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The opinion of the court was delivered by
Miller, J.:
Defendant, Ruth L. Calhoun, was charged with the offense of giving a worthless check, in violation of K.S.A. 21-3707. At the close of the preliminary hearing, the trial court sustained defendant’s motion to dismiss. The state appeals.
The sole issue is whether sending of a notice by certified mail was “notice” under K.S.A. 21-3707.
The check was written by the defendant and was taken by a Safeway store in Wichita on August 14,1977. It was deposited on the following day, and thereafter it was returned to Safeway, marked “Insufficient Funds.” The store manager attempted to contact the defendant by telephone, but was unsuccessful. A Safeway security officer then sent a letter to the defendant by regular mail; there was no response. Next a notice was sent to the defendant by certified mail, addressed to her at the address shown on the check. Restricted Delivery (show to whom and date delivered) was requested. The return receipt shows that the certified mail was delivered to James Eckleford on September 16, 1977.
K.S.A. 21-3707 reads as follows:
“(1) Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft as aforesaid, that the maker or drawer has no deposit in or credits with such bank or depository or has not sufficient funds in, or credits with, such bank or depository for the payment of such check, order or draft in full upon its presentation.
“(2) In any prosecution against the maker or drawer of a check, order or draft payment of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank or depository, providing such maker or drawer shall not have paid the holder thereof the amount due thereon and a service charge not exceeding three dollars ($3) for each check, within seven (7) days after notice has been given to him that such check, draft, or order has not been paid by the drawee. The word ‘notice,’ as used herein, shall be construed to include notice to the person entitled thereto given orally as well as notice given to such person in writing. Notice in writing shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be charged with notice at his address as it appears on such check, draft or order.
“(4) Giving a worthless check is a class E felony if the check, draft or order is drawn for fifty dollars ($50) or more. Giving a worthless check is a class A misdemeanor if the check, draft or order is drawn for less than fifty dollars ($50).”
Pertinent postal regulations, as set forth in the 1977 Postal Service Manual, which is incorporated by reference into the Code of Federal Regulations, 39 CFR § 111.1, provide as follows:
“154.17 RESTRICTED DELIVERY
“Registered, certified, numbered insured, and COD mail which the sender has restricted in delivery to the addressee only may not be delivered to any other person except as provided in 165.34.
“165.34 PROCEDURES AT OFFICE OF DELIVERY
“.341 Mail marked Restricted Delivery will be delivered only to the addressee or to the person he specifically authorizes in writing to receive restricted delivery mail.
“a. Addressees who regularly receive restricted delivery mail may authorize an agent by use of Form 3801, Standing Delivery Order, or by a letter to the postmaster. These authorizations are for post office records. The notation, This authorization is extended to include Restricted Delivery Mail must be made by the addressee on the part of the Form 3801 provided for signature of authorized agents.
“b. Form 3849-A, Delivery Notice or Receipt, may be left for this authorization if the post office has no standing delivery order or letter on file. On the back of the form the addressee may enter the name of the person designated in the Deliver Article to block and sign and date the authorization. The agent must sign for receipt of the article on the front of the form in the normal manner,
“c. Proof of identification should be required of the addressee (or agent) if not known by the delivery employee when restricted delivery mail is delivered.
“.347 The endorsements Deliver to Addressee Only or Deliver to Addressee or Order are obsolete. Any mail bearing such endorsements will be handled in accordance with the procedures prescribed for Restricted Delivery mail.”
The content of the notice mailed is not challenged; the sole issue is whether the manner in which it was mailed meets the statutory criteria. We hold that it does. The notice was sent by certified mail and delivery was restricted. Thus it was “deposited as restricted matter in the United States mail.” It was addressed to the person to be charged with notice, the defendant, at her address as it appears on the check.
The rebuttable presumption provided by the statute arises when such a showing is made. The trial court erred in dismissing the complaint. The judgment is reversed, with directions to proceed with trial. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a comparative negligence action for damages which resulted from a collision between a car owned by Larry and Peggy Miles, and one owned by Charles West.
On January 5, 1975, plaintiff Peggy Miles and her husband, Larry Miles, decided to go shopping. They loaded their two children, Dawn and Michael, into their 1971 Gremlin and left home. Their car proceeded east on West Central Street in Wichita. The children, sitting behind them in the back seat of the car, started arguing over where each would sit. Their mother turned around to discipline them, but didn’t have much success. Larry apparently felt it was necessary to assist his wife and slowed down in order to make a left turn into a driveway on the north side of Central. As he made the turn he was hit by defendant Charles West, who was proceeding west on Central. As a result of the accident, Larry, Peggy, and Dawn Miles, and Charles West were injured.
Peggy and Dawn Miles filed suit against Charles West. Subsequently, West filed suit against Larry Miles. The two cases were consolidated for trial. In addition, West joined Larry Miles as a third-party defendant in the suit against him by Peggy and Dawn Miles. At trial the jury found Larry Miles 40% at fault and Charles West 60% at fault. The jury also found Peggy Miles suffered $60,000 damage, Dawn Miles suffered $10,000 damage, Larry Miles suffered $5,000 damage, and West suffered $25,000 damage. Based upon the jury findings the trial court reduced Peggy and Dawn Miles’ damages by 40% because of Larry Miles’ negligence, and entered judgment against West for $36,000 and $6,000 respectively. Larry Miles’ own negligence reduced his judgment against West to $3,000. Because West was 60% negligent he was barred from recovery.
Plaintiffs Peggy and Dawn Miles appeal, and defendant West cross-appeals.
Plaintiffs contend the trial court erroneously ignored the principle of joint and several liability in entering judgment for only 60% of the total damages. They also suggest the judgment violates the doctrines of interspousal tort immunity and intrafamily immunity. They further argue their recovery cannot be diminished because of Larry Miles’ negligence because he is not a party against whom recovery is allowed, and therefore should not have been joined as a party under subsection (c) of K.S.A. 60-258a, which states:
“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.”
All these contentions were answered adversely to plaintiffs in Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). There we held that under the provisions of 60-258a the concept of joint and several liability between tort-feasors no longer exists in compartative negligence actions. Individual liability of each defendant now rests upon proportionate fault. Under 60-258a all tort-feasors may be made parties to a lawsuit and even if they are not made parties their percentage of fault may be determined. With the rendition of individual judgments the risk of an immune or judgment-proof tort-feasor falls upon the plaintiff. The goal of determining fault of all the parties responsible for causing or contributing to the collision or occurrence is to allow each party to be joined in the action, even if he is immune or judgment-proof.
The foregoing effectively disposes of plaintiffs’ arguments on interspousal tort immunity and intrafamily immunity as they apply to this case. Recognizing the existence of interspousal tort immunity (Sink v. Sink, 172 Kan. 217, 239 P.2d 933 [1952]), and assuming, but not admitting, the existence of intrafamily immunity in this state, plaintiffs’ arguments have no merit. The trial court did not enter judgments against Larry Miles in favor of plaintiffs, in violation of the doctrines, but instead diminished plaintiffs’ awards against defendant West. That course of action was correct.
The comparative negligence statute was intended to prevent harsh results which could occur in lawsuits similar to the case at bar. An example of what could happen if joint and several liability existed under comparative negligence in a case involving spouses is Kampman v. Dunham,_Colo._, 560 P.2d 91 (1977). There a husband was operating a motorcycle on which his wife was a passenger. He collided with defendant’s automobile. In the wife’s lawsuit against the automobile owner a jury found the wife 0% negligent, her husband 99% negligent, and the automobile owner 1% negligent. The trial court limited the wife’s recovery against the automobile owner to 1% of her damages. The Colorado Court of Appeals reversed and allowed her to recover 100% of her damages from a party only 1% negligent. The Colorado Supreme Court affirmed, holding that joint and several liability had not been abolished by the adoption of the Colorado comparative negligence statute. We decline to adopt such a construction of our comparative negligence act.
Plaintiffs argue the statute should not apply because they were found to be without fault. They argue that applying the statute to diminish their award when they are not at fault is unfair to them. In Brown v. Keill, supra, we held the statute applies in any case where the comparative negligence of the parties is at issue. The fact plaintiffs are without fault does not prevent the application of the comparative negligence act when the comparative negligence of two or more parties must be determined. The ill fortune of being injured by an immune or judgment-proof person now falls upon plaintiffs rather than upon the other defendants, as was the practice in this state prior to the enactment of 60-258a. The risk of such ill fortune is the price plaintiffs must pay for being relieved of the burden formerly placed upon them by the complete bar to recovery based on contributory negligence.
Defendant’s first issue on cross-appeal concerns the testimony of two lay witnesses, Arcille Roy Tinker and Estil Dean Prior. Both individuals were in an automobile which was traveling west on Central when they were passed by defendant. They observed the Miles car as it attempted to make a left turn and was struck by West’s car. Both witnesses were asked whether the Gremlin making its left turn constituted a hazard to them as they approached the car coming toward them. Defendant objected to the question, but was overruled. Both witnesses stated they did not consider the presence of the Gremlin a hazard to them as they traveled down Central.
According to defendant, the opinion that the Gremlin making a left turn was not a hazard constitutes an impermissible comment on the ultimate issue in a negligence case, citing Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974). That case and other similar cases forbid a witness to express an opinion on the ultimate issue in a negligence action. The opinions offered by the two lay witnesses went to the question of whether the Miles car was a hazard to them. Their opinions had nothing to do with the cause of the collision, which is the subject of this lawsuit, nor did they involve the ultimate legal issue.
Defendant next contends it was reversible error for the trial court to allow into evidence his drinking alcoholic beverages and drinking while driving on prior occasions. Plaintiffs introduced in their case-in-chief a portion of a deposition of defendant’s former girlfriend, who was deceased before the time of trial, to establish defendant had been drinking just before the accident. Her deposition stated that defendant came to her house on the afternoon of the accident and she could tell he had been drinking because his face was flushed. While defendant was there they got into an argument over his drinking. Defendant left her house, got into his car and drove away, kicking up gravel as the car pulled out of the driveway. A few minutes later she received a telephone call informing her of the accident.
Defendant denied he had been drinking on the day of the accident. He argued the “flushed” look his former girlfriend observed on the day of the accident was not due to drinking. He further stated he had never driven a car with a beer can in his hand.
In rebuttal, plaintiffs introduced the remainder of the deposition. In it, defendant’s girlfriend testified she knew from past experience that defendant’s face always became flushed when he drank. She further testified that she had been with him on several occasions when he drove while drinking and holding a beer can in his hand.
Defendant argues the admission of such evidence violates K.S.A. 60-447, 60-448 and 60-422 (d). While normally he would be correct, the facts of this case require a different disposition of the issue. The question of defendant’s intoxication at the time of the accident was a proper issue to present to the jury if relevant evidence of such a condition could be produced. (See, Shawnee Township Fire District v. Morgan, 221 Kan. 271, 559 P.2d 1141 [1977].) Plaintiffs attempted to produce such evidence through the testimony of defendant’s former girlfriend. Her opinion that he had been drinking was based upon her observation that his face was flushed and he was belligerent. Defendant attacked her conclusion as being unfounded. At that point it was proper to show she had previous contact with defendant when he had been drinking and knew what he looked like and how he acted when he drank. Further, defendant volunteered in his direct testimony that he had never held a beer can in his hand while driving a vehicle. The deposition was used in rebuttal to impeach defendant on that statement. Under the circumstances the evidence of defendant’s past drinking was not improperly admitted.
Defendant next contends the trial court erred in failing to give a proximate cause instruction on the issue of intoxication. We find no error. The trial court instructed that driving while intoxicated was one of the acts of negligence alleged by plaintiffs. The court further instructed that the plaintiffs had the burden to prove this claim. Instruction 9A, copied from PIK (Civil) 8.84, stated that intoxication of a driver may be taken into consideration in determining whether a driver exercised ordinary care. Instruction 12 stated that the jury was required to determine defendant’s negligence and fault, if any. The instruction stated:
“A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which claim is made.”
An entire reading of the instructions makes it clear that the intoxication of defendant had to cause or contribute to the accident before the jury could assess liability on that basis.
As his third point, defendant argues the trial court committed reversible error in failing to submit the issue of Peggy Miles’ negligence to the jury. Defendant submits that she had a duty as a passenger to be on the lookout for other cars and failed to do so. In support of this contention defendant cites Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P.2d 748 (1970). We find that case inapplicable as it involved the duty of a passenger to be on the lookout for trains at railroad crossings. In Smith v. Union Pacific Railroad Co., 222 Kan. 303, 307, 564 P.2d 514 (1977), we pointed out that this rule does not apply to a passenger of an automobile involved in a collision between two cars on a street, and further held that the failure of a passenger to keep a lookout for trains at crossings did not constitute negligence as a matter of law, overruling cases such as Sander.
A passenger in an automobile is entitled to trust the vigilance or skill of the driver unless he is aware of the existence of a particular danger or knows from past experience or in some other manner that a driver is not vigilant or skillful. (Smith v. Union Pacific Railroad Co., supra; McGlothlin v. Wiles, 207 Kan. 718, 487 P.2d 533 [1971].) Here there was no evidence Peggy Miles knew of a particular danger or that her husband was not normally a careful driver. Instead, the evidence revealed she was busy disciplining her children and had her eyes focused toward the back of the car when the accident occurred. The trial court was correct in refusing to submit the issue to the jury.
Finally, defendant alleges the awards of damage to the Miles family were excessive. We do not agree. The definition of an excessive verdict depends upon the facts and circumstances of each case. (Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 522 P.2d 176 [1974].) Here Peggy Miles suffered a broken neck and was hospitalized for a month. Her hospital bills came to more than $7,000. After her release from the hospital she was required to wear halo traction for several months and later a neck brace. She still suffered back and neck problems affecting her ability to bend, stoop and lift objects. Dawn Miles was knocked unconscious by the accident. She suffered facial injuries and injuries to an arm. She was hospitalized for a week and had medical bills totaling nearly $1,300. After her release from the hospital she suffered from lingering effects of the accident and did not have full use of her arm or facial muscles for some time. Larry Miles suffered facial cuts, and an injured nose, shoulder, hand, and knee. As a result of the accident he lost a week’s work. His medical bills were $158.60. Because of the knee injury he was unable to crawl on his knees. His shoulder injury weakened his lifting capabilities. He was an air conditioner installer and the injury affected his work which required him to lift heavy weights and crawl under houses to install air conditioning equipment. Under all the facts and circumstances we cannot say the awards were so excessive as to shock the conscience of this court.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a jury verdict in favor of plaintiff Choo-E-Flakes, Inc., against defendant Ernest G. Good for recovery of money past due on an open account for cattle feed purchased by defendant.
Plaintiff ran a milling operation in Parsons, Kansas. One of the services it offered to customers was to “flake” grain for cattle feed. This involved heating grain under controlled conditions of pressure and humidity, rolling the grain, and drying it. The process made grain more palatable to animals and they presumably received more food value from the mix.
Defendant became interested in the process and contacted plaintiff in March, 1974. With assistance from plaintiff, defendant prepared a feed formula for his cattle. Plaintiff agreed to mix the formula, using grain, protein supplements and other additives supplied by defendant. Plaintiff would charge for flaking, mixing and delivering the feed. If defendant did not have grain he could buy grain from sources of his own or buy it from plaintiff at market price and have the cost added to his bill. It appears the prevalent practice was to buy grain through plaintiff.
The undisputed evidence shows defendant determined which ingredients were to go into the mixed feed. He could and did change the formula from time to time. On occasion he would change or eliminate the protein supplement in the mix. Plaintiff considered the mix defendant’s “special feed” because defendant designed and controlled the ingredients. For this reason plaintiff never guaranteed the nutritional content of the mix.
The present controversy arose when plaintiff’s operation changed managers. Defendant fell behind in paying his account and was put on a cash basis. A dispute also arose over the quality of grain plaintiff was putting in the mix. After plaintiff filed suit defendant answered denying liability and counterclaimed to recover all sums he had previously paid. To support those positions defendant relied on the Kansas Commercial Feeding Stuffs Act, K.S.A. 2-1001, et seq. The application of the act to the facts of this case forms the heart of the appeal.
At trial defendant contended he was entitled to judgment on the petition and counterclaim because plaintiff had violated section 2-1002 (E) of the act by failing to include a delivery ticket with each load delivered to defendant and all the transactions were void. The trial court disagreed and refused to instruct the jury that the act applied, and struck defendant’s counterclaim. The jury returned a verdict for plaintiff but reduced the amount shown to be due, apparently agreeing with defendant that two or three loads of feed contained bad grain. On appeal defendant contends the trial court erred in ruling the act did not apply and in excluding proffered testimony of an expert.
K.S.A. 2-1001, et seq., regulates the sale of commercial feeding stuffs. The producer of a commercial mix is required to label every lot, package, bag or parcel of feeding stuffs sold, offered or exposed for sale, or distributed within the state. The label must indicate the producer of the feed, its net weight, and other information indicating the nutritional and chemical content of the feed. Customer formula feed requires a similar label or delivery ticket to accompany each order mixed. Exempt from the act are custom mixed feeds.
Plaintiff argues the feed involved herein was custom mixed feed not subject to the act and defendant argues the feed was customer formula feed subject to the act.
Custom mixed feed is defined in K.S.A. 2-1001 (D):
“The term ‘custom mixed feed’ means a mixture of feed ingredients, or a mixture of feed ingredients and other materials, which are supplied to the owner of the mixing equipment, and are mixed for the owner of the ingredients without any guarantee on the part of the owner of the mixing equipment as to the nutritional or chemical content of the resulting mixture.”
K.S.A. 2-1001 (C) defines custom formula feed:
“The term ‘custom formula feed’ means a mixture of feeding stuffs, or a mixture of feeding stuffs and other materials, each lot of which is formulated subsequent to the request of an individual purchaser to contain a specific content of ingredients, protein, vitamin, drug or other guarantee.”
Clearly, the purpose of the act is to protect the public from commercially prepared feeds which are adulterated, unwholesome, unfit, or have no food value. Thus, a product prepared by a commercial feeder must contain a guarantee of its nutritional and chemical value in the form of a label or delivery ticket.
It is apparent the legislature did not intend the act to apply to feeds where the mixer does not control formulation of the feed or represent or guarantee the nutritional or chemical value of the feed. The facts of this case demonstrate that the feed formula used here was determined by defendant. Plaintiff mixed only those ingredients provided by defendant or those purchased by plaintiff at defendant’s instruction. Plaintiff made no guarantee of the nutritional or chemical value of the finished product. K.S.A. 2-1001, et seq., did not apply in this case and the trial court was correct in its rulings on those issues controlled thereby.
The remaining issue involves the trial court’s refusal to allow Robert H. Guntert, director of the control division of the Kansas State Hoard of Agriculture, to testify as an expert on grain milling and feed mixing. Defendant offered his testimony to establish that the process used by plaintiff constituted preparation of a customer formula feed.
For a witness to testify as an expert on a particular subject, the witness must have skill or experience in the business or profession to which the subject relates. The admissibility of his testimony is within the sound discretion of the trial court. (Plains Transp. of Kan. v. King, 224 Kan. 17, 21, 578 P.2d 1095 [1978].) This witness had no experience as a mill operator or feed mixer. In fact, he admitted that he didn’t pass himself off as an expert in any of these fields. He was an entomologist and administrative director of several programs within the agriculture board. The trial court did not err in restricting the scope of his testimony.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the state from the dismissal of a criminal complaint charging three counts of fraudulent campaign finance reporting in violation of K.S.A. 1977 Supp. 25-4129. The sole issue presented by the state on the appeal is whether the complaint, together with the supporting affidavit, was sufficient to allege a violation of the statute.
For purposes of this appeal we will assume the following facts to be true: In 1976 the defendant, Ross O. Doyen, became a candidate for reelection to the Kansas Senate from the twenty-third senatorial district. On June 19, 1976, Doyen appointed Lowell A. Abeldt as his treasurer. In an affidavit filed by Philip A. Harley, assistant attorney general, it is stated that Doyen person ally received contributions to his 1976 state senatorial campaign from nine political action committees during September and October, 1976, which he did not remit to his campaign treasurer within five days after receipt, in violation of K.S.A. 1977 Supp. 25-4106(d). The nine contributions, which were withheld for a period of thirty to sixty days, were from the following organizations in the amounts designated: Kansas Optometric Political Action Committee, $100; Lawyers Encouraging the Advancement of Good Government, $100; Kansas Auto and Truck Dealers Interested in Government, $100; Political Action Committee of Kansas Consulting Engineers, $50; Kansas Dental Political Action Committee, $75; Chiropractic Political Action Committee, $300; Kansas Credit Union Legislative Action Committee, $200; Kansas Association for Political Education and Action, $100; and Chiropractic Political Action Committee, $200. The state claims that, by intentionally withholding these contributions from his treasurer, defendant Doyen caused his treasurer to make false material statements in the campaign finance reports filed with the secretary of state on October 27, 1976, and December 3, 1976. Harley’s affidavit further states that Doyen’s campaign treasurer, Lowell A. Abeldt, fully and timely reported all contributions known to him at the time each report was filed and that the treasurer had no knowledge of the nine contributions until November 1976, when he promptly reported the same. All of the reports filed by the campaign treasurer with the secretary of state were filed and verified by Abeldt as treasurer as required by law.
Simply stated, the theory of the prosecution is this: Doyen intentionally withheld information as to certain campaign contributions from his innocent treasurer, thus causing the treasurer to file three false reports; it is a crime to make false reports under the Campaign Finance Act; therefore, Doyen is criminally liable for making false reports. Fraudulent campaign finance reporting is made a crime by K.S.A. 1977 Supp. 25-4129 which provides as follows:
“Fraudulent campaign finance reporting; misdemeanor. Fraudulent campaign finance reporting is intentionally making any false material statement in a report or statement made under this act.
“Fraudulent campaign finance reporting is a class A misdemeanor.”
Following the filing of the complaint the defendant appeared in district court and moved for a dismissal of the complaint on three grounds: (1) The service of summons was unlawful; (2) The attorney general had no authority to commence the prosecution; and (3) The complaint and the accompanying affidavit failed to allege an offense under 25-4129. The associate district judge dismissed the complaint on the grounds that the complaint and accompanying affidavit failed to state facts sufficient to allege an offense under the statute. As to the other grounds for dismissal, the trial judge ruled that the prosecution was properly commenced by the attorney general and that the service of summons upon the defendant was lawful. The state has appealed from the order dismissing the complaint. The defendant cross-appealed.
The sole issue raised on the appeal by the state is whether the complaint, in the three counts, is sufficient to allege a violation of 25-4129. It is the position of the state that the complaint properly alleged an offense against the defendant Doyen by accusing him of causing false campaign finance reports to be filed in violation of 25-4129, even though the actual filing was performed by his innocent agent. The state also maintains that the defendant is liable as an aider and abettor under K.S.A. 21-3205. The attorney general reasons that, although the campaign treasurer was innocent because he had no knowledge of the nine contributions, the defendant intentionally caused his treasurer to file a false report by withholding the contributions from the treasurer. Hence the state argues that the defendant is guilty of fraudulent campaign finance reporting.
In order to determine the issue raised on the appeal, we must carefully analyze those provisions of the Campaign Finance Act (K.S.A. 1977 Supp. 25-4101, et seq.) which are pertinent in this case. Under the act, certain procedures have been established which must be followed in the course of any political campaign. For purposes of clarity, we will discuss them step-by-step.
(1) Not later than ten days after becoming a candidate, every candidate must appoint either a campaign treasurer or a candidate committee (25-4103). The provisions pertaining to candidate committees are not involved in this case and will not be further mentioned. Not later than ten days after the appointment of his treasurer, the candidate must report the name and address of the treasurer to the secretary of state. The failure of the candidate to appoint a treasurer or to report his appointment to the secretary of state is specifically made a class A misdemeanor by K.S.A. 1977 Supp. 25-4133.
(2) A candidate may remove any treasurer that he has appointed, but, if he does so, he must appoint a successor and report the name and address of the successor within ten days of the occurrence of the vacancy to the secretary of state (25-4105). All contributions or expenditures must be made by or through the treasurer. If a candidate violates 25-4105 he may be convicted of a class A misdemeanor under the provisions of 25-4133.
(3) Section 25-4106(a) requires the treasurer to keep detailed accounts of all contributions and expenditures. 25-4106(d) provides that every person who receives a contribution for a candidate shall, on demand of the treasurer, or in any event within five days after receipt of such contribution, remit the same and render to the treasurer an account thereof, including the amount, the name, and address of the person, if known, making the contribution and the date received. It is important to note that a violation of 25-4106 is not declared to be a misdemeanor under the provisions of 25-4133 or in any other section of the Campaign Finance Act. The failure of a candidate, or any other person, to remit a contribution to the treasurer within five days after receipt is not made a criminal offense under the act.
(4) Section 25-4108 is a detailed, comprehensive statute which requires the campaign treasurer to file a series of five reports of contributions and expenditures in the office of the secretary of state. Each of the five reports covers a specific period of time, before and after the primary and general elections, and includes all contributions and expenditures during that period. If the treasurer files a report containing material errors or omissions, the Governmental Ethics Commission may require the treasurer to file an amended report. The intentional failure to file a campaign finance report by any person required to make the report is made a class A misdemeanor by section 25-4128. The intentional making of any false material statement in a report or statement constitutes fraudulent campaign reporting and is made a class A misdemeanor by section 25-4129. It is important to note here that, under 25-4108, it is the treasurer who is required to file the reports. There is nothing in that section which requires the candidate to file reports of contributions and expenditures.
(5) Section 25-4111 provides for the verification of reports. The treasurer is required to verify as correct any of the five periodic reports required by 25-4108. The candidate is required to verify the reports required by 25-4103 pertaining to the appointment of his campaign treasurer. The intentional failure to verify reports as required by 25-4111 is specifically made a class A misdemeanor by section 25-4133.
The duty of enforcing the Campaign Finance Act is vested in the Governmental Ethics Commission (25-4119a). That commission is made a bipartisan commission consisting of eleven members, of whom five are appointed by the governor, two by the president of the senate, two by the speaker of the house of representatives, one by the minority leader of the house of representatives, and one by the minority leader of the senate. The commission is given the power to render, in writing, opinions interpreting the act (25-4120). The commission may receive complaints in writing from any individual, which may set forth alleged violations of the act (25-4121). The complaint may be investigated and, if the commission finds probable cause exists for believing the allegations of the complaint, the commission is required to fix a time and place for a hearing (25-4122). The act provides for a due process hearing, the issuance of subpoenas at the request of any party, and the production of pertinent books, papers, or documents (25-4124). Following the introduction of evidence the commission is required to make findings of fact. If it finds that the respondent has violated any provision of the act, the commission is required to submit a report to the attorney general and the district attorney of the appropriate county (25-4125). In addition, the commission is required to submit a report to the house of representatives or senate, if the respondent was elected to that body. In any case involving a judicial officer, the report is submitted to the supreme court (25-4127). The act suggests that a violation of its provisions by a candidate may be made the basis for impeachment or other disciplinary action such as censure, disqualification, or an ouster action brought by the attorney general (25-4127).
It must be emphasized that the Campaign Finance Act contemplates the enforcement of many of its various requirements by actions of a civil nature. It is important to note that the legislature has made certain violations of the act criminal offenses, while other violations of the act are not declared to be crimes. There are five sections of the Campaign Finance Act where criminal liabil ity is created for the violation of a particular duty: Failure to file a campaign finance report (25-4128); fraudulent campaign finance reporting (25-4129); charging an excessive amount for political advertising (25-4130); excessive campaign contributions (25-4131); and a miscellaneous section (25-4133), making it a class A misdemeanor to intentionally violate any of the provisions of 25-4103, 25-4104, 25-4105, 25-4107, 25-4111, 25-4113, 25-4126, and a certain confidentiality provision contained in 25-4122.
A candidate commits a misdemeanor if he fails to appoint or report the appointment of a treasurer as required by 25-4103, or if he fails to report the removal of a treasurer under 25-4105, or if he fails to verify any report required by 25-4103. Under the Campaign Finance Act it is not made a crime for a candidate to fail to file any of the reports required to be filed by the treasurer under 25-4108, nor is it made a crime for a candidate who receives a contribution to fail to remit the same and render to the treasurer an account thereof within five days after receipt as required by 25-4106(d).
The controversy undoubtedly arose in this case because the Kansas Campaign Finance Act, as enacted in 1974 and amended in subsequent years, does not require a candidate either to file or verify the reports of contributions or expenditures made in the course of a political Campaign. We note that under the Federal Election Campaign Act (2 U.S.C. § 434) both the campaign treasurer and each candidate for federal office are required to file reports of receipts and expenditures. If the candidate files a false report, he may be subjected to certain criminal penalties. (2 U.S.C. § 441j.)
In its report to the 1974 Kansas legislature, the interim legislative committee which studied the regulation of political campaign expenditures and contributions recommended a bill which required both the candidate and his treasurer to certify to the correctness of each report of contributions and expenditures required under the Campaign Finance Act. In the preparation of its report, the interim committee studied the campaign finance laws of certain other states and noted that major revisions had recently been enacted in the campaign finance laws of Florida, California, New Jersey, Oregon, and Texas. An examination of the campaign finance statutes in those five states reveals that all of them require either that the reports of contributions and expend itures be filed by the candidate or that the candidate verify such reports. (Florida [Fla. Stat. § 106.07]; California [Cal. Elec. Code § 11558 (West 1977)]; New Jersey [N.J. Stat. Ann. § 19.44A-16 Supp. 1973]; Oregon [Or. Rev. Stat. § 260.072]; Texas [Tex. Elec. Code Ann. Art. 14.08 (Vernon)].) It is clear that, under those state campaign finance laws, a candidate who files a report or who verifies his treasurer’s report containing intentional omissions of certain contributions would be subject to criminal penalties. The 1974 Kansas legislature apparently decided not to include in the Kansas act the requirement that a candidate either file a report of contributions and expenditures or verify the accuracy of such a report filed by his treasurer.
With the above provisions of the Campaign Finance Act in mind, we now turn to a consideration of the issue before us. We are, at the outset, confronted with the interpretation of a statute which imposes criminal penalties. It is a fundamental rule that a criminal statute is to be strictly construed and is not to be extended by courts to embrace acts or conduct not clearly included within its prohibitions. (State v. Finley, 199 Kan. 615, 617, 433 P.2d 414 [1967]; State v. Crosby, 182 Kan. 677, 324 P.2d 197 [1958].) If the facts alleged in a complaint or information do not constitute an offense within the terms and meaning of the statute upon which it is based, the complaint or information is fatally defective. (State v. Bishop, 215 Kan. 481, 524 P.2d 712 [1974].)
K.S.A. 1977 Supp. 25-4108 makes it clear that it is the campaign treasurer who has the legal duty to file the periodic reports of contributions and expenditures during the course of the campaign. The candidate himself is not required to file such reports or to verify them as correct. The state urges, however, that although defendant Doyen himself did not file a report containing any false material statement, he caused his campaign treasurer to file a false report by withholding certain contributions from his treasurer. In the information the defendant is specifically charged with “causing” the false reports to be filed. It is important to note that the word “causing” is not included in the definition of the crime set forth in K.S.A. 1977 Supp. 25-4129. If the legislature had intended to make it a crime for the candidate to “cause” his treasurer to file a false report, it could easily have done so. There are many statutes contained in the Kansas Criminal Code where the legislature has provided that “causing” an act to be committed by another constitutes a criminal offense. See, for examples, endangering a child, K.S.A. 21-3608; fraudulently obtaining execution of a document, K.S.A. 21-3706; giving a worthless check, K.S.A. 21-3707; making a false writing, K.S.A. 21-3711; littering, K.S.A. 21-3722; warehouse receipt fraud, K.S.A. 21-3736; and theft of telecommunication services, K.S.A. 21-3745. Thus the legislature has rather frequently included the “causing” of an act to fall within the statutory definition of a crime when it desired to do so. Should we interpret 25-4129 to include “causing” the making of a false material statement in the treasurer’s report, such construction would extend the application of 25-4129 to embrace acts or conduct not clearly within the provisions of the statute. To do so would violate the rule of strict construction of criminal statutes.
In construing 25-4129, we must also consider the other sections contained in the Campaign Finance Act which have been discussed and analyzed. As noted above, the legislature did not make criminal the failure of a candidate, or any other person, to remit a contribution to the treasurer within five days after receipt. That fact, coupled with the further fact that the violations of certain other sections by a candidate are specifically made criminal, leads us to the conclusion that the failure of a candidate to remit a contribution to his treasurer cannot be made a criminal act indirectly by judicially including that omission within the definition of fraudulent campaign finance reporting.
We have found no Kansas cases exactly in point. From other jurisdictions, the case closest in point is State v. Buchanan, 189 So. 2d 270 (Fla. App. 1966). There the defendant, the elected sheriff of Dade county, was charged with numerous counts of knowingly making, by and through his campaign treasurer, a false report of political contributions. The Florida statute provided a penalty for knowingly making any false statement or report. The Florida statute placed the duty of making campaign reports on the campaign treasurer and only the campaign treasurer was required to certify the correctness of any such reports. The defendant was charged with knowingly making, by and through his campaign treasurer, a false report, said report being false in that it did not list a certain contribution to the campaign fund. The Florida court of appeals held that the information failed to charge a crime under the Florida statute since the acts alleged did not clearly come within the terms of the statute and the court was required to strictly construe a penal statute.
The state maintains that defendant Doyen can properly be prosecuted as an aider and abettor under K.S.A. 21-3205(1) which provides as follows:
“21-3205. Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit a crime.” (Emphasis supplied.)
That statute, in clear language, requires that in order for a person to be an aider or abettor, he must aid or abet another person in committing the crime. The generally accepted rule is that a person cannot aid and abet the commission of a crime unless another commits the offense. One cannot aid and abet himself in the commission of an offense. Stated in another way, one cannot be guilty of aiding and abetting unless another as principal committed a crime. (Morgan v. United States, 159 F.2d 85 [10th Cir. 1947]; United States v. Zerbst, 111 F. Supp. 807 [D.C. S.C. 1953]; and Shuttlesworth v. Birmingham, 373 U.S. 262, 10 L.Ed.2d 335, 83 S.Ct. 1130 [1963].) In the present case, the affidavit supporting the complaint alleges that defendant’s campaign treasurer acted in good faith and fully and timely reported all contributions known to him at the time each report was filed. The rule which holds an aider and abettor liable is thus not applicable since, under the facts of this case, there is no other person who committed a crime as the principal who was aided and abetted by the defendant Doyen.
The state argues that the defendant is criminally responsible because he committed the crime through an innocent agent. It is true that, as a general rule, if a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime and punishable accordingly, although he was not present at the time and place of the offense. This general rule is applicable, however, only in factual situations where the defendant could be found guilty as a principal if he committed the act himself. See for example, State v. Kliewer, 210 Kan. 820, 504 P.2d 580 (1972); State v. Darling, 208 Kan. 469, 493 P.2d 216 (1972). In the present case the defendant is charged with the withholding of campaign contributions from his campaign treasurer thus causing his campaign treasurer to file a false report. It must be emphasized that the defendant Doyen did not and could not himself make any false material statement in any of the periodic reports required to be filed and verified by the campaign treasurer under the provisions of K.S.A. 1977 Supp. 25-4108 and 25-4111. As far as those reports are concerned, the treasurer having the legal duty to file correct reports would be the principal in the commission of the crime of fraudulent campaign finance reporting. It should be noted that the candidate could be guilty as a principal if he intentionally made a false statement in his report of the appointment or removal of a treasurer under K.S.A. 1977 Supp. 25-4103 or 25-4105.
