the defendant Moulson is vacated and the case is remanded to the district court with directions to the district court to order execution of the minimum statutory sentence heretofore imposed by the district court on September 2, 1977. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an interlocutory appeal from a ruling disqualifying the Butler County Attorney from prosecuting a worthless check case. (K.S.A. 21-3707.)
An information was filed charging defendant with passing a worthless check. At the preliminary hearing the state called James Hargrove, an attorney and part-time deputy county attorney for Butler County. His purpose in testifying was to state that he had mailed the seven-day notice to defendant as required in K.S.A. 21-3707 and the receipt of certified mail was returned to him, signed by William E. Johnson. Defense counsel moved to disqualify the Butler County Attorney from prosecuting the case because the witness was on the staff of the county attorney. The associate district judge sustained the motion.
DR 5-101 (B) of the Code of Professional Responsibility, 220 Kan. cxix, provides:
“A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
“(1) If the testimony will relate solely to an uncontested matter.
“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
“(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
DR 5-102 (A) provides:
“If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4).”
We believe it was the intention of DR 5-101 (B) (2) to permit counsel to testify as to the mailing of notices and as to the return of the receipt for certified mail. This testimony related solely to a matter of formality and there was no reason to believe substantial evidence would be offered in opposition. Although decided before the adoption of the Code of Professional Responsibility in this state, the following cases support this position: Robbins v. Hannen, 194 Kan. 596, 599, 400 P.2d 733 (1965); State v. Spencer, 186 Kan. 298, 302, 349 P.2d 920 (1960); State v. Ryan, 137 Kan. 733, 22 P.2d 418 (1933). The lower court erred in disqualifying the county attorney from the case.
The judgment of the trial court is reversed. | [
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