The cases relied upon by the state are not applicable to the facts of this case. In each case cited, the defendant was a person included within the class of persons contemplated by the statute. For example, in United States v. Giles, 300 U.S. 41, 81 L.Ed. 493, 57 S.Ct. 340 (1937), the federal statute (12 U.S.C. § 592) made it a crime for any officer, director, agent, or employee of any federal reserve bank to make any false entry in any book, report, or statement of such bank with intent to injure or defraud the bank. The defendant in that case, a bank teller, withheld selected deposit slips for three or four days before permitting them to reach the bookkeeping department, thus causing the ledger to show false balances. The United States Supreme Court held that, since the false entries were the intended and necessary result of defendant’s deliberate action in withholding the deposit tickets, he, in effect, “made them,” and defendant could be held criminally liable for making false entries under the statute. In Giles the defendant, as a teller of the bank, was clearly within the class of persons contemplated by the statute. Since the defendant in the course of his duties had control over the making of entries on the ledger, he could be held liable under the federal statute. Giles is distinguishable from the present case in that here only the campaign treasurer is required to file and verify the periodic reports required under section 25-4108.
From what we have said above, it follows that the district court was correct in sustaining the defendant’s motion to dismiss the complaint. The creation of a crime by legislative enactment is within the power of the legislature. It is not within the power of this court. The existence of the crime, which the state urges in this „case, does not clearly appear by the statute and it may not be added by judicial interpretation. The legislature has made certain violations of the Campaign Finance Act criminal offenses, while other violations of the act are not declared to be crimes. It is up to the legislature to expand the scope of criminal liability for other violations of the act if it chooses to do so. In view of our disposition of the issue raised on the appeal, we do not deem it necessary to consider the points raised on the cross-appeal.
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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 Roger D. Foy (defendant-appellant) guilty of felony murder (K.S.A. 21-3401).
Numerous trial errors are asserted on appeal for reversal of the conviction and sentence.
The appellant and Sharon Foy were married in Littleton, Colorado, in 1966. Their marriage was characterized by frequent periods of discord and violence. Sharon obtained a divorce from the appellant in 1973; however, the two continued to live together at various intervals. The appellant testified he attributed his marital problems largely to interference by Sharon’s mother, Mrs. Grace Kruelhous.
The appellant and Sharon were living together with their family in the basement of Grace Kruelhous’ home in Dodge City, Kansas, on January 1, 1976, when the events leading up to the shooting began. During the afternoon of New Year’s Day Sharon went drinking with some girl friends. Subsequently, she accompanied the group to a private party at Marvin Schmidt’s trailer where she continued to drink and smoke marijuana. When Sharon had not arrived home by 7:00 p.m. the appellant and a friend began looking for her. After finding her at Schmidt’s trailer the appellant demanded she return home. When Sharon refused, the appellant slapped and kicked her in front of the others.
The following day Sharon signed a complaint charging the appellant with battery. For some reason the complaint was not filed until January 19, 1976. In any event, Sharon told the appellant she had signed the complaint at her mother’s urging and asked him to live with her brother, Rex Kreie, in order to “give Mom a chance to cool off,” but the appellant and Sharon continued to see one another until the night she was shot and killed.
On January 20, 1976, the appellant was served at work with a summons for the battery charge. He borrowed a truck from his employer and went to the cafe where Sharon was working to discuss the situation. Apparently, she assured him they would talk when she got off work. The appellant then began drinking, and when Sharon failed to contact him, he started calling Grace Kruelhous’ home.
The appellant testified on two of these occasions he heard Grace holler to “Hang up on the son-of-a-bitch and call the Police.” After informing Sharon he contemplated suicide she urged him to visit a relative of hers to talk and to pray. The appellant did visit Sharon’s aunt, Elsie Sterling, and she and her husband counseled and prayed with him.
After returning home the appellant resumed his drinking and decided to walk to Grace’s house in order to talk to Sharon. He testified he took a sawed-off shotgun with him thinking if Grace interfered, he would kill her. As he approached the Sonic Drive-In he saw his friend Steve Smith and asked him for a ride to Grace’s house. Smith testified he asked the appellant what he was going to do with the gun and the appellant answered, “blow somebody’s shit away.” When Smith asked to whom he was referring, the appellant answered, “The old lady.” The appellant testified he was referring to Grace. After this conversation the appellant put the gun in his pants and pulled his coat over it.
Grace Kruelhous testified that at approximately 8:00 p.m. she and Sharon had been watching television when the appellant opened the front door and walked in. While the evidence is conflicting, Sharon allegedly stated, “Roger, you are not supposed to be in mamma’s house.” She said that she would “call the Law” if he did not leave. The two stood facing each other in the front hall at the time. As Grace arose from her chair to call the police the appellant glanced in her direction and in his anger squeezed down on the hammer. The gun discharged shooting Sharon in the face and killing her instantly.
The appellant then threw the gun into the air and ran from the house. He proceeded to wander around the streets until police sirens frightened him. Thereafter, he walked to Lois Baxley’s home and asked her to drive him to Haysville, Kansas, where his close friend, Kenneth Cupp, lived.
Mrs. Baxley and the appellant drove immediately to Haysville where the appellant informed Cupp he had killed Sharon. Cupp testified he did not believe the appellant because he thought the couple had been in another fight and the appellant had “probably scabbed her up again.” Cupp decided the appellant should go to a motel and get some sleep and the two arranged to meet at 11:00 a.m. the next day so that Cupp could help the appellant turn himself in.
After the appellant left his home Kenneth Cupp became concerned the story might be true. He called a friend at KAKE radio station in Wichita, Kansas, and was advised the appellant was wanted for the murder of his wife. Cupp then drove to Wichita in order to search for the appellant and enlisted the aid of Officer William C. Naholnik of the Wichita Police Department.
The appellant and Lois Baxley were found at the El Rancho Motel on South Broadway, and they were arrested. Officer Naholnik testified the appellant made certain incriminating statements to him en route to the police station after he was given the Miranda warning.
Subsequently, the appellant was arraigned on June 18, 1976, and pled not guilty to the charge of first-degree premeditated murder set forth in the information. His motions for a change of venue and reduction of bond were overruled.
At the trial the judge instructed the jury, over objection, on the theory of felony murder based upon aggravated burglary as the underlying felony. The jury then found the appellant guilty of first-degree murder under the felony murder provisions of the statute. The trial court, over objection, immediately sentenced the appellant to two life sentences under the Habitual Criminal Statute. The appellant’s motion for a new trial was denied and appeal has been duly perfected.
I. Change of Venue
The appellant first contends the trial court erred in overruling his motion for change of venue. In support of this motion he filed copies of numerous newspaper articles and radio stories concerning the crime. He also offered seven identical affidavits from various business people in Ford County and testimony of the undersheriff indicating he could not receive a fair trial in the county.
The granting of a change of venue lies within the sound discretion of the trial court. The burden is on the defendant to show prejudice in the community not as a matter of speculation but as a demonstrable reality (State v. Cates, 223 Kan. 724, 730, 576 P.2d 657 [1978]; State v. Sanders, 223 Kan. 273, 279-80, 574 P.2d 559 [1977]; State v. Gilder, 223 Kan. 220, 223, 574 P.2d 196 [1977]; and State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 [1977].) Media publicity alone has never established prejudice per se. (State v. Gilder, supra at 223 and State v. Porter, supra at 117.) The mere inclusion of identical conclusory type affidavits is generally not considered a plausible showing of prejudice. (State v. Black, 221 Kan. 248, 249, 559 P.2d 784 [1977].)
In this case the newspaper articles are neither inflammatory nor unduly suggestive. In fact, some do not even mention the appellant. The trial court properly denied the motion for change of venue under the circumstances.
II. Excessive Bail
The appellant next asserts the trial court erred in requiring excessive bail and in denying his motion for reduction of bond. The appellant’s bond was initially set at $100,000 but was raised to $250,000 at his first appearance before the trial court.
Generally, no hard and fast rule can be laid down for fixing the amount of bail on a criminal charge, and each case must be governed by its own facts and circumstances. (State v. Robertson, 203 Kan. 647, 455 P.2d 570 [1969].) The amount of bail rests within the sound discretion of the presiding magistrate. (State v. Way, 204 Kan. 375, 461 P.2d 820 [1969]; and Craig v. State, 198 Kan. 39, 422 P.2d 955 [1967].) The purpose of the statutes requiring bond from persons accused of crimes is to assure their presence at the time and place of the trial. (State v. Burgess, 205 Kan. 224, 226, 468 P.2d 229 [1970]; and Craig v. State, supra at 41.)
The evidence presented at the preliminary hearing revealed the appellant admittedly shot the deceased, left Dodge City immediately after the crime, and had few friends and relatives in the town. No abuse in the exercise of the trial court’s power of discretion has been shown. It must be noted the appellant failed to file an application for writ of habeas corpus, and he does not claim his defense was hampered by his custody status. In State v. Dunnan, 223 Kan. 428, 430, 573 P.2d 1068 (1978), our court recently held the matter of pretrial release moot under similar circumstances.
III. Admission of Photographs
The appellant argues the trial court erred in overruling his motion to suppress certain photographs of the deceased.
The photographs marked exhibits 3, 4 and 5 show the body of the deceased lying face down with the gun next to the corpse. The appellant concedes in his brief they do have some probative value because they show the relative positions of the body and the gun as well as the similarity of the gun at the scene to the one offered in evidence at his trial. The record reflects they were actually offered for that purpose at the trial, and no error has been shown in their admittance.
The appellant’s argument against the admission of exhibits 6 and 7 as inflammatory and highly prejudicial is equally nonconvincing. Both black and white photographs depicted the deceased’s gunshot wound at close range. The record reflects they were identified by the police photographer who took them and used by Dr. Charles Hinshaw, who performed the autopsy, in his direct testimony.
As a general rule photographs are not rendered inadmissible merely because they are shocking or gruesome if they are relevant and material to the matters at issue. (State v. Martinez, 223 Kan. 536, 537, 575 P.2d 30 [1978]; State v. Mantz, 222 Kan. 453, 459, 565 P.2d 612 [1977]; and State v. Childers, 222 Kan. 32, Syl. 10, 563 P.2d 999 [1977].) After viewing these photographs we conclude they are neither shocking nor gruesome and were highly relevant to show the location and severity of the wound.
Finally, the appellant objects to exhibit 8 as irrelevant and immaterial to any issue in the case. The color photograph depicts the deceased at a family gathering three months before she was killed. It was offered to show the severity of the wound and Sharon’s appearance prior to her death and no prejudicial error is found to exist.
IV. Suppression of Statements
The appellant complains the trial court erred in overruling his motion to suppress certain statements made by him as an incident to his arrest. He argues the statements were made shortly after his arrest when he was half asleep and unnerved.
Officer William C. Naholnik testified while driving to the police station, after the Miranda rights were explained, he and the appellant engaged in casual conversation. Suddenly the appellant blurted various incriminating statements about the deceased such as “You should have seen my old lady after I blew her head off with a shotgun.” The appellant also stated he had shot his wife in front of his children; he needed time to think; and Lois Baxley did not participate in the commission of the crime.
We have often said uncoerced statements made to a police officer by a defendant who has been given warning as to his constitutional rights are admissible as evidence at his trial. (State v. Cook, 224 Kan. 132, 578 P.2d 257 [1978]; and State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 [1977] and cases cited therein.) The statements were voluntarily given and no error has been shown in their admission by the trial court.
V. Opinion Testimony
The appellant argues the trial court erred in permitting Dr. Charles Hinshaw, the pathologist, to state his opinion concerning the range at which the gun was held from the victim’s head when the appellant fired it. Dr. Hinshaw testified that the barrel of the gun had to be “against the skin or very close” to it. He stated he was no expert in ballistics.
K.S.A. 60-456(a) provides:
“If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.”
Thus, whether a witness is qualified to give opinion testimony is to be determined by the trial court in the exercise of its power of discretion. (State v. Hernandez, 222 Kan. 175, 177, 563 P.2d 474 [1977]; State v. Amodei, 222 Kan. 140, 146, 563 P.2d 440 [1977]; and State v. Henson, 221 Kan. 635, Syl. 7, 562 P.2d 51 [1977].) When the testimony sought requires proper foundation and knowledge to express an opinion, and it is not shown the witness had such knowledge, the opinion testimony is so conjectural as to lack probative value and may be excluded. (See State v. Duncan, 221 Kan. 714, 723, 562 P.2d 84 [1977] and cases cited therein.)
Dr. Hinshaw was allowed to give his opinion as to the range at which the gun was held to the victim’s head on two separate occasions. The appellant failed to object on the first occasion. Thereafter, Dr. Hinshaw stated that based upon similar case histories, books he had read and experience with gunshot wounds at close range infliction, he felt qualified to express an opinion regarding the effect of shotgun blasts against the human body. His testimony indicated no evidence of flame bum or satellite lesions from the shot. Based upon his autopsy and the nature of the wound as well as his previous experience we hold Dr. Hinshaw was qualified to give his opinion about the distance of the gun from the skin.
The appellant also asserts the trial court erred in refusing to allow Dr. Walter Menninger to testify as to the appellant’s ability to plan, to premeditate and to form the specific intent to murder his wife. Dr. Menninger examined the appellant at the state’s request pursuant to a court order directing psychiatric examination after the appellant served notice of intent to assert an insanity defense. This defense was withdrawn at the commencement of the trial. No abuse of the trial court’s power of discretion occurred here. Dr. Menninger was allowed to testify that the appellant had a personality disorder and suffered from impulsive behavior. The disputed testimony was immaterial to his case because it concerned the question of insanity which the appellant had voluntarily withdrawn as a defense before the trial.
VI. Instructions
The appellant challenges the sufficiency of numerous instructions. Specifically, he contends the trial court’s instruction on premeditation unduly emphasized the evidence of use of a deadly weapon.
The trial court instructed in 11-A:
“The use of a deadly weapon is not of itself alone sufficient to infer premeditation. If, however, you find from the evidence that the defendant used a deadly weapon in the commission of the alleged offense, you may take that fact into consideration in determining the element of premeditation.”
This instruction is based upon language approved in State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978); State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977); and State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975). Here the trial court gave PIK, Criminal instruction § 56.04(b) (Revised) which does not include reference to the use of a deadly weapon. While it is better practice for trial courts to confine their instructions to PIK, no error is found to exist on this point.
The appellant complains of instructions given on homicide definitions and burden of proof. The instructions followed PIK, Criminal, § 56.04 (Revised) and PIK, Criminal, § 52.02 verbatim and were not erroneous.
The appellant also objects to the instruction of felony murder using aggravated burglary as the felony with the intent to commit aggravated assault on Grace Kruelhous. The information in the case at bar charged the appellant with first-degree premeditated murder. The jury returned a verdict of first-degree murder and the journal entry indicates the same. Both parties conceded at the hearing on the motion for a new trial that the first-degree murder conviction was based upon aggravated burglary in application of the felony-murder rule. The appellant now contends he was wholly without notice for his defense and the evidence at trial was insufficient to charge the jury with felony murder.
Our court has held an information in the ordinary form charging that a killing was done with malice aforethought, deliberation and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a robbery or burglary. (State v. Turner, 193 Kan. 189, 392 P.2d 863 [1964].) Therefore, the fact that felony murder was not charged in the information does not preclude an instruction where evidence supports the instruction.
Of course, in Kansas, the felony-murder doctrine is not applicable in cases of felonious assault resulting in death because the assault merges into the homicide. (State v. Clark, 204 Kan. 38, 460 P.2d 586 [1969].) Thus, aggravated assault may not be the underlying felony itself. (State v. Clark, supra at 44; see also State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 [1977]; and State v. Goodseal, 220 Kan. 487, 493, 553 P.2d 279 [1976].) Here, however, aggravated burglary was the underlying felony, but it was predicated upon aggravated assault.
Should the merger doctrine for assault cases be extended to limit the felony-murder instruction in burglary cases in which the burglary is based upon an assault? We think not.
While our court has never examined this issue, several states confronted with the question have held that burglary based upon the crime of assault can properly serve as the predicate for a felony-murder conviction. (Blango v. United States, 373 A.2d 885 [D.C. 1977]; State v. Miller, 110 Ariz. 489, 520 P.2d 1113 [1974]; People v. Miller, 32 N.Y.2d 157, 297 N.E.2d 85, 344 N.Y.S.2d 342 [1973]; and State v. Tremblay, 4 Ore. App. 512, 479 P.2d 507 [1971], See also Comment, The Merger Doctrine As A Limitation On The Felony-Murder Rule: A Balance Of Criminal Law Principles, 13 Wake Forest L. Rev. 369, 388-94 [1977].)
We find the reasoning in People v. Miller, supra, persuasive. The court states:
“. . . [Piersons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street. Where, as here, the criminal act underlying the burglary is an assault with a dangerous weapon, the likelihood that the assault will culminate in a homicide is significantly increased by the situs of the assault. When the assault takes place within the domicile, the victim may be more likely to resist the assault; the victim is also less likely to be able to avoid the consequences of the assault, since his paths of retreat and escape may be barred or severely restricted by furniture, walls and other obstructions incidental to buildings. Further, it is also more likely that when the assault occurs in the victim’s domicile, there will be present family or close friends who will come to the victim’s aid and be killed. . . .” (pp. 160-161).
Here the evidence supports a finding that aggravated burglary was complete upon the unlawful entry by the appellant into the home of Grace Kruelhous with the prerequisite intent to commit a felony therein (aggravated assault). Thereafter the homicide was committed in the course of the burglary. Accordingly, we reject the holding of People v. Wilson, 1 Cal. 3d 431, 462 P.2d 22, 82 Cal. Rptr. 494 (1969) and hold the merger doctrine does not apply in felony-murder cases where an aggravated burglary is based upon an aggravated assault.
Was the appellant without notice for his defense on felony murder? During the trial the prosecuting attorney at the close of the state’s case specifically and unequivocally advised the court the state was going to withdraw its request for an instruction on felony murder. The appellant, on that assumption, then presented his evidence and rested. At the conclusion of the evidence the trial court, at the request of the prosecuting attorney, instructed the jury on felony murder, and instructed the jury that it could find the appellant guilty of felony murder. This was prejudicial to the appellant in the presentation of his evidence.
Finally, the appellant asserts it was error for the trial court to refuse an instruction on involuntary manslaughter based upon criminal trespass as a lesser included offense of felony murder. As a general rule the trial court is required to give a full range of lesser included offense instructions. When murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. (State v. Rueckert, supra at 731.)
An exception to this rule exists when the evidence of the underlying felony is weak and inconclusive. (State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 [1978] and cases cited therein.) Here the evidence of the underlying felony (aggravated burglary) was inconclusive. The appellant was going to his mother-in-law’s home where his wife Sharon was staying. He went for the purpose of talking with Sharon. The jury might have found from the evidence that the appellant committed a criminal trespass upon opening the front door and entering the home (K.S.A. 21-3721). On the evidence the shooting of Sharon by the appellant may have been a malicious and willful act or, according to the testimony of the defendant (that his hand slipped off the hammer), it could have been accidental. A jury question is presented. Accordingly, the trial court erred in failing to give an instruction on involuntary manslaughter which is a lesser included offense.
VII. Sentencing
The appellant contends it was error for the trial court to render judgment and sentence immediately following the verdict over his objection. He requested a pre-sentence report and time to file and argue post-trial motions.
K.S.A. 22-3424(3) provides:
“If the verdict or finding is guilty, judgment shall be rendered and sentence pronounced without unreasonable delay, allowing adequate time for the filing and disposition of post-trial motions and for completion of such pre-sentence investigation as the court may require.” (Emphasis added.)
The discussion of this statute in Vernon’s Kansas Statutes Annotated, Code of Criminal Procedure, § 22-3424 states:
“. . . Subsection (3) provides more flexibility in fixing the time for sentencing . . . The standard ‘without unreasonable'delay’ is found in Rule 32 (1), F.R. Cr. P. . . .” (p. 332.)
Unlike federal law, the filing of a pre-sentence report is discretionary in Kansas. The defendant may be sentenced immediately after a plea of guilty or a conviction.
Pre-sentence reports are valuable tools and should be given close attention by sentencing judges so that offenders may receive fair sentences based upon the best available information rather than inadequate guesswork. (State v. James, 223 Kan. 107, 113, 574 P.2d 181 [1977].) While no error exists in the case before us, the better practice would be for trial courts to consider the pre-sentence report in their determinations.
The appellant further asserts the trial court erred in considering evidence of a thirteen-year-old grand larceny conviction to en hance his sentence to two consecutive life sentences. The appellant does not challenge the sentence on appeal.
As a general rule a sentence, within the statutory limits, will not be set aside on appeal unless it is so arbitrary and unreasonable it constitutes an abuse of judicial discretion. (State v. Coe, supra at 167.) Moreover, the exercise of discretion by a prosecuting attorney in seeking to invoke the provisions of the Habitual Criminal Act, absent a showing of willful, designed or deliberate discrimination, is not a violation of the due process or equal protection provisions of the Fourteenth Amendment to the Constitution. (State v. Sully, 219 Kan. 222, Syl. 10, 547 P.2d 344 [1976]; and State v. Troy, 215 Kan. 369, 524 P.2d 1121 [1974].) Remoteness in time does not render the sentence suspect. (State v. Sully, supra at 230, where the convictions were ten and fifteen years old; and Baker v. State, 213 Kan. 874, 518 P.2d 537 [1974], where a 32-year-old conviction was used.) Thus, the appellant’s argument on this point has no merit.
VIII. New Trial
Finally, the appellant contends the trial court erred in overruling his motion for a new trial. During the trial Jack Shearer, a nurse-anesthetist, testified as to the range at which the appellant held the gun from the victim’s head based upon his experience with similar shotgun wounds. He stated he gained part of this experience from his service in the army for one year in Viet Nam. Subsequently, defense counsel discovered Mr. Shearer had never served in Viet Nám; instead, he served as a nurse-anesthetist at Fort Leonard Wood, Missouri, where he treated many Viet Nam veterans.
It is well-established law new trials are not granted on the basis of newly discovered evidence which tends merely to impeach or discredit the testimony of a witness. (Davis v. State, 210 Kan. 709, 716-17, 504 P.2d 617 [1972]; State v. Theus, 207 Kan. 571, 485 P.2d 1327 [1971]; and State v. Watson, 204 Kan. 681, 466 P.2d 296 [1970].) Nor is recanting testimony involving perjury looked upon with favor in the granting of a new trial. (See State v. Watie, Heard and Heard, 223 Kan. 337, 347, 574 P.2d 1368 [1977] and cases cited therein; Annot., 38 A.L.R.3d 812 [1971].) No prejudice resulted from the testimony here. At the hearing on the motion for the new trial the witness explained his confusion in the original questioning and apologized to the court. He was qualified to state an opinion based upon his observations of wounded men, and the trial court did not abuse the exercise of its power of discretion in denying the motion for new trial on this ground.
The judgment of the lower court is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the Board of Education of Unified School District No. 501 of Shawnee County, Kansas (U.S.D. #501), from an order of the district court finding that an impasse existed pursuant to the provisions of K.S.A. 1977 Supp. 72-5413, et seq., between appellant and National Education Association-Topeka, Inc., (NEA-T).
After several months of negotiating, NEA-T filed a petition in the district court seeking the declaration of an impasse under K.S.A. 1977 Supp. 72-5426. After a hearing, as required by the statutes, the district court found an impasse existed in the negotiations between U.S.D. #501 and NEA-T and ordered that im passe resolution procedures commence in accordance with K.S.A. 1977 Supp. 72-5427 and 72-5428. U.S.D. #501 appealed the determination of the district court on the basis that it was a final order under K.S.A. 60-2102(a)(4). The proceeding in the Court of Appeals was transferred to this court. NEA-T filed a motion to dismiss the appeal on the ground that the Court of Appeals and this court lacked jurisdiction.
Due to the urgency of the matter, and the public interest involved, the motion to dismiss was given a preferential setting in this court, has been thoroughly briefed by the parties and was orally argued on June 9, 1978.
This court, having examined the record and given the matter due consideration, finds that an order declaring an impasse under the Professional Negotiations Act, pursuant to K.S.A. 1977 Supp. 72-5426, is not an order subject to appeal to the Court of Appeals or to this court under any of the statutes of the State of Kansas.
This brief opinion announcing the decision of the court will be supplemented by a formal opinion to be filed at a later date.
The appeal from the order of the district court is dismissed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by plaintiff Glen Beck from a summary judgment wherein the trial court invalidated a mortgage plaintiff held on land owned by defendant Keith Brooks.
On June 17, 1971, Keith purchased two combines and other equipment from plaintiff Beck, an Allis-Chalmers dealer in Buffalo, Oklahoma. The transaction was evidenced by a retail sales installment contract and security agreement. In addition to the security agreement attached to the contract, Keith executed a real estate mortgage for certain real estate in Smith County, Kansas, which he described on the mortgage as “80 acres SE Y2 19-5-11.” On a separate financing statement he described the property also as “80 acres SE Y2 19-5-11.” This financing statement was filed with the Osborne County register of deeds on July 14, 1971.
The description of the real estate was provided by Keith’s mother, defendant Gertrude E. Brooks, when Keith telephoned her for the description of his land.
In actuality, Keith did not hold fee title to 80 acres located in the south half section of land in Section 19-5-11 of Smith County at the time he executed the mortgage to plaintiff Beck on June 17, 1971; however, he did hold an undivided one-fourth interest in the entire 320 acres comprising that half section, which he acquired at his father’s death in 1963. Gertrude held an undivided one-half interest in the 320 acres and Keith’s brother, Randall, held the remaining undivided one-fourth interest. In 1972, pursuant to a family settlement, Keith acquired full title to 80 acres in the half section, described as “80 acres E Vi SE Va 19-5-11.”
In February and March of 1972, Gertrude wrote Allis-Chalmers Credit Corporation two letters concerning the real estate covered by the mortgage. In her first letter she wrote:
“Keith said supposed to let u know about the land. 80 A Keith, 80 A Randall, 160 A Mother. After her death 160 apiece to sons.”
The second letter stated:
“In regard to your letter about the land. I sent you your information some time ago. U should rec’d it. But Keith has 80 A Northeast 80.”
“Keith has 80
“Randall has 80
“Mother 160”
On July 2, 1973, Keith executed a note and mortgage on the eighty acres in favor of his mother and recorded them with the Smith County register of deeds. On July 12, Allis-Chalmers attempted to record its mortgage. On July 13, the register of deeds returned the mortgage to Allis-Chalmers, noting the real estate description was incorrect; but the register of deeds supplied the correct description and indicated she would record the mortgage if the correct description were placed on it. Allis-Chalmers corrected the mortgage and returned it to the register of deeds on July 18, when it was recorded.
When Keith became delinquent on his payments for the equipment, the defendants were informed the combines would be repossessed if payments were not made. They were informed that if the machines were repossessed they would be sold and if any deficiency existed the mortgage on the land would be foreclosed.
This action was filed after Keith failed to pay the deficiency. Gertrude was made a party because of the mortgage executed on July 2, 1973.
During discovery plaintiff deposed Keith. In his testimony, Keith admitted the purchase of the combines from plaintiff; that he knew and intended to mortgage his land in order to get the combines; that he called his mother in Kansas to get the legal description of his property and gave the description to plaintiff; that he had been given a good deal on his old combines; that the price on the new combines was fair; and that at no time had there been misrepresentation, fraud or overreaching by the plaintiff.
On defendants’ motion for summary judgment the trial court ruled that the alteration made on the mortgage, inserting the correct legal description of Keith Brooks’ land, voided the mortgage and that the doctrine of after-acquired property did not apply to a mortgage absent a ratification of the mortgage by the mortgagor. Judgment was entered for defendants. For the reasons set forth below the judgment of the trial court is reversed.
The facts of this case demand application of the doctrine of equitable mortgages. It was undisputed, and Keith admitted, that he knew and intended to execute a mortgage only on the land he owned in order to purchase the combines. He called his mother to get a legal description of the land and she apparently gave him an incorrect description. It is of further significance that Gertrude wrote two letters to Allis-Chalmers Credit Corporation in an effort to describe the land owned by Keith.
The theory of equitable mortgages has been utilized to prevent injustice and inequity. (E.g., Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862 [1977]; Benton v. Benton, 215 Kan. 875, 528 P.2d 1244 [1974]; Ingram v. Ingram, 214 Kan. 415, 521 P.2d 254 [1974]; Rex v. Warner, 183 Kan. 763, 332 P.2d 572 [1958]; Farmers State Bank v. St. Aubyn, 120 Kan. 66, 242 Pac. 466 [1926]; Fitzgerald v. Fitzgerald, 97 Kan. 408, 155 Pac. 791 [1916]; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396 [1912].) If it appears the purpose of the transaction was to charge real property as security for an obligation, the lien is created regardless of the form of the agreement. (Hill v. Hill, 185 Kan. 389, 345 P.2d 1015 [1959]; Charpie v. Stout, supra.)
Where one party advances money to another upon the faith of an agreement by the latter to secure its payment by a mortgage upon specified lands, but which mortgage is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of the execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. (Hill v. Hill, supra; Foster v. Bank, 71 Kan. 158, 80 Pac. 49 [1905].)
It is of no consequence that defendant Keith Brooks obtained legal title to the property after the defective mortgage was executed. The fact remains, and is undisputed, that both defendants acted as though Keith held full title to the eighty acres of land at the time the mortgage was executed. K.S.A. 58-2207 applies the doctrine of after-acquired title to the grantor-grantee situation when the grantor does not obtain title until after he has conveyed the property. The statute embodies the principle of equity which estops a grantor from profiting from his own wrong by denying he had title to real estate when he earlier represented that he had title. The same principle applies to a mortgagor who represents to a mortgagee that he has title to real property described in the mortgage. (55 Am. Jur. 2d, Mortgages, §§ 242 and 243, pp. 344-46; 59 C.J.S., Mortgages, § 185, pp. 237-41.)
The trial court held that the original mortgage was invalidated when it was materially altered by the insertion of the proper legal description of the property. The correction of obvious mistakes, omissions, or inconsistencies is not a material alteration of an instrument when it does not change the terms, rights or obligations of either party from that originally intended. (4 Am. Jur. 2d, Alteration of Instruments, § 5, pp. 6-8, and § 38, p. 38. See also, Boys v. Long, 268 P.2d 890 [Okla. 1954].)
The decision of the trial court is reversed. On remand the trial court is instructed to enter judgment in favor of plaintiff and impress upon the property which is the subject of this lawsuit an equitable mortgage in favor of plaintiff.
The question of the priority of the Brooks mortgage over the Allis-Chalmers mortgage remains for trial. The trial court is instructed to determine this issue in accordance with the rule of law set forth in Foster v. Bank, supra at 162-63.
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Per Curiam,:
This action was filed by several Gove County residents to enjoin the Gove County Commission from assessing fees, pursuant to a resolution adopted by the Commission, for collection of solid waste materials by the county’s designated solid waste collector. The trial court found that the Gove County solid waste resolution and the contract between the Commission and R. E. Ringer, for collection of the waste, were valid and enforceable and denied the petition for a permanent injunction. Several of the original plaintiffs have appealed.
In the spring of 1975 the Gove County Commission adopted a resolution to put into effect a solid waste management system in compliance with K.S.A. 65-3401, et seq., and also entered into a contract with R. E. Ringer for the collection of the solid waste. As Ringer had an interest in the issues before the court, he was allowed to intervene.
The learned trial judge filed his memorandum opinion and judgment as follows:
“On August 18, 1976, the plaintiffs herein filed an action for a temporary and a permanent injunction against the Board of County Commissioners of Gove County, to restrain them from holding hearings or assessing fees or charges under a resolution adopted March 31, 1975, establishing a solid waste management system for Gove County.
“On September 14, 1976, a hearing was held on plaintiffs’ application for a temporary injunction. The plaintiffs appeared by their attorney, Alan L. Rupe. The defendants appeared by their attorney, John Eland. R. E. Ringer was permitted to intervene and appeared by his attorney, Allen Shelton. The facts necessary to the determination of that issue were stipulated by the parties. From these stipulated facts it appeared that there were essentially two groups of plaintiffs. The first and largest group consisted of Gove County residents who admittedly create solid waste at their residence or other establishment, but who claim the right to dispose of such waste by some method other than the use of the contractor provided for in the resolution and by contract of the County Commission with R. E. Ringer, executed March 24,1975. This group sought to enjoin the placement of delinquent service fees or charges as an assessment against their real estate for collection as an ad valorem tax on the grounds that the resolution was unconstitutional as applied to them and illegally exceeded the authority of the enabling statutes.
“The Court declined to issue a temporary injunction to this group on the grounds that no irreparable injury would result from placing their delinquent charges on the ad valorem tax rolls inasmuch as the Court, upon final hearing on the petition for permanent injunction, could enjoin the collection of such tax or proceedings to enforce collection, if the tax were found illegal, under K.S.A. 60-907(a).
“The second and smaller group of plaintiffs consisted of persons who claimed to generate no solid waste during certain months, or who had been doubly charged, or who were entitled to a low income allowance. The resolution provides for hearings before the Board of County Commissioners for correction of errors in charges, and the resolution exempts people who generate no solid waste during certain periods and allows a reduced charge for low income. The Court declined to enjoin the scheduled hearing before the Board of County Commissioners with respect to plaintiffs in this second group, on the grounds that such a hearing was the proper forum to resolve their complaints in the first instance.
“On October 19,1976, this case came on for trial on the issuance of a permanent injunction. The appearances were the same as at the hearing on the temporary injunction, and the parties again stipulated to the facts necessary for decision. The matter was then argued and taken under advisement by the Court.
“From the pleadings, the stipulated facts, the briefs and arguments of counsel, the Court finds as follows:
FACTUAL CONCLUSIONS
“There is no factual dispute and the stipulations of fact, numbered 1 through 9 and filed October 19,1976, are incorporated herein. Summarized for purposes of this opinion, the facts are as follows:
“On March 31, 1975, the Gove County Commission adopted a resolution establishing a solid waste management system for Gove County, Kansas. The Commission had previously, on March 24,1975, contracted with R. E. Ringer to provide for collection of solid waste in Gove County and maintenance of the solid waste disposal area. The contract is for a five year term which exceeds the terms of the present commissioners.
“The resolution provides for collection, at least once each week, from all residences billed for city water in the five cities in Gove County, and from commercial, industrial, governmental and institutional establishments in Gove County whether billed for water service or not. The resolution provides a schedule of fees with single family residences set at the lowest rate and commercial, industrial, governmental and institutional divided into categories depending upon volume. Unpaid service charges, after a hearing before the Board of County Commissioners, are placed on the tax rolls as liens against the real property.
“The plaintiffs are generally persons whose fees are unpaid and constitute persons who dispose of and claim the right to continue to dispose of their solid waste by composting, burning, transporting to land owned or rented by them, using another contractor, or generating less than one bushel of solid waste per week. At least some of these persons could qualify to transport solid waste in compliance with all regulations of the state.
LEGAL CONCLUSIONS
“1) The plaintiffs challenge the resolution on the grounds that its classifications violate equal protection and that it is contrary to the authority granted in the Kansas Solid Waste Collection Act, K.S.A. 65-3401 et seq. They further challenge the legality of the contract with R. E. Ringer because it extends beyond the term of the present commission.
“2) The Constitutional Issue:
“It is apparent that the Gove County Resolution distinguishes between city residences and agricultural property or farm residences because it classifies as residential for service purposes, only, property within cities or so close thereto as to be on city water. It is also apparent that volume of use has been considered with respect to institutional, industrial, commercial, or governmental use where several categories of charges are provided but not in respect to residential use where one minimum charge is created. The plaintiffs’ argument is that a distinction between city and farm property is unreasonable, or a distinction between agriculture and commercial enterprises is unreasonable and that all Gove County property should, to some extent, bear a proportionate burden of the solid waste management problem. The plaintiffs further suggest that to allow charges for differing volumes within the commercial, industrial, institutional and governmental class and not with the residential class is likewise unreasonable.
“To some extent plaintiffs constitutional argument is premised upon their interpretation of SECTION 4(a) of the resolution which permits the contractor at his option to pick up solid waste from areas other than those for which a service charge is made. The plaintiffs’ argument is that this permits farms to utilize the service at no charge while placing the entire burden on city residences or commercial and other enterprises. There is nothing in the contract or resolution which prohibits the contractor from charging for such optional service or requires the contractor to furnish such service. There is nothing in the stipulated facts indicating such free service has ever been furnished or contemplated. The Court concludes that plaintiffs’ interpretation of SECTION 4(a) of the resolution is erroneous and that this section has no bearing on the constitutionality of the classifications of the resolution.
“Some general principles regarding equal protection are in order. ‘. . . Traditionally, the test utilized in determining if a legislative enactment violates equal protection principles is whether the classification bears a rational relation to the purpose of the legislation. . . . The legislature is presumed to act within its constitutional power despite the fact the application of its laws may result in some inequity. . . . The equal protection clause goes no further than to prohibit invidious discrimination.’ Manzanares v. Bell, 214 Kan. 589 [522 P.2d 1291 (1974)], at page 609.
“ . . There is no precise application of the rule of reasonableness in classifying, and equality permits many practical inequalities. There need not be an exact exclusion or inclusion of persons and things . . . The State enjoys a wide range of discretion in distinguishing, selecting, and classifying and it is sufficient if a classification is practical and not palpably arbitrary. . . .’ Manzanares, supra, page 612.
“Henry v. Bauder, 213 Kan. 751, Syl. 2 [518 P.2d 362 (1974)]. ‘The constitutional principle of equal protection does not preclude the State from drawing distinctions between different groups of individuals, but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’
“The constitutional principles above are equally applicable to county government. K.S.A. 65-3405 requires Gove County to develop a solid waste management plan. The protection of the health and welfare of the citizens requires the safe and sanitary disposal of solid waste. K.S.A. 65-3401. The plan should delineate areas where management systems are in existence and areas where solid waste management systems are planned to be available within a ten year period. K.S.A. 65-3405(c)(l); provides for extension consistent with needs of whole areas which will not contribute to pollution nor constitute a public nuisance. 65-3405(c)(3); and take into consideration existing plans, population trend projections, engineering and economics so as to delineate the area which may reasonably be expected to be served within ten years. 65-3405(c)(4).
“Viewed on the foregoing principles the plaintiffs’ constitutional attack must fail. The basic distinction between cities and isolated farm residences or agricultural property bears a reasonable relation to the disposition of solid waste for the protection of the public health. Agricultural property generates little or no solid waste. Farm residences may dispose of their waste on their own land, K.S.A. 65-3409, and the only danger of nuisance is to the farmer’s family, not the public. The disposition of waste, including garbage, on property within a city carries an inherent danger of public nuisance. The regulation of the movement of waste through city streets, with its inherent danger of offensive and unwholesome odors has long been recognized as being within the public police power as bearing some relation to public health. O’Neal v. Harrison, 96 Kan. 339 [150 Pac. 551 (1915)]; Kirksay v. City of Wichita, 103 Kan. 76 [173 Pac. 12 (1918)]. It is not economically feasible (K.S.A. 65-3405 [c][4]), to provide such service to isolated farmsteads. Within the cities, the service is available to all and all are treated equally. Henry v. Bauder, supra.
“Likewise, there can be little argument that commercial, industrial, institutional and governmental establishments generate waste generally on a larger scale than residential property. Further, many such establishments have a need for pickups more frequently than once per week. Such considerations justify not only a different classification from agriculture but also a fee charge which varies with the volume and the number of pickups. It is to be noted that the monthly service charge in this class for minimum pickups and volume is the same as for residential property. Again, persons within like classifications are treated equally and the service is available to all in the class.
“The plaintiffs real objection to the Gove County Solid Waste Management Plan is not that the classification violates equal protection, but that the service is mandatory. From the stipulations it is readily apparent that the majority of the plaintiffs feel they have limited solid waste which they wish to transport and dispose of in their own manner without paying a service charge for a service they reject. They complain of a burden (the service charge) with no benefit (a service they reject and do not use.)
“The statutory argument on this point is more persuasive, but on the constitutional grounds the argument fails.
“Mandatory solid waste systems under the Kansas Act have twice been in the federal courts. Donnelly v. City of Eureka, Kansas, 399 F. Supp. 64; Uhl v. Ness City, Kansas, 406 F. Supp. 1012. In both cases the ordinances have been struck down because the service charge was tied to water shut-offs, but the mandatory service was not attacked. The reason is simple. The right to dispose of waste as one sees fit does not carry the same constitutional protection as does the right to water. The plaintiffs’ constitutional objection to mandatory service was answered long ago in O’Neal v. Harrison, supra, at page 342. ‘. . . It is conceded that the city may regulate the disposition of garbage, and impose rigorous rules as to the time and manner in which it shall be moved, because of the offensive and unwholesome odors arising from it. But it is argued that anyone has a right, of which he cannot lawfully be deprived, to haul it through the streets, so long as he conforms to the prescribed regulations - - that the conferring of a monopoly in that respect is not necessary to enforce them, that it sustains no relation to their enforcement, and is not reasonably adapted to promote that end. But manifestly obedience to the rules laid down for the handling of garbage may be more easily compelled - - the method adopted may be more efficient - - if it is all handled by one concern. . . .’ (emphasis supplied) See also 56 Am. Jur. 2d, Municipal Corporations, etc., Sec. 455-465.
“Moreover, a tax is not unconstitutional because one taxpayer receives a greater benefit from a public improvement or service than another. Cow Creek Valley Flood Prevention Ass’n v. City of Hutchinson, 166 Kan. 78, 90, [200 P.2d 279 (1948)]. The existence of a special benefit from a public improvement is to be determined by the administrative body, not the Courts, in the absence of palpable injustice. Hurley v. Board of County Commissioners, 188 Kan. 60, Syl. 1 [360 P.2d 1110 (1961)].
“3) The Statutory Issue:
“At the outset it is recognized that if the resolution or the contract exceed or abuse statutory authority they should be declared invalid and unenforceable by this Court. Schulenberg v. City of Reading, 196 Kan. 43 [410 P.2d 324 (1966)], at page 52: ‘. . . Courts have no supervisory power over the policy of municipal legislation and are not permitted to substitute their judgment for that of the governing body of the city. . . . Courts can only interfere to curb action which is ultra vires because of some constitutional impediment, or lack of valid statute, or because action under a valid statute is so arbitrary, capricious, unreasonable or subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power. . . .’
“The Gove County solid waste resolution and contract are the result of the Kansas Solid Waste Management Act, K.S.A. 65-3401, et seq. The act requires counties to develop a solid waste management plan, K.S.A. 65-3405, provide for the operation of a solid waste processing facility or disposal area, K.S.A. 65-3407, and authorizes cities and counties to provide for storage, collection, transportation, processing and disposal of solid waste, together with collection of fees and power to contract out their responsibilities, K.S.A. 65-3410. The actual plan is left to local authorities under rather broad guidelines and subject to regulations of the Secretary of Health and Environment.
“The plaintiffs contend that the Gove County resolution exceeds statutory authority and rely on two statutes. K.S.A. 65-3409 deals with prohibited acts. Section (a) prohibits dumping of solid waste on the surface of the ground or in the state waters without a permit. The statute then creates an exception as follows:
. . . Provided further, that this provision shall not prohibit individuals from dumping or depositing solid wastes resulting from their own residential or agricultural activities onto the surface of land owned or leased by them when such wastes do not create a public nuisance or adversely affect the public health.’
“The plaintiffs argue that this proviso gives them the right to transport solid waste anywhere in the county and dump on land owned or leased by them, and the commission resolution may not prevent this nor impose a service fee on those who operate under this statute.
“Such a construction is not merited. The proviso does nothing more than exempt persons who can comply therewith from obtaining a permit to avoid an unlawful act under the first sentence of the statute. The plaintiffs construction would permit numerous small dumps all over Gove County by persons who could manage to purchase or lease a dump site, when the express purpose of the entire act is to control solid waste disposal areas, K.S.A. 65-3407, and eliminate undesirable and inadequate solid waste management practices, K.S.A. 65-3401. A fair construction of the proviso is that it was intended only to exempt farm or rural property, for which an adequate and economically feasible collection system could not be devised, from obtaining permits.
“The plaintiffs make further references to K.S.A. 65-3410(a) which in connection with the counties’ power to create a solid waste management system uses the phrase, ‘including the levying of fees and charges upon persons receiving the service,’ and also authorizes a ‘schedule of fees to be imposed on real property . . . revenue from such fees to be used . . . where such services are provided.’
“The plaintiffs claim is that they don’t receive the service and accordingly the above provision exempts them from the fees. Again, plaintiffs’ construction is strained. The collection service is available to each plaintiff. Pickup service is furnished at least once a week to all persons who are billed. The fact that plaintiffs voluntarily chose not to avail themselves of the service is not susceptible of the construction that they are not ‘receiving the service’ or that fees are imposed or revenue used ‘where such service is not provided.’ The Gove County resolution does not lack statutory authority or exceed the authority granted. It does not constitute an arbitrary abuse of the broad discretion granted by the enabling legislation.
“4) The Contract Issue:
“The county may contract with a private individual to carry out any or all of its solid waste management plan under K.S.A. 65-3410(c). The contract of March 24, 1975, with R. E. Ringer for a primary term of five years is authorized by this state. When a county commission contracts beyond its term the following rule applies:
“State, ex rel., v. City of Garnett, 180 Kan. 405, [304 P.2d 555], at page 409: ‘And the test generally applied is whether the contract at issue, extending beyond the term, is an attempt to bind successors in matters incident to their own administration and responsibilities or whether it is a commitment of a sort reasonably necessary to protection of the public property, interests or affairs being administered. In the former case the contract is generally held invalid and in the latter case valid.’
“Solid waste disposal is an ongoing problem vitally concerned with the public health and welfare. Private contracts are expressly authorized. Absent the contract the county would have made considerable expenditures or commitments on men and equipment to carry out its responsibilities of solid waste management. There is no question but what such a contract is reasonably necessary to the protection of a public interest rather than an incident of a single administration.
“The Court is aware that Gove County could have developed a solid waste management program which might have been more palatable to the plaintiffs. Strict regulation or licensing of private transportation coupled with a use charge at the disposal site for example. In absence of unconstitutionality, abuse of statutory authority or unreasonableness to the point of fraud, Courts have no power to substitute their judgment over the legislative judgment of the elected county commission. Schulenberg, supra.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Gove County solid waste resolution of March 31,1975, and the contract with R. E. Ringer of March 24, 1976, are valid and enforceable; that the plaintiffs are not entitled to a permanent injunction to prevent their delinquent service charges from being placed on the tax rolls, and that the defendants have judgment herein for their costs.”
We have carefully reviewed the record, find no error, and adopt the opinion of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The ultimate question we are called upon to decide is whether Larry W. Brown should have been permitted to have his action against K. N.-Fitzpatrick reinstated almost two years and four months after it was ordered dismissed without prejudice for lack of prosecution. The order reinstating the action was made ex parte and without the defendant Fitzpatrick having an opportunity to oppose the reinstatement.
A motion to set aside the ex parte order was filed and argued but the trial judge refused to set aside his order of reinstatement. He restored the case to the trial docket. The defendant Fitzpatrick appeals. We reverse.
A recital of the essential facts and dates necessary to an understanding of our decision is in order. The plaintiff, Brown, was the holder of a $2,500.00 promissory note dated January 20, 1969, due in six months. The note was executed on behalf of Triple “D” Drilling Co., Inc., by R. R. Dutton, president. The signature of K. N. Fitzpatrick appeared on this note as “co-signer.” It appears from the petition filed May 1,1970, that nothing had been paid on this note. Fitzpatrick filed an answer and a cross-claim. A default judgment was taken on June 8, 1970, against Triple “D” Drilling Co., Inc. No action was taken on the Fitzpatrick answer and cross-claim. Execution was issued on the judgment against the drilling company and returned unsatisfied. Three years passed.
The civil appearance docket of the court contains the following entry by the clerk: “August 24, 1973 Dismissed for lack prosecution. w/o prej.” The trial docket of the judge contains a similar entry. No written journal entry covering this dismissal appears in the files of the case. The next entries appearing on the civil appearance docket and on the trial docket are dated December 22, 1975, and read: “Reinstated as to def Fitzpatrick.” The journal entry covering the reinstatement was prepared by the former attorney for plaintiff, John K. Leighnor, and was signed by the district judge. It reads: “Now on this 22nd day of December, 1975, the above-entitled matter is reinstated as to the Defendant, K. N. Fitzpatrick.” Nine days later the attorney for Fitzpatrick filed a motion to set aside the court’s ex parte order. This motion was argued to the court. Fitzpatrick pointed out that prior to the dismissal the clerk entered the following notation: “Oct. 25 [1972] Notice of Dismissal mid.” in the civil appearance docket. The attorneys for the parties debated whether this entry was sufficient proof of compliance with the notice requirements of K.S.A. 60-241(a)(2). The dismissal for lack of prosecution was not entered on the dockets in court until August 24,1973, ten months after this notice of dismissal was mailed by the clerk.
During the arguments on the foregoing motion it was pointed out that the note was due on July 20, 1969, and the five year statute of limitations, K.S.A. 60-511, would have run on July 20, 1974. This was after the action against Fitzpatrick had been dismissed and a year and four months before the action was reinstated. We note that on dismissal for lack of prosecution the action failed otherwise than on the merits, the five year statute of limitations had expired, yet no new action was commenced within six months after such failure as required by K.S.A. 60-518. It would appear too late for a separate action to be filed on said note.
The attorney for plaintiff argued that K.S.A. 60-260(b)(6) authorized the court to set aside any judgment which was not properly entered and to do so upon its own motion. He did not explain why he felt the cause was not properly dismissed for lack of prosecution.
Fitzpatrick’s motion to set aside the ex parte order was overruled. No reason was given by the court. This appeal followed.
Initially the plaintiff-appellee challenges the jurisdiction of this court to hear the appeal. He asserts the order reinstating the action against Fitzpatrick and the order overruling the motion of Fitzpatrick to set aside the order of reinstatement are not final orders as required under K.S.A. 60-2102(o)(4) (Corrick) which justify an appeal as of right. Such orders had the effect of requiring a trial of the issues presented in the pleadings filed by these parties in 1970.
An order granting a new trial is generally not appealable as a final judgment. See Bates & Son Construction Co. v. Berry, 217 Kan. 322, 537 P.2d 189 (1975); Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964). However, an exception to the rule stated above is recognized by this court in cases where an order granting a new trial under K.S.A. 60-259(o) is challenged on jurisdictional grounds. The “jurisdictional exception” was adopted by this court from a line of federal cases interpreting a similar federal rule. Fed. R. Civ. Proc. 59 (d). The exception was first applied in Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P.2d 398 (1966), and has since been recognized in Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356 (1976), and in Herbel v. Endres, 202 Kan. 733, 736, 451 P.2d 184 (1969). The Kansas Court of Appeals more recently had occasion to discuss this exception in Smith v. Morris, 2 Kan. App. 2d 59, 574 P.2d 568 (1978).
The present appeal comes from the order reinstating the action under authority of K.S.A. 60-260. The Kansas cases cited above relate to K.S.A. 60-259. K.S.A. 60-260 was fashioned after its federal counterpart, Rule 60 (b). Fed. R. Civ. Proc. 60 (b). The federal cases have applied the “jurisdictional exception” to orders relieving a party from a judgment or order under authority of Federal Rule 60 (b). See Stradley v. Cortez, 518 F.2d 488, 492 n. 5 (3rd Cir. 1975); Rinieri v. News Syndicate Co., 385 F.2d 818, 821-822 (2nd Cir. 1967); Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 543 n. 5 (2nd Cir. 1963).
This court is aware of certain criticism by some text writers who say the “jurisdictional exception” is unwise and leads to many interlocutory appeals. See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2871, p. 260 (1969). See also dissenting opinion in Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. at 135. However, in the interest of consistency with the federal case law this court feels the “jurisdictional exception” should be extended in Kansas to orders under K.S.A. 60-260(b). Accordingly we hold an exception similar to that stated in Syl. 2 of this opinion is recognized by this court in cases where an order granting relief under authority of K.S.A. 60-260 is challenged on jurisdictional grounds.
When such a challenge is made on jurisdictional grounds the question of jurisdiction on appeal is intertwined with the merits. Radack v. Norwegian America Line Agency, Inc., 318 F.2d at 543 n. 5. See also Smith v. Morris, 2 Kan. App. 2d at 62-63. Having determined the appeal is properly before us the next question is whether the trial court without motion or notice had jurisdiction to grant K.S.A. 60-260(b) relief where, as here, the action had been dismissed previously without prejudice. The 10th Circuit has held that the trial court does not lose jurisdiction over a case when it has been dismissed without prejudice if subsequently it is reinstated on proper notice pursuant to Rule 60 (b). Chief Freight Lines Co. v. Local Union No. 886, 514 F.2d 572, 576 (10th Cir. 1975). See also Williams v. Frey, 551 F.2d 932, 935 n. 2 (3rd Cir. 1977); L. P. Steuart, Inc. v. Matthews, 329 F.2d 234 (D. C. Cir.), cert. denied 379 U.S. 824, 13 L.Ed.2d 35, 85 S.Ct. 50 (1964).
Before the adoption of the present Code of Civil Procedure in Kansas a long line of cases had been handed down holding that trial courts do have the power to relieve parties from certain judgments and orders. See Goertz v. Goertz, 190 Kan. 75, 372 P.2d 268 (1962); State Investment Co. v. Pacific Employers Ins. Co., 183 Kan. 229, 326 P.2d 303 (1958); Federal Land Bank v. Richardson, 146 Kan. 803, 806, 73 P.2d 1005 (1937). However, this power was subject to certain statutory limitations as to time and nature of relief. See G.S. 1949, 60-3007, et seq. Except in cases of mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order, and except in cases where new trials were granted within the time and in the manner prescribed by statute, the proceedings to vacate or modify were required under prior law to be by petition and summons. See G.S. 1949, 60-3011.
Under K.S.A. 60-260(o) clerical mistakes may be corrected “by the court at any time of its own initiative or on the motion of any party.” However, under 60-260(b) it is provided:
“(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . .”
At the end of subsection (b) we find the following:
“[T]he procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.”
We can see a need for requiring a motion in writing to be filed to obtain relief pursuant to 60-260(b). Six reasons are listed in the statute as possible bases for relief. To obtain relief based upon reasons (1), (2), and (3) “the motion shall be made” not more than one year after judgment, order, or proceeding. If relief is sought for reasons (4), (5), or (6) “the motion shall be made within a reasonable time” after the judgment, order, or proceeding. Both time limitations can be determined only by reference to the date a motion is made. Therefore, the filing of a motion is contemplated by the statute and a motion in writing is required if a proper record is to be made of the proceedings below.
The appellant urges a lack of due process as an additional reason why the court’s order reinstating plaintiff’s cause of action cannot be upheld. An order dismissing an action for lack of prosecution is a final order unless and until it has been set aside on motion as prescribed by 60-260(b) or by an independent action. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Schulze v. Board of Education, 221 Kan. 351, Syl. 3, 559 P.2d 367 (1977); Wertz v. Southern Cloud Unified School District, 218 Kan. 25, Syl. 4, 542 P.2d 339 (1975). The order of the trial court reinstating the action against the defendant, K. N. Fitzpatrick, was entered sua sponte without notice and without an opportunity to be heard or defend. We agree that this did not afford the defendant due process of law.
We hold that K.S.A. 60-260(h) does not authorize a district court to grant relief on its own initiative. Subsection (b) requires that a motion be filed and notice be given to all parties affected setting forth the reasons for the proposed action. This holding is in accord with Dow v. Baird, 389 F.2d 882, 884 (10th Cir. 1968). Contra, Bucy v. Nevada Const. Co., 125 F.2d 213, 217 (9th Cir. 1942).
Accordingly the action of the trial court of its own initiative was outside the authority granted by K.S.A. 60-260(fo) and was ineffective. The court had no jurisdiction to set aside the order entered two years, three months, and twenty-eight days before or to reinstate the action of its own initiative without notice and opportunity to be heard.
The judgment of the lower court reinstating the cause of action against K. N. Fitzpatrick is reversed. | [
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The opinion of the court was delivered by
Holmes, J.;
This is an appeal by defendant-appellant, Kenneth L. Finkle, from a conviction by the court of a violation of Section 37 of Ordinance No. 248, of the City of Altamont. Ordinance No. 248 is the Standard Traffic Ordinance for Kansas Cities prepared by The League of Kansas Municipalities.
Section 37 reads:
“Sec. 37. Racing on Highways; ‘Drag Race’ and ‘Racing’ Defined, (a) No person shall drive any vehicle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition.
“(b) For the purpose of this section, the term drag race means the operation of two (2) or more vehicles from a point side by side at accelerating speeds in a competitive attempt to out-distance each other, or the operation of one (1) or more vehicles over a common selected course from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such vehicle or vehicles within a certain distance or time limit.
“(c) For the purpose of this section, the term racing means the use of one (1) or more vehicles in an attempt to outgain, out-distance or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.”
This section of the ordinance is similar to K.S.A. 8-1565(a), (b) and (c).
Defendant was charged, by citation, on a Uniform Traffic Ticket and Complaint with driving his automobile in an unlawful “exhibition of speed.” Defendant, at all stages of the proceedings in both the Municipal Court and District Court, contended the citation failed to charge a crime under the ordinance. While defendant does not question the constitutionality of the ordinance itself, he does contend that an allegation of “exhibition of speed” fails to state a crime and is so vague and indefinite that a person charged in such terms could not be expected to understand the nature and elements of the alleged violation.
We agree.
In the instant case there was no evidence of racing or drag racing as defined in the statute. There was no evidence of any race, competition, contest or test. The only evidence was the testimony of a city police officer. The officer testified that while off-duty he observed the defendant drive his automobile from a parked position at the curb, spin his tires, throw some gravel and turn the corner at a speed of 10 to 15 miles per hour. The officer described this activity as a “jackrabbit start.” During cross-examination the officer answered questions as follows:
“Q. All right. Now, do you of your own knowledge know what comprises exhibition of speed? What does that mean?
“A. Squealing your tires, fishtailing the rear end of your car, jackrabbit starts.
“Q. Is there some provision in the City of Altamont against that?
“A. Well, under the Ordinance 248 which the City adopted of the State Statute.
“Q. That ordinance defines drag racing; is that correct?
“A. Defines drag racing, racing, racing on highways; drag racing, racing defined. But it also covers exhibition of speed or acceleration.
“Q. Does that involve two cars?
“A. No, sir.
“Q. Or long distance endurance driving?
“A. It don’t state this — not in here.
“Q. That’s in your opinion?
“A. In my opinion, yes.
“Q. So in your opinion, if someone squeals his tires, he can be charged with exhibition of acceleration?
“A. Yes, sir. I would think it would be highly possible to take off from a corner, curb or from a stop sign without having to spin your tires.”
The question of the sufficiency of the allegations of a complaint or information has been before this court numerous times in a variety of situations.
In State v. Williams, 196 Kan. 274, 411 P.2d 591 (1966), the court said:
“It is elementary that an information under which a defendant is charged with a criminal offense must be legally sufficient, in that it must charge an offense under the statute with enough clarity and detail to inform the defendant of the criminal act with which he is charged. . . (at page 285.)
The test to be applied to a criminal statute or ordinance when attacked as being vague and indefinite was recently repeated in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977):
“. . . The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. . . .” (at page 4.)
See also Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962).
We have held that a complaint, even though phrased in the words of the statute and even though not attacked on a constitutional basis is still void if it does not advise the defendant of the nature of the accusation against him.
“. . . The defendant argues a number of propositions but does not contest the validity of the provision of the statute under which he was prosecuted, although his motion to quash the complaint was sufficient to raise that question. The court is not disposed to hold that a complaint is good when drawn under a statute that is unconstitutional, although the validity of the statute is not specifically questioned. The statute prescribes punishment for anyone who carelessly or negligently handles or exposes nitroglycerin, but does not say what acts constitute carelessness or negligence, thus necessarily leaving the jury to determine what is carelessness or negligence in any particular case. The statute does not name the acts which are prohibited, and a complaint following the statute, containing nothing but statutory allegations — no other would be necessary if the statute were good — does not inform the defendant of the nature and cause of the accusation against him. . . .” State v. Satterlee, 110 Kan. 84, 85, 202 Pac. 636 (1921).
The ordinance when considered in its entirety appears to speak primarily to racing, speed and acceleration tests, contests or competition. The mere charge of an “exhibition of speed” against a driver not engaged in any such test, contest or competition fails to charge any violation of the ordinance.
Nowhere in the ordinance is there any attempt to define the words “exhibition of speed or acceleration” or to delineate the proscribed conduct. Any interpretation of that portion of the ordinance, without additional allegations, is such that men of common intelligence must guess at its meaning and may differ as to its application and therefore the language standing alone does not meet the minimum standards required. Every attempt by a driver to proceed from a stopped position or to increase speed from a moving position could be considered by some persons as an “exhibition of speed or acceleration.” How is the driver to know when he is committing an offense, and when he is not, where the question of an “exhibition of speed or acceleration” is a matter for subjective determination lacking any objective standards?
Although appellee has submitted no case authority supporting the validity of the charge in this case our research indicates that similar language has been considered sufficient in two states. See People v. Grier, 226 Cal. App. 2d 360, 38 Cal. Rptr. 11 (1964) and People v. Heckard, 164 Colo. 19, 431 P.2d 1014 (1967). We have carefully considered both cases and, in view of what we have said above, do not consider them persuasive.
The judgment of the district court is reversed with directions to discharge the defendant.
Prager, Miller and McFarland, JJ., concur in result. | [
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The opinion of the court was delivered by
Miller, J.:
This case comes before us on a petition for review of an unpublished opinion of the Court of Appeals. The plaintiff, Donald Golden, commenced this action against the City of Overland Park, challenging the reasonableness of the city’s refusal to rezone his property from C-O (office building) to CP-1 (planned retail). The trial court, after numerous hearings and after twice referring the matter back to the city, ruled that the city’s denial of rezoning was unreasonable, and ordered the city to grant the requested zoning change. The city appealed and the Court of Appeals reversed.
The property involved is a tract of about 2.3 acres situated at the southeast corner of the intersection of 87th Street and Metcalf in Overland Park, Kansas. Golden purchased the property for $100,000 in February, 1966. The property was then zoned C-O (office building).
Shortly after he acquired the tract, Golden commenced plans to build an office building on the property. He hired an architect, and the architect’s drawing of the proposed building was published in the Kansas City Star on June 12, 1966. Thereafter, various changes were made in the plans, various studies were made, and the plaintiff actively sought to secure tenants for the planned building. He was unable to secure sufficient lease commitments, and for this reason he was unable to secure the necessary financing.
In 1972 plaintiff was approached by a firm desiring to build a car wash on the property. He negotiated a lease with the car wash firm, subject to securing a zoning change to permit that use. Application was then filed to change the zoning; the lease commitment expired before the request for zoning was heard; the matter was then dropped, and the zoning change was denied.
In 1974 plaintiff was approached by the Dubois Company, which was interested in building a small shopping center on the property. Dubois planned to sublet to the Tandy Company subsidiaries, Tandy Leather, Radio Shack, Color Tile, American Handicraft, etc. A purchase option, contingent upon rezoning, was entered into. Color Tile was the only committed sublessee. An architect was engaged, and a petition for a zoning change was filed with the City of Overland Park. The requested change was recommended for approval by the planning commission’s professional staff, but on August 12, 1974, the planning commission denied rezoning. The reasons stated for denial were that the original purpose was to preserve this area as a transition zone; increased traffic problems, particularly at night and on weekends, would be generated from a shopping center; and due to the aesthetics of the development and the effect on the surrounding neighborhood, increased pressure for zoning changes for other nearby areas could be anticipated.
Various changes were then made in the plans and the matter was presented to the city commission; it tabled the matter and referred it back to the planning commission for further study.
The planning commission again recommended denial of the application. The member of the planning commission who moved for denial expressed concern that carpet sale signs could be hung up after six months “that aesthetically don’t seem to be the transitional item that we anticipated here between the developments to the south and the north.”
Thereafter, the city council upheld the planning commission’s recommendation and denied rezoning. The only discussion on the motion was that the architect’s rendering was not a true portrayal of how the proposed building would appear, since the rendering portrayed no traffic, very few parked cars, no traffic lights, utility poles or street lights, and the plantings appeared too mature.
At each of the planning commission and city commission meetings, homeowners who lived north and east of the property appeared in opposition to the proposal. Primarily, they expressed concern over traffic congestion and increased litter and noise, problems which had arisen in connection with a small shopping area on 83rd Street, where there were convenience stores (open all night) and fast food establishments. These fears were also voiced by members of both bodies.
Metcalf, for some 10 blocks south of plaintiff’s tract, is primarily commercial. Immediately south of plaintiff is a tract zoned C-2, a more commercial classification than that sought by plaintiff, on which is situated an automobile dealership, where new and used motor vehicles are sold and serviced. East of and adjoining both plaintiff and the auto dealership are two-story apartments. North of plaintiff’s property, at the northeast corner of 87th and Metcalf, is a tract zoned C-l, on which is situated a savings and loan. To the east and north of the savings and loan are single-family dwellings in what is known as the White Haven addition. At the northwest corner of the intersection, and continuing both north and west, are single-family dwellings. Directly west of plaintiff’s tract, on the southwest corner at 87th and Metcalf, are two-story apartments. Immediately south of these and on the west side of Metcalf is a huge development, the King Louie bowling, skating and amusement center.
Trial was held before the court on August 28, 1975. On Sep tember 15, 1975, the court announced its decision. It made over thirty detailed findings of fact. The court concluded that the property was zoned for a use which cannot be realized; that plaintiff’s considerable efforts over a seven-year period were unsuccessful; but the court concluded that four of the factors which the city presumably based its decision upon precluded the court from finding in favor of the plaintiff. The court retained jurisdiction and continued the matter in order to give the plaintiff an opportunity to correct these four items and submit proposed changes to the city. These four items were:
“1. Access on 87th . . . that could influence backup traffic into the intersection [of 87th and Metcalf];
“2. A greater setback from the north side to make the entrance more attractive;
“3. Upgrading of the landscaping; and
“4. High aesthetics in architecture to blend in with the surrounding neighborhood with emphasis on small signs.”
The matter was again presented to the city council and the application for a change was again denied, this time for two reasons: because the landowner wished to retain the west entrance on 87th Street and because the landowner would not agree that logos could not be used as a part of the restricted sign area on the buildings.
Additional evidence was then presented to the district court and on March 8,1976, the district court announced its decision. It made additional findings of fact and recognized its limited jurisdiction, and concluded that the city was unreasonable in its denial of the use of logos for the reasons that logos are in use throughout the city of Overland Park and other shopping centers; that plaintiff agreed to make their logos small, to be included in the five per cent signage on the front of the facade; and that a corporation requesting a lease insists on the use of logos to display and advertise the named company in the building where it is doing business. With reference to the access from 87th Street, the court found that plaintiff had not met his burden to show that the requirements of the city were unreasonable; however, in view of the expense plaintiff had incurred, the court granted him an additional stay of fourteen days to determine whether or not he would accede to the decision of the city to limit access to one drive on 87th Street.
The plaintiff capitulated to the demands of the city on access, and presented his application again to the city for reconsidera tion. The city council again denied plaintiff’s request for a zoning change. The matter was then taken up again by the trial court, additional evidence was presented, and on July 23, 1976, the court entered its final order. The court reviewed the course of the lengthy proceeding, noted that plaintiff had completely capitulated to the demands of the city concerning the four issues, including that of access; found that the property was zoned for a use which the plaintiff could not realize; that the city increased the problem by zoning the tract of land to the south for a more intensive use, or CP-2 zoning for an automobile dealership, and by zoning the property to the north C-l, for a savings and loan; that immediately to the rear of the property are garden apartments for a transitional type of zoning from residential to more intensive use; that the property on the west side and across the street is zoned for a large bowling alley; that the taxes on the property are substantial ($2,172.30 in 1974) and that plaintiff simply cannot develop the property under the present zoning classification; that the professional staff of the city made a substantial study of all factors; that plaintiff has completely agreed to all the requested changes; and that the staff made a finding that the zoning sought is proper for transitional use of the property and that it in fact will serve the latter purpose as well on the proposed zoning request as an office building classification that the city demands that Mr. Golden use the property for. The court reviewed the case law, was mindful of the limitation of courts in reviewing the discretionary orders of an administrative body, and acknowledged the presumption that the city acted fairly and reasonably. The court concluded, however, that the action of the city was unreasonable, arbitrary and capricious. The trial court then granted the relief prayed for and ordered the city to grant the requested zoning change.
The Court of Appeals correctly stated the rules for judicial review of zoning ordinances. It said:
“In reviewing the trial court’s decision we bear in mind first of all the restricted role of the entire judiciary in zoning matters, as recently recapitulated in Highway Oil, Inc. v. City of Lenexa, 219 Kan. 129, 132, 547 P.2d 330:
“ ‘The rules for judicial review of municipal zoning ordinances and determinations are well established. “It must be understood that the governing body has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning” (Arkenberg v. City of Topeka, 197 Kan. 731, 734-735, 421 P.2d 213). The power of the district court, in reviewing zoning determinations, is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. In making the second determination, the court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence (Arkenberg v. City of Topeka, supra; Keeney v. City of Overland Park, 203 Kan. 389, 454 P.2d 456; Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244). “There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof”, by a preponderance of the evidence (Arkenberg v. City of Topeka, supra, p. 735; Creten v. Board of County Commissioners, 204 Kan. 782, 466 P.2d 263). The mark of unreasonable action by zoning authorities is “. . . when the action is so arbitrary 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 its unreasonableness lies, outside the realm of fair debate” (Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, Syl. ¶ 3, 518 P.2d 410).’ ”
“See also, Rickard v. Fundenberger, 1 Kan. App. 2d 222, 563 P.2d 1069.
“Secondly, we must recognize that in reviewing the trial court’s decision to determine whether it observed those restrictions, an appellate court must make the same review of the zoning authority’s action as did the trial court. Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 518 P.2d 410, and cases cited therein; Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457; Rickard v. Fundenberger, supra. That is because the ultimate question, whether the action of the zoning body was ‘reasonable’ or not, is one of law and not of fact; otherwise the courts would have no business at all reviewing an essentially legislative determination such as zoning. See e.g., Paul v. City of Manhattan, 212 Kan. 381, 389-90, 511 P.2d 244. Hence a court is not free to make findings of fact independent of those explicitly or implicitly found by the city governing body, but is limited to determining whether facts could reasonably have been found by the zoning body to justify its decision.
“Put another way, courts do not weigh the evidence before the city, and if the question is fairly debatable, ‘the court may not substitute its judgment for that of the city in order to change the decision on the debate.’ (Arkenberg v. City of Topeka, 197 Kan. 731, 738, 421 P.2d 213.)”
What has troubled trial and appellate courts alike is: What is “fairly debatable” and what is “reasonable”?
Where the great bulk of the evidence supports a proposed finding, is it “fairly debatable” because there is some evidence to the contrary? Any proposed change for a more intensive land use can easily be described as “likely to have a domino effect,” “against the public interest,” or as a possible cause of “traffic problems.” Any commercial establishment could be described as a producer of “noise,” “litter,” and “traffic.” We pause to note that the intersection in question is not an isolated residential crossroad; according to the record before us, over 32,900 vehicles passed through that intersection on the average day in 1974.
The governing body, as well as the planning commission, in the several determinations by those bodies, failed to set forth or specify the factors which either considered in arriving at a decision. Individual members of the city council, testifying months later, sought to then state the reasons for their individual votes.
A city, in enacting a general zoning ordinance, or a planning commission, in exercising its primary and principal function under K.S.A. 12-704 in adopting and in annually reviewing a comprehensive plan for development of a city, is exercising strictly legislative functions. When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. While policy is involved, such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues. Kropf v. City of Sterling Heights, 391 Mich. 139, 215 N.W.2d 179 (1974); Fleming v. City of Tacoma, 81 Wash. 2d 292, 502 P.2d 327 (1972); Fasano v. Washington Co. Comm., 264 Ore. 574, 507 P.2d 23 (1973); and see Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio State Law Journal 130 (1972).
A mere yes or no vote upon a motion to grant or deny leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action. A board, council or commission, in denying or granting a specific zoning change, should enter a written order, summarizing the evidence before it and stating the factors which it considered in arriving at its determination. The trial court here assumed from the record before it that the city fathers considered and based their initial rejection of the zoning change on four matters — access to 87th Street, setback of building from the north side, landscaping, and architecture and signage. If in fact the city was basing its rejection upon other factors, it was incumbent upon the city to disclose those factors upon the record, while the matter was yet before the city council, or, after the matter was raised in the trial court’s initial order, while the matter was before the trial court.
Those four factors are specific ones applicable to the property at hand. But what factors, generally, should a zoning body consider in hearing a request for change? The trial court enumerated six factors to be considered in determining whether a zoning ordinance is invalid because it precludes all reasonable use of the subject property. These factors are ones which it would be well for a zoning body to bear in mind when hearing requests for change. They are:
(1) The character of the neighborhood;
(2) the zoning and uses of properties nearby;
(3) the suitability of the subject property for the uses to which it has been restricted; •
(4) the extent to which removal of the restrictions will detrimentally affect nearby property;
(5) the length of time the subject property has remained vacant as zoned; and
(6) the relative gain to the public health, safety, and welfare by the destruction of the value of plaintiff’s property as compared to the hardship imposed upon the individual landowner.
To these we would add a consideration of the recommendations of permanent or professional staff, and the conformance of the requested change to the adopted or recognized master plan being utilized by the city. Master or comprehensive plans for the development of both cities and counties are authorized by the legislature, K.S.A. 12-704, K.S.A. 19-2916a. The legislature has stressed the making of such plans, and we believe they should not be overlooked when changes in zoning are under consideration.
As to additional factors to be considered in county planning, see K.S.A. 19-2916a where the legislature has enumerated the factors it considers important in the formulation of comprehensive plans for county development. Also, the legislature has listed in K.S.A. 12-715 the important factors to be considered by a board of zoning appeals, when considering variances from or exceptions to zoning ordinances. Conditions to be met by the applicant are enumerated in the latter statute.
Important factors to be considered in determining the validity of zoning ordinances are set forth by the Supreme Court of Illinois in the case of La Salle Nat. Bank v. County of Cook, 12 Ill. 2d 40, 145 N.E.2d 65 (1957), where that court said:
“Even though the validity of each zoning ordinance must be determined on its own facts and circumstances . . . yet an examination of numerous cases discloses that among the facts which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property ... (2) the extent to which property values are diminished by the particular zoning restrictions ... (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public ... (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner ... (5) the suitability of the subject property for the zoned purposes ... (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. . . .
“No one factor is controlling. It is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss. When it is shown that no reasonable basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails and the presumption of validity is dissipated. . . . The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.” (pp. 46-48.)
These factors were again cited with approval in La Salle Nat. Bk. v. City of Evanston, 57 Ill. 2d 415, 312 N.E.2d 625 (1974) and Smith v. City of Macomb, 40 Ill. App. 3d 658, 352 N.E.2d 697, 703 (1976).
The factors designated by the Illinois court are similar to the factors listed by the trial judge in the case at hand. We have listed all of these various factors here not as the exclusive factors to be considered in each zoning matter, but as suggested factors which may be important. Other factors may and no doubt will be of importance in the individual case.
Reasonableness remains the standard for review. K.S.A. 12-712; K.S.A. 19-2913. However, that standard will be more readily, more effectively, and more uniformly applied if zoning bodies will place in their minutes a written order delineating the evidence and the factors the board considered in arriving at its conclusion. Reviewing courts, then, will have a record to review and to act upon.
As the Court of Appeals noted, the critical finding of the trial court was that the plaintiff was unable to make any economically feasible use of his property under the existing zoning. Some of the members of the city council reasoned that 1,700,000 square feet of office space had been built in Overland Park during the years that plaintiff owned the property without developing it. Any dilemma now faced by the plaintiff at the present time, they reasoned, he brought upon himself by not having lowered his sights and having attempted to place upon his property a more modest office facility than the multi-story office building which he originally envisioned. This view, it seems to us, ignores the finding of the trial court, supported by an abundance of evidence, that at the time of trial there were many vacant office buildings in Overland Park, with a present overbuild in the Overland Park area; that there was a lack of money from mortgage bankers for office development; and that plaintiff’s property was not attractive for office development. These findings relate to the situation at the time the application for rezoning was presented. The issue is whether zoning for office construction was appropriate at the time of the hearing, not at some earlier date in Overland Park’s history. Paul v. City of Manhattan, supra. A massive overbuild of office space, whether in large office buildings or in small, leads to the inevitable conclusion that the demand for additional office space did not exist in Overland Park in 1974.
Plaintiff sought to establish a small shopping center for retail shops which would not be open on Sundays. Apparently the city places convenience stores and fast-food service shops under the same classification — CP-1—as it places all retail establishments. Such broad classifications are not the fault of the landowner. The protests of neighborhood residents, voiced at planning commission and council meetings, were for the most part against the establishment of convenience stores or fast-food shops — neither of which were proposed by the plaintiff. Protests, of course, may be considered; but protests against uses not proposed are not entitled to great weight, as the trial court held.
The trial court carefully considered each of the factors it enumerated. When it found that the city was reasonable in some of its objections to the requested change, it denied plaintiff relief but granted him an opportunity to conform to the changes requested by the city. Upon his conformance, the city remained adamant and refused the change. At that point, after weighing the evidence and all of the applicable factors, the trial court concluded that the plaintiff could not utilize his property for the purposes for which it was zoned. The court correctly found that the apartment complexes to the east and west of plaintiff’s land serve as transitional zoning between the single family residential areas and the more intensive commercial zoning. Reluctantly, the trial court found the city’s denial of the requested change unreasonable, and ordered the change from C-O to CP-1 zoning. The finding of unreasonableness by the trial court is amply supported by the evidence.
The judgment of the Court of Appeals is reversed, and that of the trial court is affirmed. | [
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Per Curiam:
This is an appeal from an assessment of income tax liability made by the director of taxation. The taxpayer, Phillip G. Wray, appealed directly to the district court of Shawnee county from the decision of the director of taxation without first seeking a hearing before the state board of tax appeals as authorized by K.S.A. 74-2438. On motion of the director of the department of revenue, the district court dismissed the appeal because the taxpayer had failed to perfect his appeal to the state board of tax appeals and as a consequence had failed to exhaust his administrative remedies. We have concluded that the district court properly dismissed the action. The taxpayer attempted to appeal to the district court directly from the order of the director of taxation. Such an appeal is not authorized by the appeal statute (K.S.A. 74-2426). The appeal to the district court under that statute must be from the order of the state board of tax appeals as distinguished from an order of the director of taxation. (Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 343, 492 P.2d 147 [1971]; Panhandle Eastern Pipe Line Co. v. Herren, 208 Kan. 119, 409 P.2d 416 [1971].)
The state board of tax appeals is the highest administrative tribunal established by law to determine tax liability. Constitutional issues may properly be considered by the state board of tax appeals. (Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 [1975].) A person aggrieved by any finding, ruling, order, decision, or other final action of the director of taxation is provided an appeal to the state board of tax appeals (K.S.A. 74-2438). Such an administrative appeal is a condition precedent to the right of an aggrieved taxpayer to appeal to a district court. Here the district court properly dismissed the taxpayer’s action for want of jurisdiction since the taxpayer failed to exhaust his administrative remedies as provided by statute.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The plaintiffs appeal from a summary judgment entered by the trial court. The trial court concluded the action was barred by the statute of limitations. The plaintiffs claim the defendants were estopped from defending on the basis of the statute of limitations.
The claim arose from the following facts gleaned from the pleadings, depositions and correspondence between the parties, which correspondence became part of the depositions of the parties.
George Bowen and his insurer, Farmers Insurance Group, brought an action against a garage owner, W. H. Westerhaus, and his insurer, Universal Underwriters Insurance Company. Bowen left his car with Westerhaus for repairs. The Westerhaus garage caught fire and the car was destroyed on January 4, 1971. Bowen was paid by his insurer, Farmers, for the loss of the car. Farmers became subrogated under the policy to Bowen’s damage claim against Westerhaus. Demand was made upon Westerhaus and the demand was turned over to his insurer, Universal. Universal wrote to Farmers requesting a proof of loss be filed with supporting papers. On March 31, 1971, Farmers submitted the proof of loss to Universal. Farmers requested a status report regarding the claim in May. In June Universal responded and advised Farmers there was some dispute between Universal and Travelers Insurance Company over primary coverage. Universal advised that this dispute was being decided by the insurance commissioner. Letters requesting a status report were sent by Farmers to Universal in September, October and December.
Across the face of the December letter sent by Farmers, Universal made a handwritten response which states: “Suit has been filed to determine whether our company or Travelers policy apply.” Thereafter Farmers received no response from Universal to its letters requesting status reports on their $5,005.99 subrogation claim until November, 1972.
On November 16, 1972, Universal wrote a long letter to Farmers in which it apologized for failure to answer Farmers’ letters and explained that a wrong claim number had been used and the letters had become temporarily misplaced. Universal attached copies of papers indicating that the other insurance company, Travelers, had issued a second garage keeper’s liability policy to Westerhaus. Universal further stated:
“. . . We, therefore, contend that both Travelers and UUIC [Universal] had GKLL coverage in effect on the date of loss, 1-4-71.
“We have always been ready to pay our half of your loss, or $2,503.00 but Travelers has been unwilling to pay their half. . . .”
In this letter Universal went on to explain the position being taken by Travelers, and indicated that Universal was in the process of filing a declaratory judgment action against Travelers to establish the respective liabilities of the two companies. In concluding the letter to Farmers, Universal stated:
. . Considering the above, we are sure that you can understanding our dilemma in that we want to pay our half of the losses involved, but do not know how we can do this as we could not obtain a release for our insured for 50% of the loss. Unfortunately, this will probably force litigation on the unwilling parties since it is doubtful that the DJ can be concluded within the next few weeks. We would appreciate your thoughts in regard to this problem.”
On November 28, Farmers responded to the letter and advised Universal that it would advise Travelers of its claim and attempt to elicit cooperation. Correspondence between Farmers and Universal concerning the status of the declaratory judgment action against Travelers continued through 1973. Universal advised it anticipated trial within that year.
However, on December 11, 1973, Universal advised Farmers that the declaratory action was still pending and it hoped to get an answer within ninety days. The three-year statute of limitations expired on January 4, 1974. Six months elapsed, during which time Farmers wrote two letters to Universal. In the last letter it referred to a previous telephone conversation, the substance of which is not disclosed in the record.
Farmers requested that Universal advise as to Universal’s position regarding the claim. On June 20, 1974, Universal advised Farmers that the court’s decision in the declaratory judgment action was adverse to Universal. In this letter Universal further advised Farmers:
“. • • I believe Kansas has a three-year statute of limitation provision for contractual obligations. In view of that fact, the statute has run on your claim. Since the statute has tolled, I must respectfully decline payment of your subrogation claim.”
The two insurance companies are the real parties in interest in the matter and although Bowen and Westerhaus were named as parties plaintiff and defendant along with their respective insurers we will refer to the parties bringing the suit as Farmers and the parties defending the suit as Universal. On November 9,1974, Farmers filed suit alleging liability on the part of Universal as the insurer of Westerhaus for the covered loss of Bowen’s car. Farmers alleged that Universal engaged in acts and conduct to procure plaintiff’s delay of this litigation for the purpose of pursuing a declaratory judgment action against a third party; that relying upon the acts and conduct of Universal plaintiff was induced to delay filing its claim in court until after the statute of limitations had run; that Universal had always acknowledged and agreed to pay one-half of plaintiff’s loss in the amount of $2,503.00, but requested delay in filing any claim until Universal could conclude the declaratory judgment action; and that Universal was estopped from asserting that the claim is barred by the Kansas statute of limitations.
Universal answered admitting that Bowen’s car was destroyed by fire through the negligence of the employees while being repaired in Westerhaus’ garage and the car had a reasonable market value of $5,005.99. Universal stated that its offer to pay one-half of the claim had been refused by Farmers; it denied it ever requested delay in filing plaintiff’s claim; and it alleged that plaintiff’s claim was barred by the statute of limitations.
After the pleadings were filed and depositions taken the trial court scheduled a pretrial conference to define the controverted issues. Prior to the conference the defendants filed a motion for summary judgment. The pretrial conference was never held. Instead the court heard arguments on the motion then took the matter under advisement and later entered summary judgment for defendants.
In considering a motion for summary judgment a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. (Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 2, 553 P.2d 315 [1976].) A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. (Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 [1976].) Whether a party acts in good faith depends not only on the facts and circumstances but also on his state of mind.
Under the facts disclosed by the pleadings in this case the three-year statute of limitations for an action brought on contract (see Continental Ins. Co. v. Windle, 214 Kan. 468, 520 P.2d 1235 [1974]) would have expired on or about January 4, 1974. The plaintiffs pled that defendants were estopped to take advantage of the statute. The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. (Maurer v. J.C. Nichols Co., 207 Kan. 315, 485 P.2d 174 [1971].)
This court has further said:
“The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.” (Browning v. Lefevre, 191 Kan. 397, Syl. ¶ 2, 381 P.2d 524 [1963].)
“. . . One who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement. . . .” (In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 [1976].)
“. . . 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].)
A case close to the present case is Cole v. City of Kanopolis, 159 Kan. 304, 153 P.2d 920 (1944). That case went to trial to the court which found for the defendant and held the statute of limitations had run. This court reversed. The plaintiffs owned bonds, issued by the defendant city, which were due in 1933. When these bonds reached maturity, the defendant sought to issue refunding bonds, which it delivered to its authorized agent to sell. The agent was to take up the outstanding bonds of the original issue. However, the agent embezzled some of the bonds. This gave rise to litigation. Defendant represented to plaintiffs that when the litigation was completed, arrangements would be made to take care of their bonds. After the litigation was completed, the city clerk wrote each of the plaintiffs a letter on July 19, 1938, which advised the bondholders to bring a “friendly suit” against the city in order to liquidate the bonds in a legal manner. The letter advised that the city was without funds and had to work out some legal manner of payment. Plaintiffs filed their action July 13, 1943. The city answered, pleading that the statute of limitations began to run on October 2, 1933, when the bonds were due. Plaintiffs replied that defendants were estopped from pleading the statute of limitations.
This court in that case reversed the holding of the trial court and said:
. . We think it quite clear that the city is estopped from contending that the statute of limitations began to run on October 2, 1933. The city in good faith was attempting to refund its outstanding issue of bonds, including the particular bonds in suit, but had been unfortunate in selecting an agent who embezzled some of the bonds, and naturally desired to recover from that source if possible. In the meantime the general scope of its letters to the holders of the bonds was that the bonds were not being repudiated, but would be paid when the litigation was through. . . .” (p. 307.)
Another similar case is Railway Co. v. Pratt, 73 Kan. 210, 85 Pac. 141 (1906). There the title to land was in dispute. The appellant railway company held a patent to the land from the United States. The land was also claimed by one Ard as a settler under the homestead and pre-emption laws. The railway conveyed the land to the appellee, Pratt. Much correspondence went on between appellant and appellee during the litigation which followed. On February 18, 1898, the railway company advised Pratt they had included his lands in the list of lands for which the company would have to refund the purchase price. However, the company was awaiting the court decision with reference to the lands:
“. . . If your title is made good, there is nothing then due you from the company; if, on the other hand, your title is not made good, we certainly will have to refund you the money, I suppose. But you ought to wait patiently, as the others are doing, until this litigation is determined. . . .” (p. 214.)
Further correspondence ensued, including a letter of June 28, 1901, again asking Pratt to await a final determination of pending cases, “. . . then we will determine what course we will pursue with reference to your claim for a refund of the money.”
The railway company then refused to refund the purchase price of the land. In a district court action against the company Pratt recovered $1,760.36 on January 8, 1904. The railway company appealed, claiming the cause of action was barred by the statute of limitations. This court held the defense of the statute of limitations was not available to the company. The court noted that when the conveyance was made both parties knew Ard would have to be judicially ousted. They understood that if the deed conveyed anything to Pratt this could only be determined after litigation, and both parties evidently intended to await the judicial determination. The court stated:
. . Up to that time Pratt waited patiently, at the request of the plaintiff in error, while it was testing its title to the land in long and repeated lawsuits. He was assured from time to time that his title would be ultimately sustained, that Ard did not have ‘a ghost of a show,’ and was requested to ‘wait patiently, as the others are doing, until this litigation is determined.’
“The plaintiff in error assumed control of the case commenced by Pratt, and carried it to the highest court, apparently confident of success. Pratt was at times urgent and insistent, but was pacified by the assurance that ‘our company is waiting to see what the decision of the circuit court will be with reference to these lands; if we win, we owe you nothing; if not, you will get your money.’ It is not suggested that Pratt failed in any respect to do his full duty in the premises. . . . After Pratt has so waited, and the company after full opportunity to test its claim has failed, it would be unconscionable for it to assert the very delay which it requested for the purpose of avoiding payment to Pratt of the money paid by him, for which he has received nothing. The ordinary rules of justice and fair dealing rebel at the suggestion. The facts furnish abundant reason for the application of the rule of estoppel to such conduct. We think this is a case where this rule should be applied.” (pp. 217, 218.)
A factual situation similar to our present case was presented in Safeway Stores v. Wilson, 190 Kan. 7, 372 P.2d 551 (1962), where a claim arose from the collision of two trucks. A claim was presented but defendant kept postponing payment of the claim for damage to plaintiffs truck until a personal injury claim had been determined. Further delay occurred by reason of defendant’s request for further documentation of plaintiffs proof of loss. After the period of the statute of limitations had passed the defendant declined payment of the property loss claim. The plaintiff sued and claimed the defendant was equitably estopped from asserting the bar of the statute of limitations. Plaintiff recovered and on appeal to this court it was held;
“. . . [T]his court is of the opinion appellants’ continued requests for delay until the personal injury suit was determined, the offer to pay the actual cost of repairs to the truck, and the request for further information as to damages for loss of use of that vehicle, were sufficient to lull appellee into a sense of security preventing it from filing the instant action before the running of the statute of limitations.” (p. 14.)
There can be no doubt under proper facts a party can be equitably estopped from reliance on the statute of limitations as a defense to the claim against him. The type of conduct which is sufficient to give rise to an estoppel generally raises a question of fact unless the facts are stipulated or depend upon the interpretation of unambiguous written documents. (39 A.L.R.3d, Statute of Limitations — Negotiations, p. 127.)
In the present case the parties did not stipulate the facts. The letters which passed between the parties were in documentary form but there appears to have been a misunderstanding conveyed by the wording in the letters. Defendants contend the plaintiffs knew or should have known from the correspondence that the declaratory judgment action would not be completed until after their claim would be barred. Defendants further argue they never specifically requested that plaintiffs delay filing the claim. They point to one of the letters in which they stated the delay would probably force litigation on the “unwilling parties.” Defendants further contend they made several offers to pay plaintiffs one-half of their claim and plaintiffs refused to accept the same.
The plaintiffs, on the other hand, argue that defendants represented they would pay the claim as soon as the declaratory judgment action was terminated, that plaintiffs relied in good faith thereon, that the offer to pay one-half of the claim was an affirmative inducement to delay filing, that plaintiffs never refused to accept such payment, and that inequitable consequences would result to them unless equitable estoppel is applied.
In Safeway Stores v. Wilson, supra, it is said:
“There is no definite rule governing estoppel which can be applied to every situation. There are few, if any, relationships, of which the law takes cognizance, which are not effected to some degree by the principles of estoppel. Since the principle of equitable estoppel runs through all transactions it cannot be determined by any fixed or definite rule. Where the question is raised each case must be determined on its own individual facts.” (p. 12.)
Under the pleadings, depositions and letters on file, taken in the light most favorable to the plaintiffs, we hold it was error for the trial court to conclude as a matter of law there was no genuine issue as to any material fact and enter judgment on the pleadings, depositions and written documents.
Plaintiffs further claim the defendant’s letter of November 16, 1972, constituted an acknowledgment under K.S.A. 60-520(o) to pay an existing liability which extended the statute of limitations. We do not agree. An acknowledgment which will remove the bar of the statute of limitations must be distinct, unequivocal, and without qualification, and nothing less than a direct admission of a present existing liability is sufficient. (Dechand Roofing & Supply Co. v. Schumaker, 174 Kan. 82, Syl. ¶ 2, 254 P.2d 326 [1953].)
However, on the question of estoppel the summary judgment is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an action to recover damages for breach of a contract to furnish engineering services in designing a sewage treatment plant and collection facility for the City of Beverly, Kansas. The contract was entered into on September 10, 1970. The defendant-engineers filed an answer denying any breach of the contract but alleging that a controversy did arise between the parties concerning the performance of the contract which controversy was finally disposed of by arbitration and award. They filed a motion for summary judgment. Both parties filed affidavits in addition to their pleadings and exhibits. The exhibits included a purported arbitration award which was dated prior to the date plaintiff’s action was filed. The district court found the arbitration award was binding and granted defendants a summary judgment. The plaintiff city has appealed. A motion to dismiss the appeal on the ground of acquiescence in the judgment was filed in this court. It has been considered and is hereby denied.
This court is asked to re-examine the validity of the arbitration award. The sufficiency of the award depends upon whether the Uniform Arbitration Act, effective July 1, 1973, applies under the facts and circumstances of this case.
The contract for engineering services was entered into September 10, 1970. It contained the following provision for arbitration:
“4. Arbitration: Arbitration of all questions in dispute under this agreement shall be at the choice of either party and the dispute will finally and conclusively be settled by the decision of the arbitrators, one to be appointed by the city, one by .the Consultant, and a third to be chosen by the two appointed. In case these three arbitrators thus chosen fail to agree, two additional arbitrators shall be appointed by the presiding judge of the United States Court of Appeals having jurisdiction over the region which includes the City of Paxico, Kansas. By the decision of these arbitrators, or by the majority of them, both parties to this agreement shall be finally bound.
“Arbitrators shall be men capable by training and experience to understand and pass upon the problems to be considered. No one shall serve as arbitrator who has or has had any financial or pecuniary interest with any of the parties or who is or ever has been employed by any of the parties. No arbitrator shall be an advocate for any of the parties.
“Compensation to each arbitrator shall be the same and shall be paid equally by both parties. All other expenses shall be paid by the party calling for arbitration.”
The controversy between the parties concerning alleged engineering errors apparently surfaced early in June, 1974. On June 28,1974, the city wrote to the defendant-engineers advising them that certain errors and inadequacies in the sewer system had not been corrected. The letter further advised, “we are obliged to invoke the Arbitration Clause of our agreement with your firm, dated September 10, 1970.” In response the defendant-engineers wrote the city on July 3,1974, naming a designated arbitrator. On July 10, 1974, the city wrote back naming a designated arbitrator. Apparently the third arbitrator was not designated by the two arbitrators until shortly before the initial meeting of the arbitrators on February 18, 1975. The arbitrators established a hearing date of February 27. Position statements of the parties were requested, received ana filed, but no actual hearing was held. Over a year elapsed between the dates the arbitrators were designated and the award was signed.
The present action was filed by the city on September 9, 1975. Although the award of the arbitrators bears the date of August 15, 1975, the award was not signed by all arbitrators or delivered to the parties until September 27, 1975.
K.S.A. 5-419 of the Uniform Arbitration Act provides:
“This act applies only to agreements made subsequent to the taking effect of this act. Nothing in this act shall be construed as affecting any provisions relating to arbitration in any policy of insurance or any endorsements thereon which complies with the requirements of K.S.A. 40-284.”
It is readily apparent that the act does not apply to the September 10, 1970, agreement of the parties.
The defendant-engineers argue that the letters exchanged between the parties dated June 28, July 3, and July 10,1974, became an independent contract to arbitrate and that it was entered into under the uniform act. They contend the contract became valid, enforceable and irrevocable by reason of K.S.A. 5-401. We cannot agree.
The construction and effect to be given an arbitration contract, like any other contract, largely depends on the intention of the parties as expressed therein. When the 1970 contract was executed the parties agreed to arbitrate disputes which might arise in the future. When the city first wrote to the defendant-engineers it stated it was obliged to invoke the arbitration clause in the 1970 agreement. The use of the word “obliged” and the reference to the 1970 agreement establishes an intention to proceed under the prior agreement and negates the theory an independent agreement was intended. The arbitration statutes in effect on September 10, 1970 (K.S.A. 5-201, et seq.), apply to the submission and arbitration of existing disputes only. (Thompson v. Phillips Pipe Line Co., 200 Kan. 669, Syl. ¶ 1, 438 P.2d 146 [1968].) So arbitration under K.S.A. 5-201, et seq., was not enforceable. In Thompson it was pointed out that where arbitration statutes are not applicable this court will follow the common law rule that an agreement to submit a matter to arbitration is revocable at will by either party while it is executory. Such an agreement is executory up until the time an award is signed by the arbitrators and served on the parties. It is further held in Thompson the revocation of an agreement to arbitrate can be implied from the act of a party in refusing to appoint an arbitrator.
It can also be implied from filing an action for damages. When the plaintiff city filed the present action for damages on September 9, 1975, the arbitration proceedings which had been pending for over a year were executory and as such the agreement to arbitrate was revocable at will by either party. Revocation of the agreement to arbitrate was inherent in the filing of the present action for damages.
In summary, we hold the Kansas Uniform Arbitration Act, K.S.A. 5-401, et seq., does not apply to an arbitration agreement made prior to July 1, 1973. The arbitration agreement in the present case was executed September 10, 1970. The provisions of K.S.A. 5-201, then existing, did not apply to agreements to arbitrate disputes which might arise in the future. Therefore, statutory arbitration was not available to the parties. Where, as in the present case, statutory arbitration is not available, arbitration agreements are governed by the common law rule which permits either party to revoke an agreement to arbitrate at any time prior to the time an award is signed by the appraisers and served on the party. The arbitration award in the present case was not valid and binding. The trial court improperly entered summary judgment for the defendants.
The judgment is reversed and the case is remanded to the district court with instructions to proceed with plaintiff’s action to recover damages for breach of the contract to furnish engineering services. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order granting summary judgment in favor of defendant Billy G. Woodruff.
The action arose from a traffic accident occurring on August 26, 1974. It is alleged that defendant parked his tractor-trailer rig on the shoulder of U.S. Highway 73, approximately six miles south of Atchison, Kansas, and plaintiff Gary Lohman ran his truck into the back of the vehicle. Subsequently, plaintiff’s insurance company, State Farm Mutual Automobile Insurance Company, investigated the accident and obtained a release from defendant for $1,800. The release, executed on November 13, 1974, stated:
“RELEASE
“For the Sole Consideration of One Thousand Eight Hundred and no/100 ($1,800.00) Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges Gary Lohman his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 26 day of August, 1974 at or near Atchison, Leavenworth Co., Kansas.
“Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purp'ose of precluding forever any further or additional claims arising out of the aforesaid accident.
“Undersigned hereby accepts draft or drafts as final payment of the consideration set forth above.
“In Witness Whereof, I have hereunto set my hand(s) and seal(s) this 13 day of Nov., 1974.
s/“Billy G. Woodruff”
The release was obtained by State Farm without the consent or knowledge of plaintiff. Plaintiff filed a lawsuit for his personal injuries on October 29, 1974. Defendant answered, denying his own negligence, alleging negligence, on the part of plaintiff, and counterclaiming for damages in the amount of $1,769.17. When State Farm learned of the counterclaim it hired plaintiff’s attorney to defend on the counterclaim, instructing him to plead the release as a defense. Plaintiff’s reply filed on behalf of State Farm alleged the counterclaim was barred by the release.
At pretrial defendant’s counterclaim was dismissed because of the release. Thereafter, plaintiff’s petition was also dismissed, the trial court ruling the release was a compromise on all matters set forth in plaintiff’s petition.
The only issue on appeal is whether the trial court was correct in ruling that the release of November 13, 1974, was a compromise of all claims arising out of the August 26, 1974, accident, thus barring plaintiff’s cause of action after it was pled as a defense to defendant’s counterclaim. For the reasons set forth herein we hold the trial court erred in dismissing plaintiff’s petition.
Plaintiff claims the release should not bar his cause of action because the release was not an admission of liability on his part and, even if that were the case, it would not be barred because of the comparative negligence statute (K.S.A. 60-258a). He further argues that an insurer has an obligation to pay up to the policy limits on a claim or judgment. The insurer cannot escape this liability by entering into a release agreement with a claimant without knowledge of the insured and by that act deny plaintiff the right to sue or leave him potentially liable on a counterclaim. Plaintiff’s primary argument focuses on the fact the release was unilateral and contained no promise on his part to forego a possible lawsuit against defendant, and that the later interjection of the release into the lawsuit was done by his attorney at the direction of the insurer after the insurer hired the same attorney to defend the counterclaim. This, he argues, cannot amount to an act of ratification on his part.
Defendant agrees that ordinarily a settlement by the insurer will not bar an action by the insured against the payment recipient, but argues this case is an exception to the general rule. He argues that by pleading the release plaintiff specifically ratified the settlement and must now be bound by the results. Defendant argues the release was a full compromise and settlement of all claims by both parties to the lawsuit and it bars any subsequent court action. If this is not the case, he argues, the release should be set aside, each party should be allowed to fully litigate its claim against the other, and the $1,800 already paid to defendant should be used as a setoff against any judgment defendant may take against plaintiff.
In Graves Truck Line, Inc., v. Home Oil Co., Inc., 181 Kan. 507, 312 P.2d 1079 (1957), we held that in an action to recover property damage to a truck owned by Graves, a settlement made by its insurer with the deceased driver of defendant’s truck did not bar the lawsuit. The court stated:
“Under an automobile liability insurance policy which authorizes and empowers the insurer to ‘make such negotiations and settlement of any claim or suit as it deems expedient,’ a settlement by the insurer of a claim by a third person against the insured, made without the insured’s consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.” (Syl. 1.)
In Faught v. Washam, 329 S.W.2d 588, 594-95 (Mo. 1959), the Missouri Supreme Court recognized that a standard automobile liability policy gives the insurer the right to investigate, negotiate and settle any and all claims or suits against the insured; however, such a policy does not give the insurer the right to negotiate or settle any claims or suits an insured may have against a third party absent the insured’s knowledge or consent. The court also noted that an insured is not barred by the settlement of a claim against him, but in some cases he may be estopped from subsequent action where he ratifies or adopts a settlement by his insurer. As to the question of whether the pleading of a release in reply to a defendant’s counterclaim constituted a ratification of the release and a complete bar to plaintiff’s action, the Faught court stated:
“Ordinarily, a release is ratified or adopted by one pleading it, but the instant case presents no ordinary situation. True, the release taken by plaintiff’s insurer was pleaded in a reply filed in plaintiff’s name and signed by the attorneys who had represented plaintiff from the time of institution of this suit. Compare Radosevich v. Pegues, 133 Colo. 148, 292 P.2d 741. But, we are mindful that, although plaintiff’s insurer was obligated by its policy to defend against the counterclaim and although plaintiff had no live financial interest in such defense because the damages sought in'the counterclaim were less than the limit of the insurer’s liability under its policy, the insurer could not, under our practice, have been joined as a party of record. With defendant’s general release in its file, plaintiff’s insurer quite understandably deemed it desirable to interpose that release in bar of defendant’s alleged cause of action and, in simple justice, there was no reason why the insurer should not have done so. In these circumstances, the testimony of counsel that he ‘filed that reply on behalf of (plaintiff’s insurer) as their attorney and pursuant to the provisions of (plaintiff’s) insurance policy giving (his insurer) the exclusive right to control the defense of that counterclaim’ becomes as credible to us as it apparently was to the trial judge. No doubt, it would have been preferable for this to have been reflected of record in the reply, but the failure to do so does not change or obscure the obvious truth that the release was pleaded for the benefit of plaintiff’s insurer, not plaintiff personally. To hold otherwise would be to stick in the shell and to miss the kernel within. Furthermore, ‘in its genuine sense, ratification depends upon intention’ [Fleming v. Anderson, Mo., 232 S.W. 718, 723 — see also Restatement of Agency 2d, § 95, Comment a, p. 246]; and certainly we cannot say that the peculiar facts of this case compel the conclusion that plaintiff ever intended to ratify or adopt the release taken by his insurer. . . .” (Footnotes omitted.) (p. 595.)
See also, Berlant v. McAllister, 25 Utah 2d 237, 480 P.2d 126 (1971).
The facts of the instant case are strikingly similar to those in Faught. Here the plaintiff’s insurer had a duty to defend plaintiff against the counterclaim and in fact did so by pleading the release. The record indicates plaintiff had no knowledge the release existed. Plaintiff’s attorney pled the release after he was hired by State Farm to defend the counterclaim and it was pled for the benefit of State Farm, not plaintiff personally. A purchaser of liability insurance is entitled to receive the fruits of the contract; i.e., defense from lawsuits and coverage up to the policy limits. These fruits should not be jeopardized when his insurance carrier obtains a release from the claimant without his knowledge or consent.
We follow the rule stated in Graves Truck Line, Inc., v. Home Oil Co., Inc., supra, and further hold that a plaintiff-insured does not ratify a unilateral release executed by a defendant when the release is asserted as a defense to the defendant’s counterclaim at the direction of plaintiff’s liability insurance carrier for the benefit of the insurer.
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The opinion of the court was delivered by
Holmes, J.:
This opinion supplements our original announcement of the decision made June 15, 1978.
This is an appeal by the Board of Education of Unified School District No. 501 of Shawnee County, Kansas (U.S.D. #501), from an order of the district court finding that an impasse existed pursuant to the provisions of K.S.A. 1977 Supp. 72-5413, et seq., between appellant and National Education Association-Topeka, Inc. (NEA-T). NEA-T is the recognized professional employees’ organization representing the school teachers within the district.
After several months of negotiating the proposed terms of a new teachers’ contract for the school year 1978-1979, NEA-T filed a petition in the district court seeking the declaration of an impasse under K.S.A. 1977 Supp. 72-5426. After a hearing, as required by the statute, the district court found an impasse existed in the negotiations between U.S.D. #501 and NEA-T and ordered that impasse resolution procedures commence in accordance with K.S.A. 1977 Supp. 72-5427 and 72-5428. U.S.D. #501 appealed the determination of the district court alleging that it was a final decision under K.S.A. 60-2102(o)(4). The proceeding was transferred from the Court of Appeals to this court where NEA-T filed a motion to dismiss, urging that the determination of the district court was not a final order and the appellate courts were without jurisdiction. As noted in our announcement of this decision filed June 15, 1978, we found that an order declaring an impasse under The Professional Negotiations Act, pursuant to K.S.A. 1977 Supp. 72-5426, is not an order subject to appeal under the statutes of the State of Kansas.
The Professional Negotiations Act, K.S.A. 72-5413, et seq. was amended and supplemented by the 1976 legislature to include a process for the declaration of an impasse and its early resolution. The amended act provides that if, during the course of professional negotiation, either the board of education or the professional employees’ organization representing the teachers, or both, believe that an impasse exists, either or both may file a petition in the district court asking for a declaration of impasse and the commencement of the impasse resolution procedures of mediation and fact-finding. K.S.A. 1977 Supp. 72-5426-72-5428. After an impasse is declared by the trial court, the secretary of human resources is notified and shall then appoint forthwith a mediator to assist in resolving the impasse. K.S.A. 1977 Supp. 72-5427(a). If at any time, after seven days following the mediator’s appointment, the mediator determines the impasse has not been broken, the mediator shall certify such fact to the secretary. If either party determines, at any time after such seven-day period, that mediation has failed to resolve the impasse and, after requesting the mediator to do so, the mediator fails to make such certification, such party may file a written request with the secretary to appoint a fact-finding board to assist in resolving the impasse. K.S.A. 1977 Supp. 72-5427(c). When such certification is made, the secretary shall then appoint forthwith a fact-finding board which shall investigate and submit a report of its findings within ten days (however, an extension of up to seven days may be granted with the consent of the parties). K.S.A. 1977 Supp. 72-5428.
Although the outcome of the impasse resolution procedure is not binding on either the board or the teachers, either party may publicize the report of the fact-finding board. K.S.A. 1977 Supp. 72-5428(d) and (e). If agreement is not reached, the board of education retains the final right to act in what it deems the best interest of both the teachers and the public. K.S.A. 1977 Supp. 72-5428(f).
The board of education argues that it should not be forced to proceed through the impasse resolution procedures prior to test ing the trial court’s declaration of impasse at an appellate level. However, all agree there is no statutory provision in The Professional Negotiations Act covering appeals from the judgment and orders of the district court concerning a declaration of impasse. K.S.A. 1977 Supp. 72-5413, et seq. Thus, if appeal is proper it may only be invoked through the general appeal statute, K.S.A. 60-2102.
The Kansas Constitution, Art. 3, § 3, provides in part:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law. . . .”
K.S.A. 1977 Supp. 60-2101(b) provides appellate jurisdiction “to correct, modify, vacate, or reverse any act, order, or judgment of the district court or court of appeals in order to assure that any such act, order or judgment is just, legal, and free of abuse.”
“The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken.” Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978).
Finally, K.S.A. 60-2102 is the statute which generally establishes and governs the right to invoke appellate jurisdiction. 6 Vernon’s Kansas Statutes Annotated, 2101.3, p. 9 (1967).
In this case U.S.D. #501 urges that the jurisdiction of this court is invoked by appeal as a matter of right under K.S.A. 60-2102(a)(4) from a “final decision in any action.” Cf. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 550, 539 P.2d 1 (1975). The question directly before this court is whether a declaration of impasse pursuant to K.S.A. 1977 Supp. 72-5426 is a “final decision in any action” invoking the broad grant of appellate jurisdiction set out in K.S.A. 1977 Supp. 60-2101(b).
Soon after K.S.A. 60-2102 was passed by the legislature in implementing the Kansas Code of Civil Procedure, this court noted that decisions interpreting the old statute were obsolete. In so holding, the court said:
“No attempt was made to define the word ‘fina! and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. . . .[W]e are forced to conclude that an appeal does not lie from a pretrial ruling unless it has the effect of a final decision which disposes of all the issues in the case.” Connell v. State Highway Commission, 192 Kan. 371, 374-375, 388 P.2d 637 (1964). See also Henderson v. Hassur, 1 Kan. App. 2d 103, 106, 562 P.2d 108 (1977).
Connell was cited with approval in Fredricks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252 (1976) with this court stating “. . .[a] similar policy against piecemeal appeals which tend to extend and prolong litigation exists in Kansas.” In addition to this general policy, the legislature has evidenced its intent that the specific procedures for impasse mediation under The Professional Negotiations Act move with smoothness and rapidity toward agreement by the parties involved.
The Act does not provide for piecemeal appeals from every adverse order of the trial court. In fact, the rapid time sequence established by the legislature for implementing and carrying out the impasse procedure indicates an opposite intent. While it is undoubtedly true that the parties are within their legal rights to attempt to appeal such interim rulings, the advisability and practicality of such is open to question. Since March 20th of this year, there have been four cases appealed from the Shawnee County District Court and one original action filed in this court growing out of the negotiations, or lack of same, in the dispute between U.S.D. #501 and NEA-T. The delays, expense and damage to the general public by such a multiplicity of actions is difficult to justify. It may be speculated that if the parties had given the procedure adopted by the representatives of all the people a fair opportunity to function, rather than devoting their time and efforts to multiple litigation, agreement might have been reached some time ago through the special procedures made available by the legislature.
The finding by the district court that an impasse existed between the parties does not dispose of any issues as required by Connell. The finding of impasse merely triggers the procedure by which future negotiations are to be conducted, hopefully toward a rapid and successful conclusion. Thus, we hold that an order declaring an impasse pursuant to K.S.A. 1977 Supp. 72-5426 is not a final decision by which the appellate jurisdiction of the supreme court may be invoked as a matter of right.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Fromme, J.:
The defendant Edward J. McClain was convicted by a jury of two counts of aggravated robbery (K.S.A. 21-3427). On appeal he raises two points of error.
He contends the state failed to bring him to trial within ninety days as required by K.S.A. 22-3402. Defendant’s original trial began on April 19, 1977. On failure of the jury to agree on a verdict a mistrial was declared on April 21, 1977. Defendant remained in jail in default of bond. Ninety-six days later the defendant was brought to trial a second time and the trial resulted in a conviction from which he appeals.
K.S.A. 1977 Supp. 22-3402 in pertinent part provides:
“(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).
“(4) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.” (Emphasis supplied.)
Under the statute above quoted in the event a mistrial is declared the computation of time chargeable to the state and the time limitations imposed to afford the defendant a speedy trial under K.S.A. 1977 Supp. 22-3402 commence to run from the date the mistrial is declared.
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].)
Defendant’s attorney at the original trial was granted permission to withdraw as counsel before the second trial began. Two more attorneys were appointed at different times and each withdrew from the case because of disagreements with the defendant before present counsel was appointed. After the first trial defendant’s newly appointed counsel applied for permission and was authorized to obtain a transcript of the proceedings at the first trial. Twenty-three days elapsed before the transcript could be prepared and delivered. This delay together with the delays caused by defendant in requesting changes of counsel cannot be charged to the state. Less than 73 days can be charged to the state. Therefore the point is without merit.
Defendant’s final point concerns an allegation that the jury considered evidence not admitted during the trial. The evidence referred to was a letter written by defendant to a federal district judge complaining that one of his previous attorneys failed to represent him in a satisfactory manner. The letter had been used by defendant in support of a motion for acquittal because of the alleged denial of a speedy trial. The motion was denied by the trial court but the letter inadvertently was placed with other exhibits introduced at the trial. When the trial exhibits were requested by and delivered to the jury this letter accompanied the trial exhibits.
The letter was not admitted in evidence at the trial. It was not relevant to the guilt or innocence of the defendant. The dissatisfaction expressed in the letter did not relate to the attorney who represented defendant at trial. We conclude the prejudice, if any, to the defendant was harmless beyond a reasonable doubt. See K.S.A. 60-261 and K.S.A. 60-2105.
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The opinion of the court was delivered by
Owsley, J.:
This is an interlocutory appeal from an order granting summary judgment in favor of plaintiff Orlan L. Eurich, Jr., on the issue of liability in an action seeking recovery for personal injury.
This is the second of two cases arising from a two-car crash on February 24, 1975, in Great Bend, Kansas. One car was driven by Bonnie Faris and the other car contained Eurich and Wesley D. Alkire, the defendant herein.
The first lawsuit was instituted by Faris against Eurich and Alkire. In her petition she alleged she did not know who was driving but claimed both defendants were intoxicated and the driver was negligent. Each defendant filed a separate answer alleging the other to be the driver and himself to be a sleeping passenger. At pretrial plaintiff Faris amended her petition alleging that if the owner of the car, Alkire, was not driving he was guilty of negligent entrustment for allowing Eurich to drive when he knew Eurich was intoxicated. At trial the jury answered special verdicts finding Eurich was the driver at the time of the accident. Damages to plaintiff were $50,000, and fault was 40% attributable to Eurich and 60% to Alkire for negligent entrustment.
This case was filed before the trial of the first lawsuit. Following the decision in the first case, Alkire moved for summary judgment in the instant case. On July 30, 1976, the district court granted judgment on liability, holding that the jury’s findings in the first case controlled. Because of our decision in Williams v. Evans, 220 Kan. 394, 552 P.2d 876 (1976), decided only one week prior to the trial court’s decision herein, Alkire moved for reconsideration. In Williams we held that a prior judgment against codefendants does not activate the doctrine of collateral estoppel as to liability between the defendants, pointing out that the question of liability between the defendants was not put in issue in the prior case. The trial court held Williams was not applicable.
Williams was decided prior to the adoption of our comparative negligence act (K.S.A. 60-258a). The parties herein raise the issue of whether the collateral estoppel rule pronounced in Williams is applicable after the adoption of comparative negligence. While it is logical that we consider that issue, we deem it more important to the bench and bar of this state that we decide this action upon a basic construction of the comparative negligence act.
We first refer to Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), for its review of basic rules of statutory construction and the determination of two important issues in the history of our comparative negligence statute. We there held that the act abolishes joint and several liability and that the individual liability for damages should be based on the proportionate fault of all parties to the occurence.
As pointed out in Brown, the Kansas comparative negligence act is a multipurpose act which goes far beyond a basic comparison of the contributing negligence of each of the parties to the cause of an accident or injury. The act comprehensively provides machinery for drawing all possible parties into a lawsuit to fully and finally litigate all issues and liability arising out of a single collision or occurrence, and apportion the amount of total damages among those parties against whom negligence is attributable in proportion to their degree of fault.
Looking to the historical background of the enactment, the circumstances attending its passage, and the purpose to be accomplished by the act, as is required when construing any legis lative act (Brown v. Keill, supra), we believe it was the intent of the legislature to fully and finally litigate all causes of action and claims for damage arising out of any act of negligence subject to K.S.A. 60-258a. The provision for determining the percentage of causal negligence against each person involved in a negligence action contemplates that the rights and liabilities of each person should be determined in one action. Because all issues of liability are determined in one action there can be no reasonable argument that the issues should be relitigated. Likewise, there is no reasonable argument for the proposition that a claim for damage arising out of one collision or occurrence should not be presented at the time negligence is originally determined. We believe this construction satisfies the rule that it is the duty of the courts to ascertain the intent of the legislature from the subject matter of the statute and, so far as practicable, reconcile various conflicting provisions of the act in order to make them consistent, harmonious, and sensible. (Jordan v. Doonan Truck & Equipment, Inc., 220 Kan. 431, 434, 552 P.2d 881 [1976].)
We conclude that all persons who are named as parties and who are properly served with summonses are bound by the percentage determination of causal negligence. Because the statute contemplates that each party has a right to cross-claim against any or all other parties to a lawsuit, we hold that any party who fails to assert a claim against any other party in a comparative negligence action is forever barred. A corollary rule naturally follows that a person who has not been made a party to a comparative negligence case should not be bound by a judgment therein, even though his causal negligence may have been determined.
Applying the foregoing to the facts of this case, we find that Eurich was a named party served with a summons in the first case, and because he failed to make a claim against Alkire or plaintiff Faris, such claim is now barred.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant, John R. Warden, was convicted of felony murder (K.S.A. 21-3401), aggravated burglary (K.S.A. 21-3716), and aggravated robbery (K.S.A. 21-3427). The evidence presented at the trial was essentially undisputed. On February 21, 1977, Mrs. Nina Berardi was fatally wounded by one shot from a .22-caliber firearm at her home in Wichita. Two days later police officers arrested the defendant. Following his arrest, there was found in the possession of the defendant a .22-caliber pistol and also a flashlight which was identified as similar to one previously observed in the home of the deceased. At the time of the trial, there was admitted into evidence a full confession by the defendant which established that the defendant and a young companion had entered Mrs. Berardi’s home armed with a .22-caliber pistol to obtain money from her. During the course of the robbery, the pistol fired and hit Mrs. Berardi in the chest, causing a fatal injury. The evidence indicated the shooting may have been accidental. Following his conviction, the defendant appealed to this court claiming trial errors.
In his first two points on the appeal, the defendant contends that the trial court erred in refusing to suppress the statement given by the defendant to the police officers for the reason that there was insufficient evidence presented at the suppression hearings to support the trial court’s findings that the defendant knowingly, intelligently, and willingly waived his constitutional privilege against self-incrimination. Prior to trial, a hearing on defendant’s motion to suppress was heard by Judge Elliot Fry. At this hearing, the court received the testimony of the interrogating detective, Gary Babb, and also that of the defendant, Warden. At the conclusion of the hearing, Judge Fry overruled the motion to suppress. At the trial, the defendant renewed his motion to suppress the confession. A hearing was held outside the presence of the jury before the trial judge, Robert T. Stephan. At this hearing, the state again presented the testimony of detective Babb and again defendant Warden took the stand. Both testified as to the circumstances surrounding the taking of defendant’s statement. At the conclusion of the hearing, Judge Stephan overruled the motion to suppress and defendant’s confession was admitted into evidence before the jury.
We have carefully considered the testimony of detective Babb and also that of the defendant and have concluded that there is substantial competent evidence to sustain the findings of both Judge Fry and Judge Stephan that the defendant’s statement was admissible. Both detective Babb and the defendant testified that the officer fully advised the defendant of his Miranda rights by reading them from a card. Both of the witnesses testified that, following the reading of the Miranda warnings, the defendant stated to the detective that he understood them. Although the defendant concedes that his Miranda rights were explained to him, he contends that he did not voluntarily and knowingly waive his right to remain silent and was, in fact, questioned after the defendant informed detective Babb that he did not want to make a statement to the officer.
It is true that the testimony of detective Babb at the suppression hearings and his testimony at the trial were inconsistent. At one point detective Babb testified that, when he asked the defendant if he wanted to waive his rights, the defendant answered, “Why have you arrested me?” At another point in the hearing, detective Babb testified that he asked the defendant if he wanted to talk and, at first, the defendant responded that he did not want to talk. At another point the detective testified that when he asked the defendant if he was willing to talk, the defendant made no comment. Finally, detective Babb testified that when he asked defendant if he wished to waive his rights and talk, defendant stated that he did. The defendant at both suppression hearings testified that his Miranda rights were explained to him. He did not at any time testify that he informed the officer that he did not want to make a statement nor did he testify that his statement was in any way coerced. The defendant emphasizes that, at the time he was interrogated by the officer, he was eighteen years old but had not completed the ninth grade, and that on the personal history sheet which defendant completed after his arrest, he misspelled the words “Emporia” and “Wichita,” and responded with a nonsensical answer to an inquiry regarding his religion. There was also evidence that an intelligence test had indicated the defendant’s IQ to be 79.
We have carefully considered the evidentiary record of both suppression hearings and have concluded that there was substantial competent evidence to support the findings of the trial court that the defendant’s statement was obtained after his Miranda rights were fully explained to him and that the defendant knowingly, intelligently, and willingly waived his privilege against self-incrimination. In reaching this conclusion, we note that it was undisputed that the defendant was advised of his rights and that he stated to the officer that he understood them. Defendant, himself, so testified. The interrogation at the courthouse did not cover an extended period of time. Defendant made incriminating statements only fifteen minutes after the interrogation commenced and only after detective Babb had reviewed in detail the facts known as to how the crime was committed and the defendant’s involvement therein. This information had previously been obtained from statements made by the juvenile who participated with the defendant in the crime. Both Judge Fry and Judge Stephan had a full opportunity to observe the defendant’s demeanor in presenting his testimony. The mental deficiency of the defendant was simply one factor to be considered by the trial court. State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976). This is not a case where the defendant was badgered until he decided to talk. As noted above, the period of interrogation was of short duration. The cases cited by the defense counsel in his brief involve more extreme conditions of incarceration, lengthy interrogation, and obvious coercion. Considering the totality of the circumstances as contai. .ed in the entire record, we have concluded that there is substantial evidence to support the trial court’s findings that the statement of the defendant Warden was freely, voluntarily, and intelligently given and was properly admitted into evidence at the trial.
The second point raised on the appeal is that the trial court erred in its refusal to instruct the jury on the lesser offenses of voluntary manslaughter and involuntary manslaughter. We note that, at the conclusion of the evidence, the prosecutor urged the court not to instruct on any of the lesser offenses of homicide since the evidence was undisputed that the homicide occurred during the course of the commission of an aggravated robbery. Over the state’s objection, the trial court instructed on second-degree murder. We agree with the state that an instruction on second-degree murder should not have been given. Under our decisions, a trial court is not required to give instructions on lesser included offenses of homicide when the evidence is undisputed that the crime was committed during the commission of a felony. State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978). In his brief, counsel for the defendant concedes that there was no evidence presented in the case to contest the fact that the killing occurred during the commission of a felony. The giving of the instruction on murder in the second degree, although erroneous, was actually favorable to the defendant and he has no cause to complain in that regard. The trial court properly refused an instruction on the lesser included offense of voluntary manslaughter and involuntary manslaughter because there was no evidence to support those theories.
The defendant’s last point on the appeal is that he was deprived of due process of law because he was not formally arraigned or presented a copy of the amended information. Here the defendant was arraigned with his counsel present on the original information. He was advised by the court that the information was to be amended to exclude the count of premeditated murder so that the defendant would be tried only on the theory of felony murder. Neither the defendant nor counsel requested a new arraignment on the amended information and the case proceeded to trial on the amended information without objection on the part of the defendant. The cases which are cited by the defendant involve situations where the defendant was not represented by counsel at his arraignment. In this case the defendant had counsel from the very beginning of the prosecution. This case is governed by our decision in State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976), which holds that a* defendant effectively waives formal arraignment when he goes to trial without objection and submits the question of his guilt to the jury.
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The opinion of the court was delivered by
HOLMES, J.;
This is an appeal from an order of the District Court of Linn County in which the trial court reversed orders of the State Corporation Commission entered in an electric service rates proceeding for the reason that the orders of the Commission were found to be unlawful and unreasonable. The Commission appeals although it appears that neither party was satisfied with the judgment of the trial court.
Various other public utilities were granted leave to file an amici curiae brief.
The facts are not in dispute and no objections are raised to the procedural aspects of the hearing before the Commission and the later proceedings in the district court.
On May 27, 1975, the appellee, Kansas City Power & Light Company (KCPL), a public utility operating within the state of Kansas and subject to the jurisdiction of the State Corporation Commission of the State of Kansas, filed an application for consent and approval to put into effect certain changes in its electric service rates, rules and regulations designed to increase the rates charged Kansas customers for electric service. Included in the' application was a request by KCPL to include in its year-end rate base $15,066,500 associated with the construction of LaCygne Unit No. 2 and $2,168,400 associated with minor construction projects, for a total amount of construction work in progress (CWIP) of $17,234,900. An additional $1,111,085 of CWIP was requested to be included subsequent to the filing of the application. In its order of July 23, 1976, authorizing certain increases in electric service rates, the Commission denied KCPL’s request to include CWIP in its rate base. The Commission determined that it was precluded, as a matter of law, from including CWIP in KCPL’s year-end rate base.
A request for a rehearing by KCPL was denied by the Commission and following this denial, KCPL applied to the District Court of Linn County for judicial review of the Commission’s finding that it was precluded as a matter of law from considering CWIP. Briefs were filed by interested parties and the matter was tried to the court. The District Court held that the orders of the State Corporation Commission were unlawful and unreasonable in excluding CWIP, as a matter of law, from KCPL’s rate base, and further held that CWIP must be included in a utility’s rate base as part of the Commission’s statutory duty.
At the time of the proceedings before the Commission and the trial court and at the time this matter was argued on appeal K.S.A. 66-128 provided:
“Said commission shall have the power and it shall be its duty to ascertain the reasonable value of all property of any common carrier or public utility governed by the provisions of this act used or required to be used in its services to the public within the state of Kansas, whenever it deems the ascertainment of such value necessary in order to enable the commission to fix fair and reasonable rates, joint rates, tolls and charges, and in making such valuations they may avail themselves of any reports, records or other things available to them in the office of any national, state or municipal officer or board.”
The Commission asks this court to consider two alleged points of error:
1. The District Court of Linn County, Kansas, committed error in finding that the orders entered by the State Corporation Commission precluding CWIP from appellee’s year-end rate base as a matter of law was an unlawful and unreasonable interpretation of K.S.A. 66-128.
2. The District Court of Linn County, Kansas, committed error in going beyond the statutory guidelines of judicial review and in substituting its judgment for that of the State Corporation Commission in determining that K.S.A. 66-128 not only expressly authorizes the inclusion of CWIP in a utility’s rate base but requires such inclusion as a part of the Commission’s statutory duty.
All parties seem to agree that the trial court went too far in finding that K.S.A. 66-128, as then constituted, required the Commission to include CWIP in the rate base. (K.S.A. 66-118d.)
Without going into detail or extensive explanation, for reasons which will become obvious, we find that the trial court was in error in determining that the Commission was required by K.S.A. 66-128 to include CWIP in the KCPL rate base. We also find the Commission was in error in finding that it was precluded under the statute, as a matter of law, from including CWIP. It is the opinion of the court that under the statute, as then constituted, the inclusion or exclusion of CWIP in the rate base was a discretionary function of the Commission to be based upon a factual determination, from the evidence submitted, whether the requested CWIP was “property . . . used or required to be used in its services to the public within the state of Kansas, . . .” (K.S.A. 66-128.) See Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, 544 P.2d 1396 (1976).
During the pendency of this appeal the matter of the interpretation, meaning and intent of the statute came to the attention of the 1978 Legislature. House Bill 2070 introduced in the 1978 session of the legislature sought to clarify the legislative intent and language of 66-128. The statute was amended, old K.S.A. 66-128 was repealed, and on April 6, 1978, House Bill 2070 became law.
House Bill 2070 provides:
“Section 1. K.S.A. 66-128 is hereby amended to read as follows: 66-128. Said commission shall have the power and it shall be its duty to ascertain the reasonable value of all property of any common carrier or public utility governed by the provisions of this act used or required to be used in its services to the public within the state of Kansas, whenever it deems the ascertainment of such value necessary in order to enable the commission to fix fair and reasonable rates, joint rates, tolls and charges, and in making such valuations they may avail themselves of any reports, records or other things available to them in the office of any national, state or municipal officer or board. For the purposes of this act, property of any public utility which has not been completed and dedicated to commercial service shall not be deemed to be used or required to be used in said public utility's service to the public, except that, any property of a public utility, the construction of which will be completed in one (1) year or less, may be deemed to be completed and dedicated to commercial service. ” (emphasis added.)
House Bill 2070 attempts to clarify the legislative intent of 66-128 in that it specifically excludes all CWIP from consideration by the Commission except any CWIP which will be completed in one year of less may be included by the Commission in its determination of the rate base. The inclusion of CWIP continues to be a discretionary matter for the Commission only to the extent that it will be completed in one year or less.
The judgment of the district court that the Commission was required to include CWIP in the KCPL rate base is reversed; the order of the Commission finding it was precluded from including CWIP is found to be erroneous and the proceedings are remanded to the trial court with directions to refer the matter back to the Commission for further consideration in light of the legislative intent and purpose as expressed in House Bill 2070.
It Is So Ordered. | [
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The opinion of the court was delivered by
OWSLEY, J.:
This is an appeal from a jury verdict denying recovery of damages to a tractor and tank-trailer which were destroyed by fire while gasoline was being transferred from the tank-trailer to a bulk storage tank.
Plaintiff-appellant, Plains Transport of Kansas, Inc. (Plains), was the owner-lessor of the tractor and tank-trailer. Groendyke Transport Company, Inc. (Groendyke), was the lessee-operator at the time of the accident. Walter L. King, d/b/a King Brothers Oil Company (King Oil), was the owner of the bulk storage tank. Gary L. King is Walter L. King’s son and an employee of King Oil. King Oil and Gary King are the defendants-appellees herein.
On May 23, 1973, James C. Ward, an employee of Groendyke, arrived at defendants’ service station for the purpose of delivering an 8,400-gallon load of gasoline. This was Ward’s first delivery to King Oil, although Groendyke had been delivering gasoline to the station for several years. When Ward arrived Walter King instructed him to fill the underground tanks at the front of the station. He was then instructed to unload the balance, approximately 4,200 gallons, into a large overhead bulk storage tank located at the rear of the station.
According to Ward, Gary King and Walter King told him the overhead tank was divided into two equal compartments with a capacity of 4,500 gallons each. They further told him the gasoline in the tank-trailer should be pumped into the west compartment, which was completely empty. The tank-trailer was divided into four compartments of unequal capacity, totalling 8,400 gallons. After filling the underground tank, Ward calculated he had 3,600 gallons remaining in the number two compartment, which was not enough to fill the west compartment of the overhead tank.
Ward further stated that Walter King gave him the instructions for filling the overhead tank while Gary King unlocked its valves and adjusted them so the west compartment could be filled. Ward then connected the number two compartment to the overhead tank, turned one of its valves, and proceeded to unload the gasoline. After he started the unloading, he checked for leaks and saw none. Approximately twenty minutes later he climbed on top of the tank-trailer and observed that approximately one hundred gallons of gasoline remained in the compartment. As he started to climb down to the ground he heard the engine speed up and saw sputtering and droplets come from the vent in the overhead tank. When he reached the ground he closed the valve to the number two compartment and pulled the emergency valve to close all the other compartments. Ward then climbed into the tractor cab to shut off the engine. A flash occurred immediately after he shut off the engine, and as he jumped out of the cab it was engulfed in flames.
The fire burned intensely for more than two hours. During that period the fire burned around the overhead tank and under the tractor and tank-trailer. At some point the fire burned through the hose connecting the tank and the tank-trailer and gasoline flowed from the overhead tank and burned, as it had no internal safety check valve. Heat from the fire caused the legs on the overhead tank to buckle and the tank fell, rupturing and causing gasoline to escape from the tank. By the time the fire was extinguished, five hours after it started, the tractor and tank-trailer were completely destroyed.
Plaintiff sued King Oil on the theory that the Kings told Ward the large overhead tank was completely empty before he began filling it when in fact it contained gasoline; that the overhead tank overflowed and gas ran onto the ground where it was ignited; that the legs on the overhead tank were not designed in conformity with the state fire marshal’s regulations to withstand fire for two hours and the legs buckled under the heat, allowing the tank to fall; that when the tank fell it broke the outside pipes loose and gas flowed from the tank because it did not have an internal check valve as required by the state fire marshal’s regulations; and that because of all these facts plaintiff’s tractor and tank-trailer were destroyed.
Plaintiff produced testimony from numerous sources to support its theory. Jewell Billings, a neighbor, was deposed prior to trial and her deposition was admitted in evidence. Her testimony indicated that she lived in a house located between seventy-five and one hundred feet east of the overhead tank. On the day of the fire she observed Ward unloading his tank-trailer. She looked out her window when she heard a tractor motor speed up and observed a fountain of gasoline shooting up nearly two feet from the top of the vent. The gas was running down the side of the overhead tank onto the ground and flowing toward the tractor and tank-trailer. At the same time she observed the driver run to the front of the tractor cab and stop the engine. This is when the explosion occurred. She watched the fire trucks arrive and noticed that the large overhead tank fell about thirty to forty-five minutes after the fire started. When this happened the unloading pipe broke and fuel ran from the tank. Before this happened she had noticed that the tractor and tank-trailer were on fire and some of the compartments on the trailer had already melted.
Plaintiff used Kenneth Razak, a consulting engineer, as an expert to reconstruct the cause of the fire. He went to the scene of the fire six days after it occurred, made detailed observations, took photographs and preserved evidence. Based on his studies he concluded each compartment of the overhead tank held 4,150 gallons of liquid, and each compartment was sealed from the other. The position of the valves indicated the east compartment to be closed and the west compartment to be open. Considering these facts, along with the statements of Ward and Mrs. Billings, he concluded that the west compartment of the tank must have had gasoline in it when Ward started unloading gasoline from the tank-trailer; that it would not hold all the gasoline and therefore overflowed; that the overflowing gas ran onto the ground and under the tractor and tank-trailer; and that a spark from some source ignited the vapors, causing the fire. He also stated it was impossible to determine whether the gas could have leaked from another source such as the unloading hoses because they were destroyed by the fire.
Defendants produced evidence countering plaintiff’s theory. Walter King admitted that he and his son had given Ward instructions on how to fill the overhead tank, but denied ever stating the capacity of the tank. He also denied telling Ward to fill only the west compartment of the tank. Gary King corroborated his father’s statements.
Norman Byers was defendants’ key witness. His testimony was contrary to the conclusions drawn by Razak. Byers heard testimony of the witnesses, read depositions given by Ward and Razak, read Razak’s report, examined photographs taken of the scene of the fire, and visited the scene. From these sources Byers concluded the overhead tank had not overflowed, but that the phenomenon (sputtering) observed by Ward was venting which occurred when the tank was approximately 390 gallons short of being full. Based on the information he possessed he theorized the gasoline which started the fire came from some other source, but he could not pinpoint the location because any evidence of the location was destroyed in the fire.
The jury returned a defendants’ verdict.
The three issues involved in this appeal are the use of expert witnesses, the jury instructions, and whether plaintiff was entitled to a directed verdict.
Expert Witnesses
Plaintiff argues it was improper for the trial court to allow Fire Chief Delmar Hill and Norman Byers to give opinions as experts. Plaintiff’s complaints against Hill are: (1) He'was not qualified as an expert to give an opinion as to the cause of the fire, and (2) his opinion was contrary to the undisputed evidence. Byers’ testimony is challenged by plaintiff on four grounds: (1) He was not qualified as an expert to give an opinion as to the cause of the fire, (2) his opinion was not based on undisputed evidence, (3) his opinion was based on speculation, and (4) his opinion constituted an inference upon an inference.
The purpose of an expert witness is to aid the jury in the interpretation of technical facts or to assist in understanding the material in evidence. (Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 105, 490 P.2d 619 [1971].) The witness must have skill or experience in the business or profession to which the subject relates. He must be qualified to impart knowledge within the scope of his special skill and experience that is otherwise unavailable to the jury. (State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 [1975]; Grohusky v. Atlas Assurance Co., 195 Kan. 626, 630, 408 P.2d 697 [1965].)
The introduction of opinion or expert testimony is controlled by K.S.A. 60-456. An expert must base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. “Perceived” means knowledge acquired through one’s own senses. (K.S.A. 60-459[c].) “Made known” refers to facts put into evidence. (Ziegler v. Crofoot, 213 Kan. 480, 484, 516 P.2d 954 [1973]; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 356, 437 P.2d 219 [1968]; Casey v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 [1967].) The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge. (State v. McClain, supra; Hagood v. Hall, 211 Kan. 46, 51-52, 505 P.2d 736 [1973]; American Family Mutual Ins. Co. v. Grim, 201 Kan. 340, 344, 440 P.2d 621 [1968]; Taylor v. Maxwell, 197 Kan. 509, 419 P.2d 822 [1966].) When the trial court admits the testimony it is deemed to have made the findings requisite to its admission. (K.S.A. 60-456[c]; State v. McClain, supra; Hagood v. Hall, supra; Taylor v. Maxwell, supra.) At that point the weight of such testimony is a matter of consideration for the trier of fact. (American Family Mutual Ins. Co. v. Grim, supra; Virginia Surety Co. v. Schlegel, 200 Kan. 64, 70, 434 P.2d 772 [1967].)
Questions posed to an expert witness are not required to be in hypothetical form if the expert can be presented the pertinent facts in some other acceptable manner. (K.S.A. 60-458; Ziegler v. Crofoot, supra; Staudinger v. Sooner Pipe & Supply Corporation, supra at 104-05; Howard v. Stoughton, 199 Kan. 787, 790, 433 P.2d 567 [1967].) A judge may, however, require the witness to be further examined concerning the data upon which an opinion will be based to determine whether the witness is sufficiently advised of relevant and material matters to formulate a proper opinion. (K.S.A. 60-457; Ziegler v. Crofoot, supra; Staudinger v. Sooner Pipe & Supply Corporation, supra at 105.)
In the instant case both Hill and Byers set forth their credentials and were subjected to further cross-examination before they were allowed to express any opinion on the possible cause of the fire. Hill was the Chief of the South Hutchinson Volunteer Fire Department. In addition to the training and experience received in that capacity, the witness had attended several fire reconstruction schools, although the number of schools attended and the amount of training received is unclear from the record. We cannot say the trial court abused its discretion in allowing Hill to testify as an expert. The record indicates the trial court examined Hill in regard to his qualifications and found them adequate. The substance of the examination does not appear in the record. If the record could have demonstrated a deficiency in Hill’s expertise, it was plaintiff’s responsibility to bring that evidence before this court.
Norman Byers was an engineer with more than thirty years of experience. He has a bachelor’s degree in mechanical engineering, a master’s degree in machine design, and a doctor’s degree, all from Kansas State University. Byers taught engineering for several years at Wichita State University and at New Mexico State University. He also served as a consultant for Boeing Airplane Company, Phillips Petroleum, Idaho Nuclear Corporation, and White Sands Missile Range. He specialized in the study of material strength, heat transfer and fluid flow. At Phillips Petroleum he became involved in fire reconstruction and, although he had never been involved with fire reconstruction of a bulk gasoline storage tank, he had been involved in reconstruction work on mobile homes, buildings, residences and bulk propane tanks. His background and experience were more than sufficient to meet the “expert witness” qualifications necessary under K.S.A. 60-456(b).
Plaintiff objected to Hill’s testimony on the cause of the fire, arguing it was based on hearsay and that it was contrary to the undisputed evidence of plaintiff’s witnesses, thus impermissibly passing upon their credibility. A review of the record indicates Hill based his opinion as to the possible cause of the fire on his observations as he fought the fire, and on Ward’s deposition. Although not specific, plaintiff alleges part of his opinion was based on hearsay evidence, apparently statements of Ward. Reliance on Ward’s statements would not be impermissible because Ward testified at trial. We find no evidence that Hill testified as to the credibility of other witnesses. (See, Smith v. Estate of Hall, 215 Kan. 262, 524 P.2d 684 [1974].) Hill testified the fire might have been caused by Ward because it was the first time he had unloaded gasoline at the station and he was not familiar with the facility. The jury was entitled to accept or reject Hill’s interpretation of the facts and his theory as to the cause of the fire.
Plaintiff also argues Byers should not have been allowed to express an opinion because it was not based on undisputed fact. Byers was called to testify, not as to the cause of the fire, but as to whether the overhead tank overflowed, causing the fire. This issue was the crux of the lawsuit. Plaintiff alleged it overflowed, causing the fire; defendant alleged it did not overflow and that the fire originated at some other place. Byers reviewed the available evidence and concluded the tank did not overflow. His opinion was based on the observation of Ward, the driver, who testified he saw “sputtering” from the vent and saw no gas running down the tank or onto the ground. Byers concluded from that observation and from his own extensive knowledge as a fluid dynamics expert, that Ward had seen a scientific phenomenon (sputtering) which occurred when the tank was approximately 390 gallons from being full. In addition, Byers’ conclusion coincided with the testimony of three witnesses who said the overhead tank was empty before Ward began filling it, of Ward’s testimony that he had only 3,600 gallons of gasoline in compartment number two of the tank-trailer, and of Razak’s testimony that the overhead tank had a capacity of 4,150 gallons. Byers further buttressed his opinion by pointing out that if the tank had overflowed there would have been flames on top of the tank when the fire department arrived, but none of the firemen recalled seeing any flames on the top of the tank near the vent.
The only testimony which Byers seems to dispute is that of Mrs. Billings. When asked how he could justify his opinion in light of her testimony, Byers stated that Ward was in a better position to see what had happened. The comment was permissible under the facts of this case. The evidence before the jury was extensive. The testimony of Ward and Mrs. Billings conflicted. Reconciling the evidence called upon knowledge far beyond that possessed by the jury. While it is not permissible for an expert to pass upon the credibility of the witnesses or to give an opinion contrary to the undisputed facts of a case (Smith v. Estate of Hall, supra; Atkins v. Bayer, 204 Kan. 509, 511, 464 P.2d 233 [1970]; Frase v. Henry, 444 F.2d 1228, 1231 [10th Cir. 1971]), he can assist a jury in arriving at a reasonable factual conclusion from the evidence. Gard, Jones on Evidence, Opinion Testimony, §14.28, p. 660 (6th ed. 1972), states:
“Although an expert witness may not usurp the jury function of weighing the evidence and deciding what the facts are, the question of arriving at a reasonable factual conclusion from the evidence which is believed is quite another matter. This, too, is a jury function, but in technical or other matters requiring special knowledge, skill, experience, and the like, the jury or the judge trying the case may be quite at sea without the aid of those who understand the mysteries better than they of little or no experience in such matters.
“If it may be said that there still exists a general rule to the effect that a witness may not express his opinion upon an ultimate issue of fact, it is obvious that the extensive relaxation of the rule turns it into what amounts to an expression by the courts of reluctance or reserve in the receipt of even expert opinion which would seem to substitute the witness for the jury or the judge in the final decision. On this basis what would seem to be confusion and conflict may be looked upon as reflecting a trend toward a common sense and not an arbitrary view. This common sense view is to receive the opinion testimony where it appears that the trier of the fact would be assisted rather than impeded in the solution of the ultimate problem.”
We do not find Byers’ opinion to be pure speculation as plaintiff argues. Byers testified the overhead tank did not overflow. The record discloses a factual foundation sufficient to support this opinion. (See, Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 [1976], and authorities cited therein.) He also testified the fuel causing the fire must have originated at some other location. This opinion was based on the same factual foundation. In Virginia Surety Co. v. Schlegel, supra, the court stated:
“As many inferences may be drawn from a fact, or a state of facts, as it will justify, so long as each has a factual foundation, without violating the rule against inference based on inference.” (Syl. 5.)
Plaintiff’s contention that Byers’ opinion was based on an infer ence upon an inference has no merit. (Farmers Ins. Co. v. Smith, supra; Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P.2d 763 [1942].)
Jury Instructions
Plaintiff’s basic theory of recovery was negligence per se. It was alleged that when the overhead tank overflowed and caught fire it fell because of insufficient supports, causing more gasoline to flow under the tractor and tank-trailer. According to plaintiff the equipment would not have been so severely damaged if King Oil had complied with the state fire marshal’s regulations calling for tank supports which could withstand flame for two hours and if the overhead tank had been equipped with an internal check valve.
The trial court instructed the jury on negligence per se. Plaintiff argues the instruction was inadequate. We do not agree. In order to recover on a negligence per se theory there must exist: (1) A violation of a statute, ordinance or regulation, and (2) the violation must be the cause of the damages resulting therefrom. (Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 [1971].) That was the substance of the instruction given to the jury.
Directed Verdict
Plaintiff argues it should have been entitled to a directed verdict because of the negligence per se theory after defendants admitted violation of the fire regulations. Plaintiff’s argument overlooks the requirement the violation be the proximate cause of the damages for which plaintiff seeks recovery. (Noland v. Sears, Roebuck & Co., supra.) Under the facts of the case the issue was one properly left for the jury. Defendants argue the tractor and tank-trailer would have been destroyed notwithstanding the violation of the regulations. The evidence tended to support this conclusion. Mrs. Billings and Fire Chief Hill testified that the tractor and tank-trailer had already caught fire and three of the trailer’s compartments had melted prior to the time the overhead storage tank fell and additional gasoline poured onto the ground. Whether the presence of the additional gasoline had any effect on the destruction of plaintiff’s tractor and tank-trailer was for the jury to determine.
A review of the evidence in the case also leads us to the conclusion that the cause of the fire was in doubt and a motion for a directed verdict based upon the overhead tank overflowing was properly overruled.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from convictions for one count of aggravated burglary (K.S.A. 21-3716), one count of burglary (K.S.A. 21-3715), one count of aggravated robbery (K.S.A. 21-3427), one count of aggravated assault (K.S.A. 21-3410), and three counts of attempted murder (K.S.A. 21-3301 and K.S.A. 21-3401). The issue before this court involves Article IV of the Agreement on Detainers (K.S.A. 22-4401, et seq.).
On September 20, 1974, a complaint was filed in Harvey County, Kansas, alleging defendant committed the above crimes. Federal charges arising from the same incident were filed at about the same time and on April 7, 1975, defendant pled guilty to those charges. He was subsequently sentenced to the federal penitentiary for one term of twenty-five years and two fifty-year terms. Defendant was placed in the U. S. Penitentiary at McNeil Island, Washington.
On May 9,1975, Sedgwick County filed a request for temporary custody of defendant, pursuant to Article IV of the Agreement on Detainers so it might prosecute him on outstanding charges on another crime. Harvey County filed an identical request on August 6,1975. Two days later the federal warden offered custody of defendant to the State of Kansas as the Agreement provides. The offer was addressed to Sedgwick County, but listed the charges pending in Harvey County. On August 11, 1975, Harvey County accepted the offer of custody. Defendant arrived in Kansas on September 20, 1975. On September 22, 1975, defendant was arraigned in Harvey County and counsel was appointed. Thereafter defendant was returned to Sedgwick County where he had been jailed upon arriving in Kansas. On November 10, 1975, defendant pled guilty to the Sedgwick County charges. On December 3, 1975, Sedgwick County ordered defendant returned to McNeil Island despite the pending Harvey County charges which were known to Sedgwick County. Defendant was returned on December 9. One week later Harvey County learned of this situation and immediately attempted to regain custody of defendant. On January 16,1976, defendant filed a motion to dismiss the Harvey County charges, relying on Article IV (e) of the Agreement on Detainers. Defendant was returned to Kansas on January 20, 1976, and was later tried and convicted of the charges.
On appeal, defendant argues, inter alia, that the charges should have been dismissed because of the state’s violation of Article IV of the Agreement on Detainers. We agree. Article IV (e) of the Agreement states:
“(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
The provisions of the act were triggered when the request for temporary custody was filed and the federal authorities gave up custody of defendant. (See, State v. Clark, 222 Kan. 65, 68, 563 P.2d 1028 [1977].) Both the state and federal governments are parties to the Agreement (Article II [a]) and they are bound by its terms. When the state returned defendant without having tried him on all the outstanding charges pending in this state defendant was entitled to have them dismissed with prejudice.
While the sanction imposed may seem severe, it is mandated by the Agreement. Other jurisdictions faced with similar facts have reached the same conclusion. (See, United States v. Sorrell, 562 F.2d 227 [3d Cir. 1977]; United States v. Thompson, 562 F.2d 232 [3d Cir. 1977]; United States v. Cyphers, 556 F.2d 630 [2d Cir. 1977], cert. denied 431 U.S. 972, 53 L.Ed.2d 1070, 97 S.Ct. 2937; United States v. Mauro, 544 F.2d 588 [2d Cir. 1976]; United States ex rel. Esola v. Groomes, 520 F.2d 830 [3d Cir. 1975]; Commonwealth v. Merlo, 242 Pa. Super. 517, 364 A.2d 391 [1976].) The charges must be dismissed.
Defendant also raises two issues concerning the award of attorney’s fees pursuant to the aid to indigent defendants fund. (See, K.S.A. 22-4501, et seq.) The first issue concerns the adequacy of the award of attorney’s fees made by the state board of supervisors of panels to aid indigent defendants. After the conclusion of the criminal case, defense counsel submitted a claim voucher for the time and expense involved in the defense of the case. The board reduced the claim and made an award. A subsequent attempt by defense counsel to obtain an additional award was denied.
The thrust of defendant’s argument is that he has a constitutional right to have his defense counsel adequately compensated, particularly in a case where the prosecution was “unlawful.” We find no support for the argument.
It is the moral and ethical obligation of the bar to make representation available to the public. (See, Canon 2, Code of Professional Responsibility, 220 Kan. cx.) Quite often, fulfillment of that obligation involves the representation of a client, particularly a criminal defendant, for little or no remuneration. Enactment of K.S.A. 22-4501, et seq., has served to relieve some of the hardships involved in fulfilling an attorney’s obligation to provide legal representation to the public; but it has not cancelled the attorney’s ethical responsibility to provide representation without compensation if necessary. Court appointed counsel has no constitutional right to be compensated, much less to receive full and adequate compensation which may have been received if the same time had been spent on a fee-paying client’s problems. (See, United States, v. Dillon, 346 F.2d 633 [9th Cir. 1965].)
Claims for fees submitted to the board of supervisors of panels to aid indigent defendants are considered by the board according to the criteria set forth in the statutes and rules of this court. The decision of the board as to the amount of compensation to be awarded in any case is final. (Rule 404, Claims Under Indigent Criminal Defendants Act, 220 Kan. cviii.)
Finally, defendant challenges the constitutionality of the aid to indigent defendants recoupment statute, K.S.A. 1977 Supp. 22-4513. Under the terms of the statute a defendant is liable to the State of Kansas for any expenditure paid from the aid to indigent defendants fund. The statute provides that the expenditures shall be recovered from the defendant by sending to him by certified mail a notice of liability, stating the amount of the expenditure and a demand for repayment. The notice further states that the sum must be repaid within sixty days after receipt of the notice or the expenditure shall become a judgment bearing six per cent annual interest after it is docketed on the judgment docket in the county where the criminal case was tried. This judgment becomes a lien on real estate the same as any other civil judgment and is subject to satisfaction by execution or garnishment to the same extent as an ordinary civil judgment.
Defendant argues the statute is unconstitutional because it does not provide for notice and a hearing, violating the due process clause. In support of his argument he cites Hillhouse v. City of Kansas City, 221 Kan. 369, 559 P.2d 1148 (1977); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 42 L.Ed.2d 751, 95 S.Ct. 719 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L.Ed.2d 406, 94 S.Ct. 1895 (1974); Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983 (1972), reh. denied 409 U.S. 902, 34 L.Ed.2d 165, 93 S.Ct. 177; and Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed.2d 349, 89 S.Ct. 1820 (1969).
We find no constitutional infirmity in the recoupment statute. A defendant receives notice of the existence of the debt for legal services by certified mail at his last known address prior to the time the sum is made a judgment of record. He is given sixty days to pay the debt. Implicit in that sixty-day delay is the right to object to the judicial administrator concerning the amount of the expenditure. Even after the sum becomes a judgment the right to a hearing is present when the state attempts to collect the judgment by execution or garnishment. In either situation, the debtor has the right to be heard and, if he wishes, to contest the validity of the judgment. The right to contest a judgment at a collection proceeding satisfies due process requirements. (See, United States v. Durka, 490 F.2d 478 [7th Cir. 1973]; Stroinski v. Office of Public Defender, 134 N J. Super. 21, 338 A.2d 202 [1975]. See also, People v. Amor, 12 Cal. 3d 20, 114 Cal. Rptr. 765, 523 P.2d 1173 [1974].)
The judgment as to the conviction on the criminal charges is reversed and the trial court is instructed to discharge the defendant. The judgment as to attorney fees is affirmed.
McFarland, J., dissents from Syl. 2 and corresponding parts of the opinion. | [
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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 Calvin Bruce Higdon (defendant-appellant) guilty of one count of felony murder (K.S.A. 21-3401), one count of aggravated kidnapping (K.S.A. 21-3421), one count of aggravated robbery (K.S.A. 21-3427), and one count of rape (K.S.A. 21-3502).
The appellant contends the trial court erred in admitting his confession and in refusing to instruct on the lesser included offense of simple kidnapping. He also questions whether venue and the corpus delicti of the crime of rape were properly established.
On the morning of June 23, 1977, at approximately 5:30 Tammy Kershner said good-bye to her husband and was driven to work at the Pit Stop Self-Service Gas Station at 2348 South Broadway, Wichita, Kansas, by a girl friend. She was last seen at work in the gas station by a customer at 7:15 that morning. Donald L. Bales, owner of the station and sales manager for the Klepper Oil Company, arrived at 8:00 a.m. and discovered Tammy was gone and $465.13 was missing from the station. Her nude body was recovered two days later in a shallow grave in Sumner County, Kansas. She had been shot three times in the head.
At 9:30 a.m. on June 23, 1977, the appellant purchased a .22 hi-standard revolver from his friend Ronald Cook for $100. The two then went for target practice in the appellant’s sister’s car. Mr. Cook testified that while riding around he noticed a brown suede billfold and dark-colored moneybag on the floor of the car. The billfold contained Tammy Kershner’s driver’s license. In response to questioning the appellant admitted robbing Tammy Kershner at the Pit Stop gas station. The two then proceeded to Mr. Cook’s house where they burned the billfold and moneybag in the backyard in order to get rid of the evidence. The appellant also gave Mr. Cook several rings which were subsequently identified as the deceased’s wedding bands and then spent the afternoon paying off debts he owed on one of his cars.
Mr. Cook turned the rings over to the police the next afternoon on June 24, 1977. The appellant, who had been previously questioned in the case and released, was arrested at 1:20 a.m. on June 25,1977. He was taken to the Wichita Police Department with his sister, Rebecca Taylor, and his girl friend, Billie Kay Brown. The police recovered over $100 from the appellant’s sock upon his arrest.
Prior to questioning, officers advised the appellant of his rights and he signed a written form. He then gave numerous stories to the police in which he successively indicated more involvement in the crime. Eventually the appellant confessed to the murder of Tammy Kershner and accompanied police officers to her grave in a wooded grove near Wellington, Kansas, in Sumner County, and the shed where he shot the victim. He stated he “sexually assaulted” Tammy Kershner before killing her. The appellant also took the officers to an abandoned railroad abutment where he had disposed of the gun used to kill the deceased, and he showed them a Salvation Army drop box in the area of 1014 West 31st South in Wichita where he had placed her clothing. He then returned to the police station with the officers where he gave a taped confession of the events of the crime.
Prior to his trial the appellant unsuccessfully filed a motion to suppress his statements and taped confession. He was convicted of felony murder, aggravated kidnapping, aggravated robbery, and rape of Tammy Kershner. His motion for new trial was denied and appeal has been duly perfected.
The appellant first contends his confession was involuntarily given. After being advised of his Miranda rights the appellant told the police he had robbed and kidnapped Tammy Kershner. He said he released her south of Wellington, Kansas, and did not harm her. After being assured his girl friend and sister had been released the appellant then confessed to the murder of Tammy Kershner and took police officers to her grave.
As a general rule uncoerced statements made to police officers by a defendant who has been given warning as to his constitutional rights are admissible as evidence at his trial. State v. Cook, 224 Kan. 132, 137, 578 P.2d 257 (1978); State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 (1977), and cases cited therein. To be admissible, a confession or extrajudicial statement must have been freely and voluntarily given. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by the accused, determines the statement was freely, voluntarily, and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. State v. Treadwell, 223 Kan. 577, 578-79, 575 P.2d 550 (1978); State v. Freeman, 223 Kan. 362, 372, 574 P.2d 950 (1978); State v. Coop, 223 Kan. 302, 309, 573 P.2d 1017 (1978).
Here the appellant was afforded two separate Jackson v. Denno hearings. Each district court judge came to the independent conclusion the appellant’s statements were freely and voluntarily given. Looking at the totality of the circumstances the appellant was neither threatened nor coerced. He successively implicated himself in degrees for all of the crimes charged over an extensive time period.
The appellant also asserts there was not a full waiver of his rights. He attacks the Waiver of Rights form used by the Wichita police. It provides:
“Before we ask you any questions, you must understand your rights.
“You have the right to remain silent.
“Anything you say can be used against you in court.
“You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
“If you cannot hire a lawyer, the court will appoint one for you.
“If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“I have read this statement of my rights and I understand what my rights are.”
Specifically the appellant argues because he was never asked if he wished to waive his rights, waiver did not take place. This argument lacks merit. The Kansas Court of Appeals recently addressed this issue in State v. Baker, 2 Kan. App. 2d 395, 580 P.2d 90 (1978). There the court held:
“[T]he mere absence of an express waiver of Miranda rights by a defendant, who has been advised of those rights and has acknowledged his understanding of them, will not in all cases preclude the use of a subsequent confession obtained during custodial interrogation.” (pp. 401-402.)
See also State v. Wilson, 215 Kan. 28, 30, 523 P.2d 337 (1974).
Here the appellant does not assert he misunderstood any of his rights or he was denied the opportunity to exercise those rights. He read the form and after he was given the opportunity to have it explained to him, he voluntarily .signed it. The record amply reflects the appellant knowingly and voluntarily waived his rights and participated freely in the conversation with the officers.
The appellant next contends the state failed to establish the corpus delicti of the crime of rape. We have often stated that any material facts, including the corpus delicti itself, may be proved by direct testimony or by indirect or circumstantial evidence or a combination of both. No exclusive mode of proof of the corpus delicti is prescribed by the law. State v. Pyle, 216 Kan. 423, 432, 532 P.2d 1309 (1975); see also State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977); State v. Johnson, 220 Kan. 720, 723, 556 P.2d 168 (1976). Moreover, the corpus delicti in a rape cáse may be proved by extrajudicial admissions and circumstantial evidence. State v. Cardwell, 90 Kan. 606, 135 Pac. 597, 1916B L.R.A. 745 (1913); Annot, 40 A.L.R. 460, 461 (1926).
Here the evidence, independent of the appellant’s confession, established the corpus delicti of the crime of rape. Dr. Eckert testified there was acid phosphatase, a male hormone found in seminal fluid, present in the vaginal walls of the victim. He also stated if she had been alive her normal movements and hygiene would have removed the acid on a regular basis. The victim’s body was found nude when recovered from the grave, and the clothing was placed in a different location from the grave. There were lacerations and cuts above the pubic area and on the breasts. Thus, in the case at bar there was sufficient competent evidence from which the corpus delicti of the crime of rape was established.
The appellant contends the state failed to properly allege and establish the venue for the rape and murder. The appellant presents the same arguments here that were advanced and rejected in the recent cases of State v. Bell, 224 Kan. 105, 577 P.2d 1186 (1978) and State v. Duvaul, 223 Kan. 718, 576 P.2d 653 (1978). Venue for the murder and rape was proper in either Sedgwick or Sumner county.
Finally, the appellant argues the trial court erred in refusing to instruct the jury on the possible lesser included offense of simple kidnapping. He claims that bodily harm must be committed in the same county in which the abduction took place in order to be convicted of aggravated kidnapping. Neither Kansas statute (K.S.A. 21-3421) nor case law makes such a requirement. In State v. Corn, 223 Kan. 583, 575 P.2d 1308 (1978) our court held:
“The trial court has an affirmative duty to instruct on lesser included offenses whether or not requested to do so by the accused, but the duty arises only where there is at least some evidence on which the jury might convict of the lesser offense. Failure to instruct on some lesser degree of a crime is not grounds for reversal if the evidence at trial excludes a theory of guilt on the lesser offense. (State v. Wright, 221 Kan. 132, 557 P.2d 1267.) Bodily harm to the victim is the additional element elevating kidnapping to aggravated kidnapping.” (p. 591.)
Here the appellant admitted both the rape and murder of Tammy Kershner. There was no need to instruct on simple kidnapping, and the appellant’s argument must fail.
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The opinion of the court was delivered by
Miller, J.:
The plaintiff, John P. Miller, commenced this action against defendant, Sirloin Stockade, Inc., seeking damages for breach of an alleged oral contract whereby the plaintiff agreed to sell and the defendant agreed to buy all of the potatoes and other produce required by defendant’s seven restaurants in Kansas and Nebraska during the calendar year 1974. Plaintiff appeals from summary judgment entered by the trial court, which ruled that no enforceable contract was entered into because the quantities of the potatoes and other produce were not specified, and for the further reason that the defendant did not admit in its pleadings, testimony, or otherwise in court, that a contract of sale was made.
The issues on appeal are: (1) Is a “requirements contract” valid in Kansas? (2) Did Sirloin Stockade admit in its pleadings, testimony, or otherwise in court, that a contract for sale was made? (3) Did the trial court err in entering summary judgment when there were material facts in dispute?
The plaintiff also listed as a point on appeal a contention that the trial court erred in overruling his motion for a new trial, made on the basis of newly discovered evidence; however, this point was not briefed and was not argued on appeal. Points specified but neither briefed nor argued are deemed abandoned. State, ex rel., v. Unified School District, 218 Kan. 47, 52, 542 P.2d 664 (1975).
Miller is a wholesale produce dealer in Salina, Kansas. He supplied produce to a Sirloin Stockade restaurant located there. Early in January, 1974, he met with the defendant’s district manager, Tom Layne, and the local restaurant manager, Robert Danskin. The depositions of the plaintiff, Layne, and Danskin disclose that an oral agreement was made between Layne and Miller, whereby Miller would supply all of the baking potatoes and all other produce required by each of the seven outlets in Layne’s district during the year 1974. The price of potatoes was fixed at $6.75 per hundred; the price of the rest of the produce was to be “competitive.” Miller commenced servicing the seven stores. He ordered two carloads of potatoes in order to have an ample supply. Approximately sixty days later, all of the restaurants except the one at Salina ceased placing orders with Miller. He was paid for all potatoes and all other produce he had delivered. Miller was left with a huge inventory of potatoes, and he sustained a sizable loss.
We turn first to the question of the validity of a “requirements contract.” K.S.A. 84-2-306 provides:
“(1) A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded.
The Kansas comment to this section states:
“Subsection (1) is concerned with the ambiguities of contracts which set quantity in terms of the seller’s output or buyer’s requirements rather than a definite amount. The section rejects the construction of some cases that such terms render the agreement unenforceable for reason of indefiniteness or lack of mutuality of obligation. The section fixes some boundaries for variance in the performances of the parties by requiring that the tender of output or demand for requirements be made in good faith, and that the quantity not be unreasonably disproportionate to stated estimates or previous experience.”
Even before the advent of the Uniform Commercial Code, we recognized the validity of requirements contracts. Southwest Kan. Oil & G. Co. v. Argus P. L. Co., 141 Kan. 287, 39 P.2d 906 (1935); City of Holton v. Kansas Power & Light Co., 135 Kan. 58, 9 P.2d 675 (1932).
In the case at bar, the alleged contract was for all of the baking potatoes and other produce needed and required by the defendant’s seven restaurants, during the period of a year. We hold that the contract was definite enough in quantity, under the U.C.C., and was not unenforceable by reason of indefiniteness.
The primary issue before us is whether the defendant has admitted in its “pleading, testimony or otherwise in court that a contract for sale was made.” K.S.A. 84-2-201 provides:
“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. . . .
“(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
“(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made . . . .”
Defendant, in its pleading, does not admit the existence of a contract. Plaintiff contends, however, that the testimony of both Layne and Danskin, in their depositions, constitutes an admission on behalf of Sirloin Stockade that an oral contract was entered into. Neither Layne nor Danskin, however, were officers, agents or employees of Sirloin Stockade at the time their depositions were taken. Plaintiff does not cite any authority which supports the proposition that a former employee may make a binding admission, in court, on behalf of a former employer, and we find no such authority. K.S.A. 60-236, a part of our rules of civil procedure, sets forth the procedure whereby one party may request admissions of another; .no such procedure was followed here. K.S.A. 60-460(g), (h), and (i) are indicative of who may make admissions: parties themselves, their representatives, agents authorized by the party before the termination of such relationship, and the like. Layne and Danskin were no longer employed by Sirloin Stockade when their depositions were taken. There is no showing that they were authorized to make any binding admissions or statements on behalf of the defendant at that time.
There is no suggestion by the plaintiff that the defendant has admitted the making of the contract other than through the testimony of Layne and Danskin. An admission, to be binding in court upon a party, must be made by the party or by an authorized agent. A former employee of a corporation cannot, without authorization, bind the corporation by “admissions” made during the taking of the former employee’s deposition. We conclude that Layne and Danskin’s testimony does not constitute an admission within the framework of K.S.A. 84-2-201(3)(¿>), or within the rules of civil procedure or the rules of evidence.
Finally, we turn to the plaintiff’s claim that there were material facts in dispute at the time the court entered summary judgment. On the concluding page of his brief, the plaintiff alleges that material facts remained in dispute, and that he had not concluded his discovery when summary judgment was entered. He does not point out what facts were in dispute, and we conclude that the only issue was whether an oral contract for sale of produce was made. Defendant denied the making of the contract, for whatever reason we need not speculate, and moved for summary judgment. The court considered the pleadings and depositions at the time it ruled on the motion.
The plaintiff offered no affidavits in opposition to the motion for summary judgment, and he did not seek additional time to furnish affidavits or to take additional depositions. There was no showing before the trial court that discovery was not complete, or that plaintiff had additional evidence which he was then unable to furnish.
K.S.A. 60-256(e) and (f) provide as follows:
“(e) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
“(f) Should it appear from the affidavits of a party opposing the motion that he or she cannot for reasons stated present by affidavit facts essential to justify his or her opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
The federal rule was amended in 1963 by the addition of the following two sentences to federal rule 56 (e):
. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Rule 56 (e), F.R. Civ. P.
Judge Gard, in his Kansas Code of Civil Procedure (1977 Supp.), in commenting on K.S.A. 60-256, says:
“Although the procedure has seemed to be plain under the Kansas rule with respect to the use of affidavits to support a motion for summary judgment, particularly in the light of the federal precedents, any lingering doubts have now been resolved by the decision in Ebert v. Mussett, 214 K 62, 519 P2d 687. Though the Kansas rule does not contain the express provision of Federal Rule 56 (1963 amendment) prohibiting a non-moving party from relying upon allegations of his pleadings to oppose facts stated by affidavit in support of a motion for summary judgment, the same prohibition exists in Kansas by reason of the implications of this section and the case law which has construed it. As the court says in Ebert v. Mussett, supra, the rule is intended to enable a party to pierce the allegations of fact in his adversary’s pleadings and to avoid a trial on fact issues which are paper issues only. Consequently, the rule is now spelled out to the effect that there is an affirmative duty upon the non-moving party to respond with counter affidavits or take advantage of the alternatives offered to him, which are to ask leave to make additional discovery or to show good cause why he cannot obtain and present by affidavits facts essential to justify his position. He may, of course, ask for additional time for procuring such counter-affidavits. Failing in these opportunities a motion for summary judgment showing by affidavits (or other discovery records, for that matter) that there is no factual dispute and that the moving party is entitled to judgment as a matter of law, the motion should be granted and judgment entered accordingly.” (Emphasis supplied.) (p. 98.)
The plaintiff in the action before us made no written response to the motion for summary judgment; he filed no affidavits, he sought to take no additional depositions, he requested no additional discovery. Upon the record before the trial court, and before us, it is clear that the defendant, the party against whom enforcement of the oral contract is sought, does not admit in its pleadings, in any testimony on its behalf, or otherwise in court, that an oral contract was made. Plaintiff has evidence of the contract; but under K.S.A. 84-2-201, that is not enough. He must have an admission from the defendant, and none appears.
Once the motion for summary judgment was filed, the plaintiff could not bide his time and wait for trial to see if some officer or authorized employee of the defendant would then admit that an oral contract for sale was made; plaintiff was obligated, pursuant to K.S.A. 60-256, to respond, and to present to the court, by affidavit, deposition, or otherwise, evidence of such an admission; no response was made. Accordingly, we hold that upon the record there was no genuine issue of fact. The district court properly sustained the motion for summary judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This action was commenced in the district court of Saline County by plaintiff-appellee Junko Kendall against her former husband, Keith R. Kendall, for division of property and alimony pursuant to K.S.A. 60-1611. Keith appeals from the judgment entered by the trial court.
At the outset we note that the only testimony in the trial court was that of Mrs. Kendall, a Japanese who obviously experiences some difficulty with the English language. It is difficult to determine from the trial transcript, printed record and briefs the exact time sequence of the various facts before the trial court. However, we will place them in their apparent chronological order as disclosed by the printed record and trial transcript.
Plaintiff and defendant were married December 1, 1952, in Sapporo, Japan, and continued to reside there until June, 1953, when they came to the United States. Keith was in the military service and prior to his enlistment had been a resident of the State of Ohio. Upon the parties’ arrival in the United States, Keith was discharged and it appears that they then went to West Virginia, where they resided for some period of time. During this period Keith was attempting to find employment in the steel mills in Ohio. Eventually he found employment and the parties settled in Steubenville, Ohio. Subsequently, Keith left his wife and went to Canada with a girl friend. Keith and his newly-found love resided for a few months in Canada and then he returned to Junko in Steubenville. Later Keith again joined the military service and was stationed at Ft. Knox, Kentucky. He sent Junko to live with friends in Ohio and took his girl friend to Ft. Knox. Keith and his current girl friend came to a parting of the ways and Junko was asked to return to him in Kentucky. She did. Keith was subsequently sent to Korea for a tour of duty lasting I-V2 to 2 years. The record is silent as to the whereabouts of Junko during this period. Upon Keith’s return he was stationed in the state of Washington where Junko joined him. Approximately 1 year later, Keith was transferred to Germany where he and Junko resided for some 3 years before being returned to Washington. Keith’s tour of duty was completed but he re-enlisted and was sent to Viet Nam. While Keith was in Viet Nam, Junko returned to Japan for about 1 year. Keith returned to the United States in 1971 and Junko joined him at Ft. Riley, Kansas, where they lived until Keith again went to Viet Nam. At that time, Junko moved to Salina and has been a continuous resident of Kansas since 1971. When Keith’s latest tour of duty in Viet Nam was completed, he was returned to Indiana where he retired from military service. The record is confusing as to the time spent in Indiana. It appears that Keith attended business college in Indiana, worked there and eventually returned to Ohio. In June, 1973, Keith filed an action for divorce in the state of Ohio and a decree was granted in October, 1973. Sometime in 1973, Keith returned to Viet Nam as a civilian to pick up his most recent girl friend, whom he met during his military tour of duty. He returned with her to the United States where they were eventually married, presumably after the Ohio divorce had been entered. Service on Junko in the Ohio case was by certified mail in accordance with the Ohio Rules of Civil Procedure. She acknowledges receiving notice of the Ohio action but made no appearance in the Ohio proceedings and did not voluntarily submit to the jurisdiction of the Ohio court.
On October 8, 1974, Junko filed her action in Saline County for a division of property and allowance of alimony, pursuant to K.S.A. 60-1611. Defendant was served personally in Ohio pursuant to K.S.A. 60-308(h)(8), entered his appearance in the Kansas action and filed an answer to the petition. He failed to respond to Kansas discovery procedures, failed to comply with specific orders of the trial court, failed to cooperate with his counsel, and failed to appear for trial. By his answer Keith contended that the Kansas court did not have jurisdiction to hear the case filed by Junko due to the prior decree entered in Ohio. No evidence in support of his contention was oflFered at the time of trial. After a trial, Junko was awarded certain personal property within Kansas and an alimony judgment payable $200.00 per month until her death or remarriage. Defendant, Keith R. Kendall, appeals.
The Ohio divorce decree states:
“This cause came on to be heard on the Complaint of the Plaintiff, and the evidence, the Defendant having been duly served with service of Summons according to law.
“The Court finds, from the evidence adduced, that the Plaintiff has been a resident of Ohio for at least one year, and a bona fide resident of this Stark County for more than ninety days immediately preceding the filing of his Complaint, and that the parties were married December 1, 1952 at Sapporo, Japan, and that no children have been born of said marriage.
“The Court further finds, that the Court has jurisdiction of the parties, and jurisdiction of the subject of this action.
“The Court further finds, from the evidence adduced, that the allegations of the Complaint are true, and that the Defendant has been guilty of gross neglect of duty, and that the Plaintiff is entitled to a divorce as prayed for in his Complaint.
“It is hereby ordered, adjudged and decreed that the marriage contract heretofore existing between the parties is hereby dissolved and held for naught, and the parties are hereby released and discharged from the duties and obligations of the same.
“It is further ordered, adjudged and decreed that all property presently in the possession of the respective parties shall remain as their individual property, free and clear of any claims of the other party.
“Plaintiff to pay the costs of this action, taxed at $__No record.”
A copy of the journal entry reflecting the findings and judgments of the Ohio court was admitted in evidence by stipulation. The only other evidence before the trial court was the testimony of Junko, a copy of the clerk’s docket sheet from the Ohio case, a stock certificate and a statement from Keith authorizing Junko to endorse insurance checks on their mobile home in Salina.
The trial court gave full faith and credit to the Ohio decree insofar as it granted Keith a divorce but found that the Ohio court did not have personal jurisdiction over Junko. The court then found that it had personal jurisdiction over Keith and proceeded to make an order dividing the property of the parties and granting alimony to Junko.
Appellant asserts two principal points on appeal. First, he contends it was error for the Saline County District Court to conclude that the Ohio court did not have personal jurisdiction over Junko and second, that it was error for the court to conclude that it had jurisdiction to enter orders for alimony and property settlement.
Appellant’s basic argument appears to be that he and Junko were residents of Ohio when he re-enlisted in the military service, that he had no intent to change his domicile, that he returned to Ohio after his military discharge and therefore, under the Ohio long arm statute, the Ohio court obtained personal jurisdiction over Junko in the Ohio divorce proceedings. Appellant further contends that the Ohio decree is res judicata as to all matters growing out of the marriage relationship and therefore the Kansas court had no jurisdiction to entertain Junko’s suit.
Rule 4.3 of the Rules of Civil Procedure for the State of Ohio provides, in part:
“(A) When Service Permitted. Service of process may be made outside of this state, as provided herein, in any action in this state, upon a person who at the time of service of process is a nonresident of this state or is a resident of this state who is absent from this state. The term ‘person’ includes an individual . . . who, . . . has caused an event to occur out of which the claim which is the subject of the complaint arose, from the person’s:
“(8) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state,
“(B) Methods of service.
“(1) Service by Certified Mail. Service of any process shall be by Certified Mail unless otherwise provided by this rule.”
This provision as to long arm jurisdiction is almost identical to our statute, K.S.A. 60-308(b)(8). Both statutes give the party to the marital relationship the right to obtain a personal judgment against the other spouse, or ex-spouse, if the parties lived in the marital relationship within the state and if the party bringing the action continues to reside in the state where the action is commenced.
K.S.A. 60-1611 provides:
“A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state; except, that in the event the defendant in such action, at the time of such judgment or decree, was a resident of this state and did not personally appear or defend the action in the court of such state or territory, and such court did not have jurisdiction over his or her person, all matters relating to alimony, and to the property rights of the parties, and to the custody and maintenance of the minor children of the parties, shall be subject to inquiry and determination in any proper action or proceeding brought in the courts of this state within two (2) years after the date of the foreign judgment or decree, to the same extent as though the foreign judgment or decree had not been rendered.”
The question squarely before this court is whether the Kansas trial court, based upon the evidence before it, was required to recognize the decree of the Ohio court as determining all matters relative to property and alimony. We think not.
The basic case on extraterritorial jurisdiction is the historic decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), wherein the United States' Supreme Court laid down the rule that a personal judgment could not be rendered by a court unless there was personal service upon the defendant within the territorial jurisdiction of the court. The doctrine of Pennoyer v. Neff has been modified over the years by decisions of the United States Supreme Court and it is now generally accepted that non-domiciliary jurisdiction sufficient to support a personal judgment can be obtained in certain circumstances. In International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), the Court softened the previous rule and adopted a standard based upon minimum contacts with the forum state and the doctrine of “fair play and substantial justice.” For the latest discussion of the principles set forth in International Shoe see Shaffer v. Heitner, 433 U.S. 186, 53 L.Ed.2d 683, 97 S.Ct. 2569 (1977).
For the Ohio court to have obtained personal jurisdiction over Junko the parties must have lived in the marital relationship in Ohio and Keith must have continued to reside in Ohio following Junko’s departure from that state. It is not disputed that the parties lived in the marital relationship in Ohio on various occasions. It is equally clear that they lived in the marital relationship in numerous other states and at least two foreign countries with the last marital domicile being Kansas. Junko did not depart the state of Ohio leaving Keith as a resident. She accompanied him to Kansas when he left Ohio. The record is totally void of any evidence upon which the trial court could find continuous residence by Keith in the state of Ohio or that Ohio long arm jurisdiction had been properly invoked. In fact, these contentions were never presented to the trial court until raised by appellant in post-trial motions. To the contrary the only evidence before the court was the testimony of Junko and she testified they last lived together in the marital relationship in Kansas in 1971 and that she has remained a resident of Kansas ever since. Keith’s argument is that as he and Junko were living in Ohio at the time of his last enlistment in the military service, his residency continued in Ohio throughout the balance of his military career and that upon his eventual return to Ohio after his military discharge he could then elect to take advantage of the Ohio long arm statute to subject Junko to the personal jurisdiction of the Ohio court. Spires v. Spires,7 Ohio Misc. 197 (1966). The evidence, meager as it is, does not support this position. Keith was discharged in Indiana and apparently attended school and worked there. The Ohio decree merely finds that he was a resident of that state for more than one year prior to the filing of the Ohio petition in June of 1973. The parties’ last marital domicile was Kansas where the parties jointly purchased a mobile home, which is still occupied by Junko and being paid for by her.
It is well settled in Kansas that a divorce decree rendered in any other state of the United States is res judicata as to the question of divorce, and is entitled to full faith and credit in Kansas if granted in accordance with the laws of the other state. Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971); Willoughby v. Willoughby, 178 Kan. 62, 283 P.2d 428 (1955); Fincham v. Fincham, 174 Kan. 199, 255 P.2d 1018 (1953).
It is also well recognized that an action for alimony and property division may be maintained in Kansas even though an ex parte divorce may have been granted in another state so long as the requirements of K.S.A. 60-1611 are met and proper service obtained. Willoughby v. Willoughby, 178 Kan. 62; Fincham v. Fincham, 174 Kan. 199. Kansas, as the domicile of Junko Kendall, has a right and even an obligation to determine for itself whether the Ohio court had personal jurisdiction over the parties, at the same time giving consideration to the finding of the Ohio court that it had jurisdiction over the parties to the action. Vanderbilt v. Vanderbilt, 354 U.S. 416, 1 L.Ed. 2d 1456, 77 S.Ct. 1360 (1957); Williams v. North Carolina, 325 U.S. 226, 89 L.Ed. 1577, 65 S.Ct. 1092 (1945); Williams v. North Carolina, 317 U.S. 287, 87 L.Ed. 279, 63 S.Ct. 207 (1942).
In Armstrong v. Armstrong, 350 U.S. 568, 100 L.Ed. 705, 76 S.Ct. 629 (1956), a husband, while residing in Florida, obtained an ex parte divorce from his wife who had established a domicile in Ohio. Previously the parties had been residents of Florida and the husband continued to be. Constructive service was had on the wife in Ohio and the decisions reflect that she had actual knowledge of the suit and employed an Ohio attorney in connection therewith. Armstrong v. Armstrong, 162 Ohio St. 406, 123 N.E.2d 267 (1954). She made no appearance in the Florida action and, after the divorce was granted in Florida, filed suit in Ohio for alimony. The Florida divorce decree provided:
“It is, therefore, specifically decreed that no award of alimony be made to the defendant ...” 350 U.S. at 569.
The husband in the Ohio action pled the Florida decree as a bar to any action by his ex-wife in Ohio. The Ohio court recognized the decree was valid as to the granting of the divorce but not as to the denial of alimony and proceeded to enter an alimony award to the wife. The Ohio Supreme Court recognized its authority to determine whether Florida had obtained personal jurisdiction over its citizen and stated:
“We would approve the rule that such a decree as it concerns the denial of alimony to the wife is not entitled to full faith and credit in another state. A decree of that kind is one in personam and requires either an appearance by, or lawful personal service on, the wife, in order to have extra territorial effect. In other words, in a situation of the kind under discussion, that part of the decree granting a divorce may be immutable, but that part which purports to fix alimony rights is not, and alimony may be the subject of adjudication in the court of another state at a future time.” 162 Ohio St. at 410.
The United States Supreme Court affirmed the Ohio decision. Armstrong v. Armstrong, 350 U.S. 568 (1956).
A lengthy order for pre-trial was issued by the court and a demand for production and inspection of documents was made by Junko. Defendant’s counsel attempted, without success, to obtain the cooperation of his client in responding to the court’s orders. If defendant had responded, as ordered, the factual determination of Keith’s residence in Ohio and whether Junko’s later action was barred by the Ohio decree might have been clarified. His failure to comply with the court’s orders deprived the trial court of vital information which might have been beneficial to Keith’s position. On the other hand, compliance might have been fatal to his position. We cannot base our decision on speculation as to what might have been disclosed by such compliance.
On the basis of the entire record and proceedings in the trial court we cannot say the court committed error in finding that the Ohio court did not have personal jurisdiction over Junko and in further finding that it had jurisdiction to enter a personal judgment for alimony pursuant to K.S.A. 60-1611.
Each party herein has requested an allowance of attorneys’ fees and costs to be paid by the other party. Having carefully considered the record, trial transcript, all exhibits and briefs, the applications for attorneys’ fees and costs are denied.
The judgment is affirmed.
Owsley and McFarland, JJ., dissenting. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a joint appeal from judgments of conviction and sentence. The judgments were entered on jury verdicts in a joint trial. John L. Sullivan, III, was convicted and sentenced on charges of felony murder (K.S.A. 21-3401), premeditated murder (K.S.A. 21-3401), and criminal injury to persons (K.S.A. 21-3431). James Joseph Sullivan was convicted and sentenced on charges of felony murder (K.S.A. 21-3401) and criminal injury to persons (K.S.A. 21-3431). All charges arose from a shooting incident occurring on June 13, 1975, at the farm home of Randy Moore near Valley Center, Kansas. Lonnie Moore, a cousin of Randy Moore, died of gunshot wounds. Randy Moore was slightly injured by wood splinters caused by a bullet which struck a screen door near where he was standing.
At the outset two preliminary matters should be addressed briefly. In State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), the provisions of the criminal injury to persons statute, K.S.A. 1976 Supp. 21-3431, are held so vague and uncertain they fail to establish reasonably definite standards of guilt to comply with the constitutional requirements of due process of law. The wording of K.S.A. 21-3431 is identical to that in K.S.A. 1976 Supp. 21-3431. The state concedes the convictions of both defendants under this statute should be and the same are hereby reversed and set aside.
The second matter concerns the two murder convictions imposed against John L. Sullivan, III, arising out of a single homicide. John was convicted and sentenced on both premeditated murder and felony murder. As pointed out in State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), two first degree murder convictions and sentences stemming from one homicide constitute double punishment and cannot be allowed to stand. When an information charges the defendant with premeditated murder and felony murder for the commission of a single homicide the state may introduce evidence on both theories at the trial, but the trial court should instruct the jury on both theories in the alternative in order to avoid double convictions or sentences. If either or both theories are proven only one conviction of murder in the first degree results. Accordingly, one of the sentences for murder in the first degree against John L. Sullivan, III, arising out of the homicide of Lonnie Moore must be and the same is hereby set aside.
We turn now to the remaining points raised by these two appellants as they bear upon the conviction of each appellant for the murder in the first degree of Lonnie Moore.
The first point we will address relates solely to the appeal of John L. Sullivan, III, hereinafter referred to as John. John raises an issue under Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968), concerning the use of a taped confession given to the police by James Joseph Sullivan, hereinafter referred to as James. James was jointly tried and convicted with John but he did not testify at the trial and could not be subjected to cross-examination. This case illustrates some of the pitfalls encountered in a joint trial of two or more defendants when only one defendant has given a statement or confession to the police.
In a criminal proceeding a previous voluntary statement by the accused relative to the offense charged is admissible as against the accused under K.S.A. 60-460(f) as an exception to the rule excluding hearsay evidence. However, such a statement or confession is admissible only against the person making the statement or confession.
Prior to Bruton v. United States, supra (May 20, 1968), the prevailing rule in Kansas and elsewhere was:
. . [W]here two or more defendants are jointly tried for the same offense, a declaration made by one may be admitted in evidence as against the maker, provided the court, by proper instructions, limits the application of such statement and makes clear to the jury that a statement made by one defendant may be considered against him only and not against a co-defendant. . . .” (State v. McCarty, 199 Kan. 116, 120, 427 P.2d 616 [1967], cert. den. as to McCarty, cert. granted as to Boyd, 392 U.S. 308, 20 L.Ed.2d 1115, 88 S.Ct. 2065 [1968], Emphasis supplied.)
In McCarty v. Kansas, 392 U.S. 308, 20 L.Ed.2d 1115, 88 S.Ct. 2065 (1968), the judgment of the Kansas Supreme Court was vacated with respect to the codefendant Boyd and the case was remanded for further consideration in light of Bruton v. United States, supra.
In Bruton it was said:
“. . . Before discussing this, we pause to observe that in Pointer v. Texas, 380 U.S. 400, we confirmed ‘that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him’ secured by the Sixth Amendment, id., at 404; ‘a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.’ Id., at 406-407.” (p. 126.)
The Bruton court went on to discuss the reason for the Bruton rule and its importance if the defendant’s rights are to be protected:
“. . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. . . .” (pp. 135, 136.)
In Bruton the conviction was set aside even though an instruction had been given that the jury was to consider the confession only against the confessor. The Bruton rule has been softened somewhat in later cases. In Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726 (1969), we have an example of this softening. There it was held that although the use of confessions by codefendants who did not testify amounted to a denial of the petitioner’s constitutional right of confrontation, the evidence supplied through such confessions was merely cumulative and the other evidence against the petitioner was so overwhelming that the court could conclude beyond a reasonable doubt that the denial of petitioner’s constitutional rights constituted harmless error. In Harrington it was stated:
“The question whether the alleged error in the present case was ‘harmless’ under the rule of Chapman arose in a state trial for attempted robbery and first-degree murder. Four men were tried together . . . over an objection by Harrington that his trial should be severed. Each of his three codefendants confessed and their confessions were introduced at the trial with limiting instructions that the jury was to consider each confession only against the confessor. . . .” (p. 252. Emphasis supplied.)
The court went on to state:
“. . . We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed.” (p. 254.)
The evidence of Harrington’s participation in the murder was overwhelming. He admitted that he fled from the scene with the other three codefendants. Several of the eye-witnesses placed petitioner at the scene of the crime. The murder arose out of an attempted robbery inside a store which ended in the death of the victim.
Harmless error must depend upon the facts of each case. See State v. Oliphant, 210 Kan. 451, 502 P.2d 626 (1972).
The trial court in the present case relied on United States v. DeBerry, 487 F.2d 448 (2nd Cir. 1973). This case comes from the second circuit court of appeals in which the principal question raised was a claim of deprivation of the Sixth Amendment right to effective counsel by virtue of the fact that the same attorney represented both appellants below. The major portion of the opinion was devoted to that question. In the opinion the court considered what it referred to as “interlocking confessions” of codefendants. The admission of the confessions was held not to be error since the confessions were substantially the same. However, on a close reading of the opinion it is apparent that the so-called rule of interlocking confessions is not an exception to Bruton but is based on the harmless error rule previously discussed.
In United States v. DiGilio, 538 F.2d 972 (3rd Cir. 1976), the United States Court of Appeals points this out as follows:
“The harmless error rule is not a predicate for the admission of evidence. We expressly disapprove of the suggestion that there is a ‘parallel statements’ exception to the Bruton rule in this circuit. Hearsay errors both of constitutional and of non-constitutional dimensions will in appropriate cases be regarded as grounds for reversal, and this includes the hearsay error upon which the Bruton court focused.” (p. 982.)
The trial court in our present case, in admitting the confession of James, relied in part on United States ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2nd Cir. 1975), where it was said:
“. . . The scope of the Bruton decision has been considered by our court on a number of occasions, and we have concluded that error of constitutional dimensions does not inevitably occur if the questioned confession is admitted under proper instructions from the court concerning its limited use and purpose. The likelihood of error must be measured against the prejudicial consequences of the failure of the jury to follow the court’s instructions, i.e., the ‘devastating’ effect of the incriminations contained in the codefendant’s admission's. [See Bruton, at 136, 88 S.Ct. 1620, 20 L.Ed.2d 476]. Where the confession adds nothing to what is otherwise clearly and properly in the case, it can have little ‘devastating’ effect.” (p. 48. Emphasis supplied.)
A confession by an accused relative to the offense charged is admissible only against the confessor and in a joint trial of codefendants it is necessary that an instruction be given to the jury limiting the use and purpose of the confession to a determination of the guilt of the confessor. In the absence of such a limiting instruction this court under the facts of this case cannot say it was harmless error beyond a reasonable doubt.
Now let us turn to the facts of the present case keeping in mind that the admission of the confession of James was a violation of the Bruton rule and such violation can be disregarded only if this court can say the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065 (1967), reh. den. 386 U.S. 987, 18 L.Ed.2d 241, 87 S.Ct. 1283; and State v. Thompson, 221 Kan. 176, Syl. ¶¶ 4, 5, 558 P.2d 93 (1976).
John gave no statement to the police, but when James was questioned by the police James gave them a taped statement covering the actions of both defendants before, during and after the homicide. James told the police that after he got off work he went over to John’s home. John was mad at R.andy Moore and wanted to “get back at Randy.” John’s purpose in wanting to go to Randy’s house was to steal whatever Randy had of value'. John and James prepared to go to Randy’s house by getting certain things together to take with them. John got his gun, a pack in which to carry things, and a canteen. James took his hunting knife and leather sheath. They walked out to the farm residence of Randy Moore, leaving John’s house at 7:00 p.m. John’s gun was a Ruger .22-caliber semi-automatic rifle. When they arrived they noticed there were people in the house so they waited behind some outbuildings for the people to leave. They noticed lights in the upstairs windows. John and James split up and took separate positions on opposite sides of the outbuilding near the rear of the house. They were close enough to recognize Randy Moore and his wife standing in front of an upstairs window. After waiting for a half hour James heard someone inside the house suggest they should let the dogs outside. The backdoor opened and two men appeared on the back porch. At that instant James heard shots being fired by John in rapid succession. He saw a flashlight drop on the porch, which flashlight had been carried by one of the men. The two men ran back into the house. James ran over to where John was standing with the gun. He heard Randy Moore scream from inside the house, “They got Lonnie, he’s dead, he’s dead.” The lights went off in the house and both John and James ran. On the way back to Valley Center they hid the gun under a bridge. They arrived back at John’s residence at about 1:00 a.m. The following day John and James recovered the gun, dismantled it and scattered the parts along the roadside north of Wichita.
The confession of James as summarized above was not admitted in evidence during the state’s case in chief. Instead, the two defendants were tied to the homicide by the testimony of Pat Benefield, a friend of the defendants. He testified that he was present at John’s trailer house the night before the homicide. John and James were planning a burglary. They wanted to “rip off” Randy Moore because Randy had taken some items belonging to John. Benefield testified that he was also present the following night when John and James were preparing to go to Randy’s house. He drove John and James into the country and let them out within a mile of the Randy Moore residence. He further testified he was present at John’s trailer house when John and James returned from the country and John said, “Lonnie, I had to shoot him, he seen me.”
John testified in his own defense. His story was different in several details. He explained that Randy and Tami Moore had lived with him prior to the homicide. There had been an argument over Randy selling marihuana and cluttering up John’s trailer house. John testified that Randy had several guns and a vicious Doberman pinscher dog. The dog had been trained as an attack dog. When John requested that the Moores move out they did so, but they took some of John’s property when they left. This property consisted of five or six stereo records, a knife used by John in his work as a meat trimmer, and a set of three sharpening stones. John’s version of how the homicide occurred was that he and James went to Randy’s house to search for and obtain the property which belonged to him. He was afraid of Randy and his vicious guard dog. That was why he armed himself. He picked a Friday night because that was a night Randy usually was not at home. When they arrived at the farm house they waited for a half hour, thinking the occupants would leave. John and James had decided to leave when they heard someone inside the house say they were letting the dogs outdoors. John said he never saw anyone on the porch. The dog advanced on him and he emptied his rifle at the dog to defend himself. He and James then beat a hasty retreat after hearing someone inside the house say that Lonnie was dead. John said he barely knew Lonnie Moore and had no reason to shoot him. The general theory of John’s defense was that the shooting of Lonnie Moore was done unintentionally while John was leaving the premises and that he shot to protect himself against the vicious guard dog.
In rebuttal the state offered the confession of James which varied from John’s testimony at trial in two respects: First, James had said that John and he had gone to Randy’s home with the intention of burglarizing the house and taking property belonging to Randy; and second, James had said the shooting occurred immediately after the door was opened and before the dog could have advanced on John.
' In admitting the taped confession of James the court stated:
. . The Court has found two cases that are appropriately in point; one, United States vs. D. Barry, 448 — strike that — 487 F 2d 48, and more appropriate and more recent is the United States ex rel Stanbridge vs. Selker, 514 F 2d 45. By combining the testimony of the defendant John with the taped statement of the defendant James, it’s fairly clear to this Court that what has been called the interlocking confession doctrine is totally applicable, which would allow admission of the taped statement as against both defendants. The substance of both the testimony of John and the tape of James is the same, and the Court notes in the two cases that no two confessions are exactly alike, as I note here that these are not exactly alike, but they are substantially the same and their admission is proper.
“Additionally, I think it’s appropriate rebuttal because there are, without enumerating them, portions of the tape that are contrary to the defense evidence on the defendants’ case in chief, and the tape will therefore be admitted.
“Objections by both defendants are overruled. It’s simply an exception to Bruten, and .Bruten is not in point.” '
In this ruling we believe the court committed reversible error. The so-called “interlocking confession” doctrine is not an exception to the Bruton rule. The cases which have been decided subsequent to Bruton have consistently pointed out that a limiting instruction must be given to the jury and that the jury can consider each confession only as against the confessor, thus limiting its impact. In the present case no limiting instruction was given. The trial court admitted the taped statement as against both defendants.
In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. Where the evidence of guilt is of such direct and overwhelming nature that it can be said the erroneous admission of certain other evidence could not have affected the result of the trial, such admission is harmless error. (State v. Thompson, supra.)
It would appear that the admission of the statement of James had an adverse effect upon John’s theory of defense and when coupled with the refusal of the trial court to give a limiting instruction we cannot say the error is harmless.
The state cites State v. Greer, 202 Kan. 212, 447 P.2d 837 (1968), as supporting the admission of the statement of James Sullivan. In Greer one of the defendants adopted the confession of a codefendant by an admission to the officers. In the opinion the court states:
“. . . This consisted of the testimony of the investigating officer, the clear import of which was that the officer played Bobbie’s confession to appellant, appellant admitted orally her [Bobbie’s] version was correct except as to the weapon; that appellant stated be ‘had not used a weapon to strike him with. That he had only used his fist to strike the man with when he obtained his money’; then, according to the officer’s testimony, appellant gave a tape-recorded statement admitting his part in the robbery. Appellant heard Bobbie’s statement and, with an exception not here material, he verbally assented to and adopted it; the statement became his own and was thus admissible in evidence against him.” (p. 214.)
The admission of the statement in Greer did not fall within the Bruton rule. The statement was adopted by and became the statement of the person against whom it was offered. It was admitted into evidence under the provisions of K.S.A. 60-460(h), which reads as follows:
“As against a party, a statement ... of which the party with knowledge of the content thereof has, by words or other conduct, manifested his or her adoption or belief in its truth;”
The case does not support the state’s position in the present case. The judgment and conviction of John for murder in the first degree must be reversed and remanded for a new trial.
The next point to be considered affects the appeal of both John and James. The trial court refused the defendants’ requests to instruct the jury on the lesser included offense of involuntary manslaughter. James was responsible for the conduct of John if he intentionally aided or advised John in the commission of a crime. (State v. Jackson, 201 Kan. 795, 799, 443 P.2d 279 [1968], cert. den. 394 U.S. 908, 22 L.Ed.2d 219, 89 S.Ct. 1019 [1969]; State v. Neil, 203 Kan. 473, 474, 454 P.2d 136 [1969].)
Involuntary manslaughter is a lesser included offense of first degree murder. (State v. Seelke, 221 Kan. 672, Syl. ¶ 1, 561 P.2d 869 [1977].) The statute setting out the elements of involuntary manslaughter states:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.” (K.S.A. 21-3404.)
Counsel objected at trial because the involuntary manslaughter instruction was not being given. The court replied:
“I have tried my best to construe these facts in a manner which would find that a verdict of involuntary manslaughter could be upheld, and I simply am unable to do it, period. We had an informal conference in chambers this morning for about an hour and a half during which we discussed nothing but involuntary man slaughter. Additionally, I worked on the problem for about an hour over the noon hour. I am firmly of the conviction that if defendants’ testimony is believed, they are not guilty, and that is all there is to it. There was no unlawful act as contemplated by the involuntary manslaughter statute committed by the defendants or supported by the evidence. They violated no statute or ordinance which was passed for the protection of human elements or safety, not amounting to a felony. As far as lawful acts are concerned, in an unlawful or wanton manner, if this thing happened the way the defendant says it happened, then it wasn’t done in a wanton manner, period, it was done with reasonable care. And in that event, the defendants are just flat not guilty.”
K.S.A. 21-3107(3) requires the trial court to instruct on a lesser included offense when there is evidence introduced to support a conviction of the lesser offense. This court has held the duty to instruct on a lesser offense arises only when there is evidence upon which the accused- might reasonably be convicted of the lesser offense. (State v. Seelke, supra.) Failure to instruct the jury on some lesser degree of the crime charged is not grounds for reversal if the evidence at trial excludes a theory of guilt on the lesser offense. (State v. Lora, 213 Kan. 184, 515 P.2d 1086 [1973].) The evidence of a lesser offense need not be extensive nor strong as long as the evidence presents circumstances from which such lesser offense might reasonably be inferred. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient. (State v. Clark, 218 Kan. 18, 21, 542 P.2d 291 [1975], cert. den. 426 U.S. 939, 49 L.Ed.2d 392, 96 S.Ct. 2657 [1976]. See also State v. Burrow & Dohlmar, 221 Kan. 745, 748, 561 P.2d 864 [1977].)
Here defendants argue the jury could have found the defendants had not yet attempted to enter the house and thus were not guilty of attempted burglary. Therefore, they could only have been committing “an unlawful act not amounting to felony,” i.e., trespass. Or, they urge, the jury could have found defendants were committing a lawful act — protecting themselves from the dogs — in an unlawful or wanton manner. Whether the shooting is intentional is immaterial; what controls is whether the killing was unintentional. (State v. Gregory, 218 Kan. 180, 184, 542 P.2d 1051 [1975].)
There is merit in defendants’ argument. We do not agree with the judge that defendants were guilty of first degree murder or not guilty of anything. If the jury found defendants had gone to burglarize the farmhouse but had not yet committed the necessary overt act to make it attempted burglary they had committed only trespass. In such case the jury could find defendants guilty of involuntary manslaughter.
The state argues that the defendants went to the home of Randy Moore to commit a burglary and were involved in the commission of a felony. In State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), it is said:
“Normally, a trial court is required to give a full range of lesser included offense instructions; however, when a murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. [Citations omitted.] If a murder is committed during the perpetration of a felony, the felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. [Citations omitted.]” (p. 731.)
An exception to the foregoing rule applies when the evidence of the underlying felony is weak or inconclusive. (State v. Rueckert, supra.) In State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976), this court states:
“We find the following cogent comment in 41 C.J.S. Homicide § 392 c, pp. 210, 211:
“ ‘It is held or stated that ordinarily, in a felony murder case, the court must charge the various degrees of homicide and may properly refuse to do so when, and only when, no possible view of the facts would justify any other verdict than a conviction of murder in the first degree or an acquittal.’ ” (p. 343.)
There was no evidence in this case to support a finding by the jury that either of the defendants entered any part of the house. The occupants of the house hid in the attic after the shooting. They testified they heard the back screen door slam. There was no evidence the defendants entered the porch or slammed the door. The occupants speculated it might have been caused by the defendants, the wind or the dog. This testimony would not support a charge of burglary. So the evidence of the underlying crime necessary to prove a felony murder charge could support no more than an attempted burglary.
If the homicide did occur during the perpetration of an attempted burglary the defendants are guilty of felony murder regardless of whether the killing was unintentional. (See State v. Branch and Bussey, 223 Kan. 381, 382-383, 573 P.2d 1041 [1978].) Thus, the trial court in refusing the involuntary manslaughter instruction had to find as a matter of law the evidence established that defendants had committed an attempted burglary and the evidence would admit of no other conclusion.
The attempt statute, K.S.A. 21-3301(1), provides:
“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
This court has held to prove an attempt to commit a crime an overt act toward the consummation of the crime must be established in addition to intent:
“. . . The overt act necessary must extend beyond mere preparations made by the accused and must approach sufficiently near to consummation of the offense to stand either as the first or some subsequent step in a direct movement toward the completed offense.” (State v. Gobin, 216 Kan. 278, Syl. ¶ 3, 531 P.2d 16, 76 A.L.R.3d 832 [1975].)
At page 281 of the Gobin opinion the court quotes from the comments to the committee to PIK Crim. 55.01:
“ ‘. . . On the one hand mere acts of preparation are insufficient while, on the other, if the accused has performed the final act necessary for the completion of the crime, he could be prosecuted for the crime intended and not for an attempt. The overt act lies somewhere between these two extremes and each case must depend upon its own particular facts. . . .’ ”
The court in Gobin further states:
“. . . The accused must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he intends to commit. It is sometimes said there must be some appreciable fragment of the crime committed. . . .” (p. 281.)
In State v. Gobin, supra, this court held mere presence at the scene with a truck equipped with stock racks did not necessarily establish the overt act toward perpetration of a theft of pigs. In our present case the underlying felony claimed was an attempted burglary of a farmhouse. “Burglary is knowingly and without authority entering into or remaining within any building, . . . with intent to commit a felony or theft therein.” (K.S.A. 21-3715.) The defendants did not attempt to enter the farmhouse so the state had to rely on something other than that to prove some overt act towards perpetration of the burglary. Applying what is said in State v. Rueckert, supra, and State v. Bradford, supra, to the facts of the present case we cannot say that the evidence of the underlying felony was so compelling that there was no possible way a jury could find the state had failed to prove the overt act to complete the crime of attempted burglary. We hold the trial court erred in refusing to instruct the jury on involuntary manslaughter. The convictions of "both John and James must be reversed and the case remanded for a new trial.
Several additional points raised by the appellants are of such nature that they will probably arise in a second trial of this case. We will discuss these briefly.
It is argued the court erred in admitting a hunting knife into evidence at the trial. The knife was carried by James on his person when he made the trip to the farm residence. It was obtained by the police from a residence where James and his girl friend, Stacey Steffy, were living. They were living with Stacey’s father, William Steffy. Detective Howard obtained Stacey’s consent and signature on a form waiving the requirement of a search warrant. The knife in question was obtained when Detective Howard searched the residence, including the bedroom occupied by James and Stacey.
When two or more persons jointly occupy living quarters the consent of one of them is sufficient to form a basis for a valid search. (State v. Jakeway, 221 Kan. 142, 558 P.2d 113 [1976]. See also State v. Boyle, 207 Kan. 833, 486 P.2d 849 [1971].) We note in the present case the witness to the seizure was not endorsed on the information and no motion to suppress was made before trial as required by K.S.A. 22-3216(3); however, the effect of these matters will not be discussed since such procedural matters may be taken care of before a retrial of the case.
The appellants contend that Pat Benefield was an incompetent witness because he had participated in the crime and was under threat of being charged. It is further argued that his testimony should not have been admitted because he was a delinquent minor placed under jurisdiction of the juvenile court.
The effect of granting immunity to a witness who participated in the crime bears upon the weight and credibility to be given his testimony. Such a witness is not incompetent to testify. (State v. Wheeler, 215 Kan. 94, 99-100, 523 P.2d 722 [1974]; State v. Montanez, 215 Kan. 67, 523 P.2d 410 [1974].) The trial court properly exercised its discretion in allowing Pat Benefield to testify. He was of sufficient age and his testimony did contradict and rebut testimony given by defense witnesses. (Jacks v. Cloughley, 203 Kan. 699, Syl. ¶ 1, 457 P.2d 175 [1969].)
It is argued the trial court erred in refusing to allow John’s employer to testify as to John’s good character. The statute, K.S.A. 60-446, authorizes the defendant to introduce evidence of good character. It reads:
“When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.”
K.S.A. 60-447 provides, if a character trait is relevant, evidence of specific instances which tend to prove the trait may be introduced in a criminal action if offered by the accused to prove innocence. K.S.A. 60-448 relates to traits of care and skill and is inapplicable in the present case.
The state argues the testimony was offered in support of defendant’s credibility and properly excluded as not bearing on truth and veracity. The record indicates that appellant John was attempting to introduce evidence of his good character and it was error for the trial court to sustain the state’s objection to this evidence. It is not necessary for us to determine whether the error was harmless since a new trial is necessary on other grounds.
It is argued the trial court erred in failing to properly instruct the jury on the elements necessary to establish first degree murder under the felony murder rule. The trial court instructed the jury that to prove felony murder it was not necessary for the state to prove that the killing was malicious and willful with deliberation and premeditation. This is in accord with what is said in State v. Goodseal, 220 Kan. 487, 491, 553 P.2d 279 (1976); and State v. Clark, 204 Kan. 38, 43, 44, 460 P.2d 586 (1969). See also PIK Crim.1975 Supp. 56.02 for the standard instruction on felony murder.
The appellants also objected at trial to the court’s instruction No. 12 which was as follows:
“Under Kansas law, the circumstances in this case are such that the defendants cannot claim the defense of self-defense, and you will not consider this as a defense.”
On appeal they argue the court erroneously destroyed their defense by giving such an instruction. They point out that their version of the incident was that they were withdrawing at the time the shots were fired; that no overt act toward a burglary had been completed; that John believed himself to be in imminent danger from the attack of a vicious trained guard dog; and that he fired at the dog, not knowing the victim and Randy Moore were in the line of fire. The trial court before giving the instruction commented that the law is such that a person cannot create the circumstances that would make it necessary for him to commit homicide and rely on self-defense. The question raised by the appellants is not without difficulty in this case.
K.S.A. 21-3211 provides:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
Under K.S.A. 21-3214 the use of force is not available to a person and he has no right of defense if he is attempting or committing a forcible felony, or is escaping after committing it. A person has no right of defense if he initially provokes the use of force against himself, unless he has reasonable ground to believe he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of such force as is likely to cause death or great bodily harm to the assailant.
Our statute, K.S.A. 21-3214, was modeled after Ill. Ann. Stat. ch. 38, § 7-4. In The People v. Sullivan, 345 Ill. 87, 177 N.E. 733 (1931), it is said a burglar rifling a safe who is confronted by the owner with a drawn revolver has no right to shoot the owner because his life is in imminent danger if he does not, and a robber whose command, “Hands up!” is answered by a shot from his victim’s pocket has no right to kill the latter to save his own life. See also People v. Gates, 47 Ill. App. 3d 109, 5 Ill. Dec. 486, 361 N.E.2d 809 (1977).
The difficulty in instructing against self-defense in the present case arises from the sharp conflict in the two versions of what happened. It is a jury quéstion whether there was a completed crime or a thwarted intent, unless the evidence is so conclusive as to preclude submission of one in favor of the other. (State v. Awad, 214 Kan. 499, 520 P.2d 1281 [1974].) If the jury should find, as it did in entering a verdict of felony murder in the case, that the defendants had committed the necessary overt act and were guilty of an attempted burglary, then the shooting occurred while escaping therefrom and a claim of self-defense was not available to them. However, when the instructions were given it was possible the jury might find no overt act had been committed. In such case the defendants had not proceeded beyond the stage of intent and preparation for burglary. The defendants are entitled to an instruction on their theory of the case even though the evidence introduced thereon is slight and supported only by defendants’ own testimony. (State v. Smith, 161 Kan. 230, 167 P.2d 594 [1946]; State v. Schoenberger, 216 Kan. 464, 532 P.2d 1085 [1975].)
It is true the deceased was not personally the alleged aggressor, the dog was. However, where a third person is killed unintentionally, if the circumstances would excuse the killing of the assailant the unintentional killing of another may also be excused. (40 Am. Jur. 2d, Homicide, § 144, p. 432.) The problem here is that the instruction given by the court took from the jury the decision as to whether the defendants had completed the necessary overt act and attempted the burglary.
On a new trial under similar facts it would appear to be the better practice to allow the jury to determine if the overt act had been committed. If the defendants were guilty of the crime of attempted burglary self-defense was not available to them. In such case the defendants were not justified in the use of force against the threat of an assailant whether it be a guard dog or a person.
Various other points have been raised concerning procedural matters such as failure to comply with a discovery order, claimed errors in the admission and exclusion of testimony, restriction on cross-examination, improper comments by the prosecutor in front of a juror outside the courtroom, exclusion of five of fourteen pictures of the scene of the homicide, restriction of defense counsel in his closing statement and failure of the court to respond to questions by the jury. These matters rest largely in the discretion of the trial court. No abuse of discretion appears in the record as to these matters and further comment is unnecessary.
The judgments on the convictions of both defendants are reversed; the sentences are set aside, and the case is remanded for a new trial.
Miller, J., concurs in the result. | [
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The opinion of the court was delivered by
Fromme, J.:
Beverly J. Nelson was convicted of aggravated assault with a deadly weapon (K.S.A. 21-3410[a]). Her victim was James Smith, with whom she had been living. At the trial Henry R. Salmans, a police officer, described the action. He heard a shot while on patrol and saw the defendant standing in the intersection of the 1100 block of East Murdock in Wichita. The defendant was firing a revolver at a passing car being driven by James Smith. There was a woman riding in the car with Smith. The car traveled past the intersection and stopped about a half block away. Smith got out of the car and started walking toward the defendant. The officer began approaching the defendant from the opposite direction. The defendant fired a fourth shot in Smith’s direction. Smith and the officer converged on the woman. Smith arrived first and, in the course of wrestling the gun away from her, a fifth shot was fired into the pavement. Smith obtained the gun and handed it to the officer. The first three shots struck the side of the car in which Smith and the lady were riding. Defendant was arrested at the scene. She was hysterical and screamed that she was in love with Smith but was going to kill him. She did not want Smith to run around with another woman. The charge of aggravated assault was filed and a trial to a jury followed.
James Smith was subpoenaed as a witness but failed to appear when the case was tried. Defendant was found guilty. The conviction rests entirely on the testimony of the police officer, Salmans.
On appeal the defendant-appellant contends it was error to deny her motions for acquittal and' for directed verdict. This contention is based on an alleged lack of evidence to prove that defendant’s conduct resulted in James Smith being placed in immediate apprehension of bodily harm. He did not testify at trial. His actions as described by the officer indicated a lack of fear for his own safety, in that he advanced toward the defendant and wrestled the gun from her hand.
Appellant cites State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), in which this court held the state must prove the victim was placed in apprehension of bodily harm. In Warbritton the victim consistently denied on the stand that she had any fear for herself, even though the defendant had pointed a gun at her in a threatening manner. A divided court held the state had failed to establish a required element of the crime, i.e., that defendant’s conduct resulted in the victim being in immediate apprehension of bodily harm.
In Warbritton no shots were fired and the victim testified she had no fear of bodily harm. The facts in Warbritton are distinguishable from those in the present case. In the present case three shots were fired into the car as it was being driven by James Smith. One shot was fired in his direction as he advanced toward the defendant and another was fired into the pavement. James Smith did not testify at the trial. There can be little doubt an attempt to do bodily harm was coupled with the apparent ability to injure Smith. Even though the defendant fired wide of the mark on all five occasions we believe questions as to her intention and his fear of bodily harm were properly left to the jury. See State v. Clanton, 219 Kan. 531, 548 P.2d 768 (1976), and Gornick v. United States, 320 F.2d 325 (10th Cir. 1963). The elements necessary to establish a crime may be proved by circumstantial evidence. See State v. Wilkins, 215 Kan. 145, Syl. ¶ 4, 523 P.2d 728 (1974), and State v. Colbert, 221 Kan. 203, Syl. ¶ 2, 557 P.2d 1235 (1976). The motions for acquittal and for directed verdict were properly overruled in accordance with the rules set forth in State v. Wilson & Wentworth, 221 Kan. 359, Syl. ¶ 2, 559 P.2d 374 (1977).
The appellant next contends the trial court erred in failing to instruct the jury on all elements required to establish the aggravated assault. We find merit in this contention.
A simple assault is defined in K.S.A. 21-3408 as follows:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
A simple assault is a lesser included offense of aggravated assault with a deadly weapon. (State v. Werkowski, 220 Kan. 648, 652, 556 P.2d 420 [1976]; State v. Warbritton, supra.)
Aggravated assault with a deadly weapon is defined in K.S.A. 21-3410(a) as follows:
“Aggravated assault is:
“(a) Unlawfully assaulting or striking at another with a deadly weapon; . . .”
All elements required to prove a simple assault must necessarily be included in the elements of the greater offense of aggravated assault.
To establish the charge of aggravated assault with a deadly weapon in this case, each of the following claims had to be proved:
1. That the defendant intentionally attempted to do bodily harm to James Smith;
2. That she had apparent ability to cause such bodily harm;
3. That defendant’s conduct resulted in James Smith being in immediate apprehension of bodily harm;
4. That the defendant used a deadly weapon; and
5. That this act occurred on or about the 23rd day of September, 1976, in Sedgwick County, Kansas.
See K.S.A. 21-3408, K.S.A. 21-3410, and PIK (Crim.) 56.14.
Over the objection of the defendant the trial court gave the following instruction on the elements necessary to prove the charge:
“The defendant in this case is accused of the offense commonly known as Aggravated Assault. The elements of this offense are as follows:
“(1) That the defendant, Beverly J. Nelson, on or about the 23rd day of September, 1976, within this county and state;
“(2) Unlawfully and willfully assaulted and struck at another, namely James Smith;
“(3) With a deadly weapon, namely a .38 caliber revolver.
“To this offense the defendant has entered a plea of not guilty.”
The defendant’s attorney specifically requested that the trial court give the elements instruction appearing in PIK (Crim.) 56.14. He pointed out that the court’s instruction failed to require the state to prove “the defendant’s conduct resulted in James Smith being in immediate apprehension of bodily harm.” The court refused to change the elements instruction.
On appeal the state cites State v. Wilson, 215 Kan. 437, 524 P.2d 224 (1974), and insists the alleged omission was supplied in the subsequent instruction given to define the word “assault”. All instructions are to be considered in their entirety.
A definition of the word “assault” did appear in the court’s Instruction No. 7 which reads:
“The intent with which an act is committed is a mental state of the actor and, therefore, direct proof of intent is not required. Intent is generally derived from and established by the attendant facts and circumstances shown by the evidence.
“The word ‘unlawfully’ means without authorization of law.
“ ‘Willful’ ordinarily means intentional, as distinguished from accidental or involuntary. The terms ‘knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘willful.’
“An ‘assault’ is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.
“There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.”
It is true that the elements omitted from Instruction No. 2 were included in defining the word “assault”. However, we feel the jury might well have been misled as to the elements necessary to prove the crime. The possibility is too great to approve the court’s instructions. The definitions instruction was separated from the elements instruction by four intervening instructions: (No. 3) An explanation of the use and purpose of the complaint or information, (No. 4) the burden of proof on the state to establish the elements of the offense, (No. 5) an explanation of the meaning of guilt beyond a reasonable doubt, and (No. 6) an instruction as to defendant’s right not to testify in her own behalf. In addition the definition of an “assault” was only one of five definitions in- eluded in Instruction No. 7. A person with a trained legal mind might well have succeeded in drawing the missing elements from the definition of the word “assault” which appeared later in the instructions. We doubt if an ordinary lay person could reasonably be expected to do so. The possibility of prejudice to the defendant is even greater in this case because proof of one of the omitted elements depended entirely on circumstantial evidence. The jury might well have had some doubt as to the proof of that element. The defendant is entitled to a new trial on this point.
The final point raised by appellant concerns the constitutionality of K.S.A. 1977 Supp. 21-4618 which provides for a mandatory term of imprisonment for Article 34 crimes in which the defendant used a firearm in the commission thereof. The constitutional attack is threefold: (1) Cruel and unusual punishment, (2) violation of equal protection, and (3) lack of due process because the statute restricts the judicial power of the sentencing judge.
These three constitutional questions were raised and disposed of in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). We hold in Freeman the provisions of K.S.A. 1977 Supp. 21-4618 are not constitutionally impermissible for the reasons urged by this appellant. We adhere to what was said in Freeman. The point is without merit.
The judgment is reversed because of the error in the court’s instructions and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action to recover damages for personal injuries sustained in a collision between an automobile and a utility pole after the driver lost control of his car as the result of striking two chuckholes in a township road. The plaintiff, James Thomas, a minor, brought this action through his father and natural guardian, Eldon L. Thomas, against the Board of Township Trustees of Salem Township and the Board of County Commissioners of Sedgwick County for defects in the maintenance of the road and against the Kansas Gas and Electric Company for negligent placement of the utility pole. The case proceeded to trial and, at the close of the plaintiff’s evidence, the trial court granted motions for a directed verdict in favor of Sedgwick county and Kansas Gas and Electric Company. The case was then submitted to the jury on the basis of the comparative fault of plaintiff and Salem Township.
The jury by its special verdict found that the accident was the fault of both the plaintiff and Salem Township, with forty-nine percent of the fault attributable to the plaintiff, James, and fifty-one percent attributable to the defendant township. Plaintiff’s damages were determined to be in the total amount of $7500. The district court entered judgment in the amount of $3825 based upon the special verdict of the jury. Salem Township appeals from the judgment entered in favor of the plaintiff and also from the order of the trial court sustaining the motions for directed verdict of the defendant Sedgwick county. The plaintiff cross-appeals from the orders sustaining the motions for directed verdicts filed by Sedgwick county and the Kansas Gas and Electric Company.
The collision in this case occurred on the afternoon of September 8, 1974. Plaintiff was driving east along a sand and gravel road in Salem Township, Sedgwick County, Kansas. As the vehicle approached a bridge, the front wheels of the car struck two chuckholes, causing the plaintiff to be bounced out of the driver’s seat and causing him to hit his head on the sun visor. Plaintiff lost control of the car; it then proceeded across the bridge, crashing into a utility pole on the opposite side. The evidence showed that the bridge was constructed so that two steel plates on the surface of the bridge allowed a single lane of traffic to proceed across the bridge. The chuckholes were located at the west end of the bridge at a point where the steel plates abutted the roadway. The bridge was not exactly in alignment with the roadway and was much narrower than the roadway. The utility pole which was used by Kansas Gas and Electric Company was located 133 feet east of the bridge and six feet north of the roadway. There were no traffic signs warning of a narrow bridge or rough roadway surface conditions.
The chuckholes were apparently caused by water runoff, since the ground on both sides of the road was higher than the roadway itself, causing water to collect in the roadway. The lack of drainage caused the chuckholes to form at the point where the steel plates came in contact with the unpaved road. Several witnesses testified concerning the size of the holes. According to the testimony the chuckholes were eighteen to twenty-two inches in diameter and three to six inches deep.
As a result of the collision, the plaintiff suffered bone fractures and serious dental injuries. This action was brought to recover damages against defendant Salem Township in Sedgwick county under K.S.A. 68-301, which provides in pertinent part as follows:
“68-301. Recovery of damages from county or township; notice of defects; action against two or more counties or townships. Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert or highway which by law, or agreement entered into pursuant to law, the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
Plaintiff’s theory of recovery, as stated in the pretrial order, was that Salem Township was liable for defects in the roadway which consisted of the following: (1) Potholes four to six inches deep and nineteen to twenty inches in diameter at the west end of the bridge; (2) improper alignment of the roadway with the bridge; and (3) no warning or reduced-speed signs. With respect to Sedgwick county, the plaintiff’s theory was that defendant allowed the following defects to exist: (1) Bridge placement being off center by approximately one-half the width of the road; (2) steel traffic plates being loose and bent; and (3) no warning or reduced-speed signs. Plaintiff’s theory as to defendant Kansas Gas and Electric Company was that it was negligent in placing the utility pole so close to the roadway as to be a traffic hazard. The defendants contended that the collision was the result of the plaintiff’s own negligence in failing to keep a proper lookout, in driving at an excessive speed, in driving left of center, and in failing to use his seat belts.
As its first point, Salem Township contends that the plaintiff’s evidence was not sufficient to establish a “defect” in the highway as required by K.S.A. 68-301. Whether the condition of a highway constitutes a “defect” so as to render a county or township liable for damages under K.S.A. 68-301 is a question of law in the first instance, to be determined by the court on a case-by-case basis. Where circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law, it presents a proper case for a jury to determine. See Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972), construing K.S.A. 68-419, a similar statute which governs liability for defects in a state highway.
In the present case the evidence established that the chuckholes were directly in line with the steel travel plates on the bridge, making the chuckholes unavoidable by any vehicle attempting to cross the bridge. The speed of plaintiff’s vehicle was estimated at thirty miles per hour. The holes were not visible to the plaintiff as he approached the bridge. The size of the holes were estimated at eighteen to twenty-two inches in diameter with a depth of three to six inches. The holes were large enough for the large dual wheels of the local school bus to fall into and had been a problem for six to seven years prior to the collision. Although the holes were filled in periodically, they would reappear quickly. In light of the size of the holes, their ineffective repair, their direct alignment with the steel travel plates, and the inability of drivers to see the holes in time to reduce their speed, we have concluded that whether the chuckholes constituted a defect within the purview of K.S.A.,68-301 was an issue of fact to be determined by the jury.
Salem Township also maintains that there was not sufficient notice of the defect given to the township trustee as required by K.S.A. 68-301. The statute requires that recovery may be had from the township where the trustee of such township shall have had at least five days’ notice of the defect prior to the time the damage was sustained. There was evidence presented at the trial that the holes in the road had existed for six or seven years prior to the collision. Two witnesses who lived in the area had discussed this condition with the township trustee at the scene six months prior to the collision and had also discussed the condition with the same trustee on many other occasions. The township road maintainer had been asked to increase his efforts to smooth out the holes not long before the accident. Mr. Lawless, the township trustee, testified that he traveled the road quite frequently himself, that he had been advised that the road needed repair on the west end of the bridge, and that the problem extended two or three feet from the bridge. We find this evidence sufficient to satisfy the statutory requirement that the township trustee had notice of the defect at least five days prior to the time plaintiff’s injuries occurred.
The defendant township raises a number of other points which challenge the sufficiency of the evidence to support the special verdict of the jury finding that the defect in the township road was the cause of plaintiff’s injuries. The township quarrels with the percentage of fault attributed to the respective parties. The township further challenges the correctness of the instructions given by the court defining what constitutes a defective highway. We have carefully reviewed the evidence and find that the special verdict of the jury is supported by the evidence. We also have concluded that the instructions, as given, fairly define the issues presented in the case.
The township next maintains that it was entitled to judgment as a matter of law, since the jury found the plaintiff James to be negligent in the operation of his motor vehicle and that forty-nine percent of the total fault for the accident was attributable to the negligence of plaintiff. The thrust of the township’s position is that the plaintiff, having been found contributorily negligent, was barred as a matter of law from recovering in any action brought pursuant to K.S.A. 68-301. In support of its position, the township emphasizes the language of 68-301 which states in substance that any person who shall, without contributing negligence on his part, sustain damage by reason of any defective highway may recover such damage from the township. This contention raises an important question involving the application of the comparative negligence statute, K.S.A. 60-258a, to actions based upon highway defects brought under K.S.A. 68-301. In support of its position, counsel for the township argues that 60-258a is applicable only to actions brought on the theory of negligence and that actions brought under K.S.A. 68-301 are based not upon a theory of negligence, but upon failure of the township to conform to the statutory requirements for the construction and maintenance of a highway imposed by 68-301. Hence, it is argued, comparative negligence is not applicable in highway defect actions brought under 68-301.
The highway defect statutes, both K.S.A. 68-301 and 68-419, have long been interpreted as based upon the theory of strict statutory liability rather than upon a theory of common-law negligence. In Lungstrum v. State Highway Commission, 177 Kan. 57, 276 P.2d 346 (1954), it is stated in syllabus 4:
“Liability of the state under . . . 68-419 is not based on the general doctrine of negligence but is purely statutory. Negligence of the state in and of itself does not establish liability and proof of its due care is no defense if a defect actually exists. The only provision pertaining to negligence is that it requires a plaintiff to be free from negligence contributing to the accident.”
See also Payne v. State Highway Comm., 136 Kan. 561, 563, 16 P.2d 509 (1932) and Arnold v. Coffey County Comm’rs., 131 Kan. 343, 291 Pac. 762 (1930). In Arnold the court stated that liability is determined by the result accomplished rather than by the diligence exercised:
“. . . [I]n an action of this character, the simple question is: Was the bridge, culvert or highway defective? The question of how much or how little care had been exercised by the responsible county officials in the construction or maintenance of the bridge, culvert or highway in question is of but little or no consequence. If the result of their efforts is a defective bridge, culvert or highway, such defect makes the county liable if the other elements of liability are present. . . .” (p. 346.)
These cases, and a number of other cases taking a similar position, were decided long before the enactment of the comparative negligence statute, K.S.A. 60-258a, in 1974. K.S.A. 60-258a provides in pertinent part as follows:
“60-258a. Contributory negligence as bar to recovery in civil actions abolished, when; award of damages based on comparative negligence; imputation of negligence, when; special verdicts and findings; joinder of parties; proportioned liability, (a) The contributory negligence of any party in a civil action shall not bar such party . . . from recovering damages for negligence ... if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, . . .”
The highway defect statute, 68-301, was originally passed in 1887. It was revised in 1923 to include the words “culvert or highway” in order to conform to prior decisions of this court. In 1947 the statute was revised once again, with changes in the language of the statute relating to liability for maintenance, persons who must have notice of the defect, and suits for defects in bridges, roads, or culverts maintained by more than one county or township. It is necessary for us to determine the impact of K.S.A. 60-258a on K.S.A. 68-301. It is a well-recognized rule of statutory construction that old statutes must be read in the light of later legislative enactments. The older statute must be harmonized with the newer; if a conflict exists, the older must be subordinated to the newer. (In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073 [1917].) Where there appears to be a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phrase of the subject, the specific statute will be favored over the general statute and controls. (State v. Kliewer, 210 Kan. 820, 504 P.2d 580 [1972].) In considering the relationship between the two statutes we must, of course, look to the intent of the legislature.
The same basic issue has been determined by the Supreme Court of Wisconsin. In Morley v. Reedsburg, 211 Wis. 504, 248 N.W. 431 (1933), the question was raised whether the Wisconsin comparative negligence statute should be applied to an action brought under the Wisconsin statute establishing liability for injuries caused by a defect in a highway. The defendant in Morley contended that the Wisconsin comparative negligence act was not applicable and that any contributory negligence whatsoever on the part of the plaintiff would entirely defeat his recovery. The defendant, in support of his position, argued that the Wisconsin comparative negligence statute was applicable only when the negligence of the defendant was the basis of the plaintiff’s action and that an action to recover damages based on a highway defect did not rest upon negligence, but rather upon liability imposed by statute. The Supreme Court of Wisconsin rejected this argument, reasoning that the legal consequence of imposing liability upon municipalities for highway defects was simply to make the existence of a highway defect negligence as a matter of law in the same way that failure to comply with a safety statute constitutes negligence as a matter of law. The Wisconsin Supreme Court held the Wisconsin comparative negligence statute applicable.
The issue came again before the Wisconsin Supreme Court in Trobaugh v. Milwaukee, 265 Wis. 475, 61 N.W.2d 866 (1953). There a pedestrian brought an action against the city for injuries sustained in a fall on the sidewalk allegedly defective because of the accumulation of snow and ice. One of the questions raised in the case was whether the Wisconsin comparative negligence law was applicable to a cause of action based upon a statute which made a municipality liable for injuries suffered by reason of an accumulation of snow or ice on a highway where the accumulation existed for three weeks. The Wisconsin Supreme Court relied upon Morley and held that an action against the city based upon the statutory liability was, in legal contemplation, an action for negligence and within the application of the comparative negligence statute. In a later Wisconsin case, Nelson v. Hansen, 10 Wis. 2d 107, 102 N.W.2d 251 (1960), the plaintiff brought an action based upon a Wisconsin statute which imposed strict liability on the owner of a dog. The statute deprived the dog of the first-bite defense recognized in most states and the owner’s liability was stated in absolute terms, namely, “the owner shall be liable to the person so injured. . . .” The question was raised as to whether contributory negligence would bar recovery or whether the comparative negligence statute was to be applied. The Wisconsin Supreme Court held that the contributory negligence of the plaintiff was subject to the comparative negligence statute.
We have concluded that the rationale of the Wisconsin cases is sound. Although a number of Kansas cases have stated that, in an action brought under 68-301 to recover damages against a township or county for injuries resulting from a defective highway, the question of the negligence of the township or county is not material, in legal contemplation this simply means that, once a defect in a highway has been established, negligence exists as a matter of law and the only remaining issue to be determined as to liability is the contributory negligence of the plaintiff who suffered injuries from the defect.
There are many cases in Kansas which hold that the violation of a specific requirement of law contained in a statute or ordinance constitutes negligence per se. See for example Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 320 P.2d 1061 (1958); Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971). The concept that a defect in a highway constitutes negligence per se is recognized in Cunningham v. Clay Township, 69 Kan. 373, 377, 76 Pac. 907 (1904). That case involved an action against a township for damages occasioned by the runaway of a team of mules, caused by their fright of a stone on the roadway. The action was based upon the statute enacted in 1887 making the township liable for defects in the highway. The statute was the forerunner of K.S.A. 68-301. In discussing the statute, the court said on page 377 of the opinion:
. .The liability of the township is founded upon neglect of the duty to keep the highway in repair. But instead of the general requirement of ordinary diligence in the discharge of such duty the statute substitutes a specific test. When injury is sustained by reason of a defective highway, if the township trustee has had five days’ notice of the defect the township is liable, however great care the officers may have exercised; but if the trustee has had no such notice the township is not liable, however negligent the officers may have been. The statute makes its own definition of actionable negligence. . . .”
“Under these authorities the township is under the absolute duty of seeing that the highway is kept in reasonably good condition for travel — free from defects, but the question of what constitutes a defect is to be determined by the jury in view of all the circumstances of the case, so that the township is protected against immoderate requirements. Its liability is determined by the results accomplished rather than by the diligence exercised. . . .” (pp. 377, 378.) (Emphasis supplied.)
K.S.A. 68-301 establishes a strict liability against a county or township in the event an actual defect exists in the highway. It is a concept based upon negligence per se arising from the failure of the township or county to maintain the highway in a condition safe for travel. K.S.A. 60-258a has adopted, as the policy of the state, the rule that the contributory negligence of an injured party shall not bar him from recovery but shall only serve to reduce his recovery based upon the comparative fault of all parties involved. We have concluded that the comparative negligence statute should be applied in actions brought under K.S.A. 68-301 to recover damages for injuries sustained as the result of highway defects. The conclusion which we have reached is also that stated by the committee on Pattern Jury Instructions of the Kansas Judicial Council in its comment under PIK 2d (Civil) 19.03:
“A question is raised as to the applicability of comparative negligence when a statute creating liability on a governmental unit specifically provides that the law of contributory negligence is controlling.
“The conclusion of the Committee is that inasmuch as the comparative negligence statute, K.S.A. 60-258a, is a later statute, comparative negligence, rather than contributory negligence, would apply in suits where the defendant is a governmental unit if the cause of action accrues after July 1, 1974. The comparative negligence statute by its terms is applicable in all negligence cases, and the conclusion of the Committee is that allowing defects to exist constitutes negligent conduct.”
The defendant township next claims that the trial court erred in instructing the jury as to the legal effect of its answers to the special verdicts. Instruction No. 11, as given by the court, was based upon PIK 2d (Civil) 20.01, Comparative Negligence — Theory and Effect, and stated as follows:
“Instruction No. 11
“This case must be determined on the basis of comparative fault of the parties. In deciding the case you will need to know the meaning of the terms “negligence” and “fault.”
“Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing.
“As standards of ordinary care certain duties are imposed by law. It is for you to decide from the evidence whether or not any of the following duties imposed by law apply in this case and whether or not any have been violated. The violation of a duty is negligence.
“It is the duty of Salem Township to keep its roadways reasonably safe for travelers using the roadway.
“The duty of the Township to keep its roadways reasonably safe for travelers does not require it to guard the traveling public from such normal hazards as ordinary rough, uneven or bumpy sand and gravel roads, but where the bumps or chuck holes are so wide or deep as to constitute an unsafe and dangerous condition, not reasonably to be anticipated by users of the highway, the Township has the duty to eliminate the hazard or to warn the public of its presence. However, in order to render the Township liable for injuries resulting from a dangerous chuck hole or pothole in the roadway, the Township Trustee must have had notice or knowledge of the condition for a sufficient length of time to have taken precautions to guard against the injury and for a period of at least five (5) days.
“A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which claim is made.
“It will be necessary for you to determine the percentage of fault of the parties. It also will be necessary for you to determine the amount of damages sustained by any party claiming damages.
“The laws of Kansas applicable to this case require me to reduce the amount of damages you have awarded to any party by the percentage of fault that you find.is attributable to that party.
“A party will be entitled to recover damages if his fault is less than 50% of the total fault of all parties. A party will not be entitled to recover damages, however, if his fault is 50% or more.”
Specifically, the township’s complaint is directed toward the last two paragraphs of the instruction. Defendant argues that the giving of these two paragraphs advising the jury as to the legal effect of its special verdict was prejudicial error. Defendant cites Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089 (1971), which holds that the design of the special verdict procedure is to obtain answers to questions of fact with the knowledge of the jury limited as to whether its findings will favor one side or the other. Defendant also relies on Hubbard v. Havlik, 213 Kan. 594, 518 P.2d 352 (1974), which states that the purpose of special questions to the jury is to ferret out the various facts separately in order to enable the court to apply the law and to guard against misapplication of the law by the jury. Defendant maintains that when the final two paragraphs of the instruction are given, they essentially convert what was a special verdict proceeding back into a general verdict deliberation.
The issue presented has caused a great deal of controversy in the various states which have adopted comparative negligence. The highest appellate courts of Arkansas, Colorado, and Wisconsin have held that the jury should not be informed of the effect of its percentage apportionment of fault as between the parties to the action. (Argo v. Blackshear, 242 Ark. 817, 416 S.W.2d 314 [1967]; Mutual Auto Ins. Co. v. State Farm Mut. Auto. Ins. Co., 286 Wis. 6, 66 N.W.2d 697 [1954]; Avery v. Wadlington, 186 Colo. 158, 526 P.2d 295 [1974].) Subsequent to the decision in Avery v. Wadlington, supra, the Colorado legislature in 1976 enacted § 13-21-111 (4) C.R.S. 1973 (1976 Cum. Supp.) which made it incumbent upon the trial court in a comparative negligence case to instruct the jury on the effect of its finding as to the degree of negligence of each party. That statute effectively overruled the holding of the Colorado Supreme Court in Avery. (See Loup-Miller v. Brauer & Assoc. — Rocky Mountain, 572 P.2d 845 [Colo. App. 1977]; and Appelgren v. Agri Chem, Inc., 562 P.2d 766 [Colo. App. 1977].)
Minnesota, by a rule of civil procedure (Minn. R. Civ. P. 4901), provides that, in actions involving its comparative negligence statute (Minn. Stat. § 604.01 [1971]), the court shall inform the jury of the effect of its answers to the percentage of negligence question and shall permit counsel to comment thereon, unless the court is of the opinion that doubtful or unresolved questions of law, or complex issues of law or fact are involved, which may render such instruction or comment erroneous, misleading, or confusing to the jury. It should be noted that while this rule of civil procedure is restricted to comparative negligence actions, the Minnesota legislature, prior to the revision, enacted a broader statute which allows the jury to be similarly informed in all civil actions. (Minn. Stat. § 546.14 [1971].) Texas, by statute, did not go quite as far as Minnesota, but it nonetheless allows the jury to be indirectly informed as to the legal effects of its answers. (Tex. R. Civ. P. 277.) For a discussion of the Texas procedure, see Cadena, Comparative Negligence and the Special Verdict, 5 St. Mary’s L.J. 688 (1974). Oklahoma also permits the judge to instruct the jury as to the effect of its findings under that state’s comparative negligence statute. (Smith v. Gizzi, 564 P.2d 1009 [Okla. 1977].)
The wide difference of opinion on this subject is manifested by judicial opinions with dissenting justices and numerous law review articles both for and against informing the jury of the legal effect of its answers to the special questions in comparative negligence cases. (See Smith, Comparative Negligence Problems with the Special Verdict: Informing the Jury of the Legal Effects of Their Answers, 10 Land & Water L. Rev. 199 [1975]; Guinn, The Jury System and Special Verdicts, 2 St. Mary’s L.J. 175 [1970]; Wright, The Use of Special Verdicts in Federal Court, 38 F.R.D. 199, 200, note 10 [1966]; Flynn, Comparative Negligence: The Debate, 8 TRIAL May/June 1972, at 49; Brown, Federal Special Verdicts: The Doubt Eliminator, 44 F.R.D. 338 [1968]; Note, Informing the Jury of the Legal Effect of Its Answers to Special Verdicts, 43 Minn. L. Rev. 823 [1959]; Denton, Informing A Jury of the Legal Effect of Its Answers, 2 St. Mary’s L.J. 1 [1970]; Note, Informing the Jury of the Effect of Its Answers to Special Verdict Questions — The Minnesota Experience, 58 Minn. L. Rev. 903 [1974]; Pierce, Informing the Jury of the Legal Effect of Its Answers to Special Verdict Questions Under Kansas Comparative Negligence Law — A Reply to the Masses; A Case for the Minority View, 16 Washburn L. J. 114 [1976].) The rationale behind the rule which prohibits informing the jury of the legal effect of its answers is that, if the jury does not know the legal effect of its findings, its determination will be logical and the defendant will be protected against verdicts based on sympathy rather than the facts. Critics of the rule point to at least three reasons why it should not be followed indiscriminately: (1) It is a senseless practice, since an intelligent juror will in most cases already have a good idea of what effect his answers will have on the ultimate verdict; (2) adherence to the rule can and has led juries to speculate unnecessarily as to the meaning of the law, resulting in mistaken verdicts that do not reflect the true intent of the jury; (3) the rule is an unwarranted intrusion on the traditional role of the jury to temper harsh rules of law and see that substantial justice is done between the parties.
Whether to permit the jury to be informed as to the legal effect of its answers in a comparative negligence case is essentially a policy decision. We have considered the pros and cons and have concluded that it is not error for a trial court in this state to inform the jury as to the legal effect of its answers in a comparative negligence case, where a general instruction is given informing the jury of the theory and legal effect of comparative negligence as is done in PIK 2d (Civil) 20.01. We believe the better rule should be one based not on distrust of juries, but rather one which recognizes that jurors collectively represent the conscience of the community and will do their best to follow the law as contained in the instructions of the court. It seems to us that, as a matter of policy, it is better to have the trial judge explain the operation of the law to the jury rather than to permit the jury to speculate as to the effect of its findings in a comparative negligence case. The rule which forbids the jury to be informed of the legal effect of its answers assumes that a jury should not concern itself with the practical effect of its apportionment of negligence and that a jury will operate more effectively in a vacuum. In our judgment, the rule ignores the reality that jurors often do concern themselves with the practical effects of their findings, and without being informed by the court, will undoubtedly speculate as to the result of their verdict. Under the Kansas comparative negligence statute, if a jury finds that the defendant and plaintiff are equally at fault, the plaintiff recovers nothing. Expecting the defendant to recover fifty percent of his damages, the unknowing jury may insure that he receives nothing. Furthermore, we believe that there is a real danger of a jury taking it upon itself to decrease the damage award by the percentage of plaintiff’s negligence unless it is informed that the required reduction is a statutory duty of the trial court. Confusion in this regard has been pointed out by one author writing of the experiences of the state of Maine under its special verdict procedure. (Nixon, The Actual Legislative Intent Behind New Hampshire’s Comparative Negligence Statute, N.H.B.J. 27, 29 [Fall, 1969].)
Comparative negligence is new to Kansas. We have not yet had extensive experience with jury trials in comparative negligence cases. If experience shows that justice has been subverted by the adoption of the rule which permits the trial court to inform the jury of the legal effect of its answers in a comparative negligence case, we will not hesitate to change the rule. We hold in this case that the trial court did not err in giving Instruction No. 11 set forth in full above.
The only two remaining points raised on the appeal and cross-appeal concern the orders of the trial court granting the motions of Sedgwick county and Kansas Gas and Electric Company for a directed verdict. As to Sedgwick county, we agree with the trial court that there was no evidence presented in the case to show that any defect in the bridge caused the accident which resulted in the plaintiff’s injuries. The defect was in the road, not in the bridge. We, likewise, hold that the trial court did not err in sustaining the motion for a directed verdict filed by Kansas Gas and Electric Company. There was no showing by the plaintiff that the placement of the utility pole was negligent or in violation of any statutory duty or standard. The trial court was correct in directing a verdict for defendant Kansas Gas and Electric Company.
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The opinion of the court was delivered by
MILLER, J.:
This is a direct appeal by Hiram Sanders from his conviction by a jury of murder in the second degree of Thomas Furlow, K.S.A. 21-3402, and aggravated battery of Vonya Hodge, K.S.A. 21-3414. The defendant was sentenced to terms of not less than 45 years nor more than life for the murder, and not less than 15 nor more than 60 years for the aggravated battery, the sentences to run concurrently with each other, but consecutively to other sentences which he was serving at the time these sentences were imposed.
Defendant raises eight points which we will discuss later in this opinion.
Concisely, the evidence discloses that on Friday evening, November 19, 1976, the victims, Thomas Furlow, 28 years old, and Vonya Hodge, 18 years old, went for a drive in Kansas City, Kansas. They had been dating for some time. They stopped at several places, including an apartment where Thomas “shot up” heroin. Shortly after midnight, in the early hours of November 20, Thomas and Vonya returned to the apartment where they had been earlier in the evening. Thomas went in, and Vonya waited in the car. She was seated on the passenger side. Thomas returned in about 15 minutes.
As Thomas approached, Vonya heard shots and saw Thomas fall near the rear of the car. The defendant, Hiram Sanders, then came around the car, opened the door on the driver’s side, and shot Vonya twice. She was struck in the hip and in the shoulder. As soon as Sanders left, Vonya slid over and drove the car to her home; her brother took her to the hospital.
Thomas Furlow’s body was found the next day near the scene of the shooting. A .22-caliber bullet was removed from Thomas’s body by a pathologist, and another .22-caliber bullet was removed by a surgeon from Vonya Hodge’s hip joint. A ballistics expert testified that in his opinion both bullets were fired from the same gun. Sanders was seen running after Thomas shortly before the shooting. Vonya identified Sanders as the person who shot her.
The first point raised is that the trial court erred in overruling defendant’s motion to dismiss for the reason that the state failed to bring him to trial prior to the expiration of 90 days, contrary to K.S.A. 1977 Supp. 22-3402. Sanders was arraigned on January 21, 1977; thereafter he was in custody continuously until trial commenced 108 days later, on May 9.
K.S.A. 1977 Supp. 22-3402 reads 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).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless 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:
“(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.”
This section, originally enacted as a part of the Code of Crimi nal Procedure which became effective in 1970, was first construed in State v. Davis, 209 Kan. 225, 495 P.2d 965 (1972). Chief Justice Fatzer, speaking for the court, said:
“. . . The new act was intended to provide for the just determination of every criminal proceeding, and is to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (K.S.A. 1971 Supp. 22-2103.) Section 22-3402 contains a new definition of the term ‘speedy trial,’ as used in Section 10 of the Bill of Rights of the Kansas Constitution. The purpose of the statute is to implement the constitutional guaranty of speedy trial. The new definition shortened the limitations for trial and are expressed in days after arraignment, rather than court terms after the filing of the indictment or information. . . .” (p. 227.)
And see, also, State v. Sanders, 209 Kan. 231, 233, 495 P.2d 1023 (1972).
The first subparagraph of the act is designed to provide trial within 90 days for persons held in custody only because of the pending charge. The second subparagraph applies to persons who are admitted to bond, and is inapplicable here.
Sanders was not held in custody solely because of the charges of murder and aggravated assault; between the time of arraignment and trial he was in custody by virtue of lengthy sentences imposed upon him for other felonies, unlawful possession of a weapon, aggravated battery, and aggravated battery of a law enforcement officer, as well as three concurrent one-year sentences for misdemeanor offenses. The first subparagraph of K.S.A. 1977 Supp. 22-3402, therefore, is inapplicable. One who is in custody, serving one or more sentences, is not being held “solely” by reason of a pending charge, and it is not required that trial on the pending charge be commenced within the 90-day period specified by the statute. However, such person is entitled to a speedy trial; that right is guaranteed by § 10 of the Bill of Rights. Trial was held within a reasonable time, and well within the time allotted for trial of those on bond. Sanders has not alleged that his defense was hindered or affected adversely by reason of the passage of time, and we find no prejudice.
Further, it appears that the trial court’s calendar was congested, and the trial date was fixed by the court some 30 days in advance, and before 90 days had elapsed after arraignment. One continuance of 30 days beyond the original 90-day period may be ordered by the trial court when, because of other cases pending, the court does not have sufficient time to commence the trial of the case at hand. K.S.A. 1977 Supp. 22-3402(3)(d). At any rate, trial was held promptly within the constitutional mandate, and we find no error.
Defendant’s second claim of error is that Patricia Noram should not have been allowed to testify because she was not properly endorsed on the information as a prosecution witness. Her name was there shown as Patricia Norman. Her correct street address and telephone number were listed. Patricia Noram was listed correctly as a witness on the original complaint. Defense counsel discovered her true name, and was advised how to get in touch with her, several days before she testified. Defendant’s rights were not prejudiced, and the trial court did not abuse its discretion in permitting her to testify.
Defendant’s third point is that the trial court erred in failing to instruct on lesser degrees of homicide, voluntary manslaughter and involuntary manslaughter, and on simple battery of Vonya Hodge. The latter has not been briefed or argued, and is deemed abandoned.
The trial court is charged with the duty of instructing the jury not only as to the crime charged, but also as to all lesser crimes of which the accused might be found guilty under the information and upon the evidence. K.S.A. 21-3107. The information charged Sanders with homicide, murder in the first degree, and the court instructed on both first and second degree murder; the jury convicted defendant of the latter. The two degrees of manslaughter are, of course, lesser degrees of homicide.
Voluntary manslaughter is the unlawful killing of a human being, without malice, which is done intentionally “upon a sudden quarrel or in the heat of passion.” The only evidence supportive of defendant’s contention that voluntary manslaughter should have been instructed upon is the testimony of Patricia Noram, who lived in a first-floor apartment in the building near which the homicide occurred. She testified that there was a lot of noise at the back of the building, in the parking lot — screaming and banging and some glass breaking. The witness was in bed; she got up, telephoned an operator to call the police, and then looked outside. She saw four people run by — Thomas Furlow, Vonya Hodge, Hiram Sanders, and another man. Seconds later she heard shots; she counted eight of them. The defense was alibi, and the defendant’s evidence did not bear upon the degree of homicide.
There was no evidence that the deceased and the defendant quarreled; no evidence that the quarrel was sufficient to cause the defendant to act on impulse without reflection; no evidence that the defendant was provoked; and no evidence upon which the jury could find that the defendant acted in the heat of passion. We have discussed sudden quarrel and heat of passion in recent cases, and need not repeat what we said there. State v. Ritchey, 223 Kan. 99, 573 P.2d 973 (1977); State v. Coop, 223 Kan. 302, 573 P.2d 1017 (1978). But it is clear that there was no evidence before the jury in this case which would tend to establish the elements of voluntary manslaughter.
Likewise, there was no evidence that the killing was unintentional, and thus the involuntary manslaughter statute does not apply. We conclude that the trial court did not err in refusing to give the requested instructions on manslaughter.
As his fourth point, the defendant contends that the verdict should have been set aside because it was against the law and the evidence. The gist of this argument is that the testimony of Vonya Hodge should not have been believed. The defendant argues the credibility of the witness. That was a question for determination by the jury. The issue here 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. Berry, 223 Kan. 566, 575 P.2d 543 (1978). There is no merit to this contention.
As point five, defendant contends that the trial court erred in not instructing the jury to reject or to regard with caution the testimony of Vonya Hodge. The court gave the jury the customary instruction on credibility of witnesses, combining PIK Crim. 52.09 and PIK Civ. 2.20. The court also included the substance of PIK Civ. 2.24, relating to willful false testimony. The instructions given adequately covered the matter; to single out the testimony of one witness, as defendant suggests, would be for the court to inject itself into argument, which is properly left to counsel, and into a determination of the weight and credit of the testimony, which is properly a jury function. See State v. Lee, 221 Kan. 109, 112, 558 P.2d 1096 (1976). The court did not err in the instructions given.
Sixth, defendant contends that the trial court erred in not compelling Herbert Horton to testify. Horton had previously given a statement to the prosecutor. He had been cooperative, and had been interviewed by defense counsel. A conference was held in chambers immediately before Horton was to testify during trial. Horton’s attorney advised counsel and the court that Horton would refuse to answer any question about the substance of this case on the ground that his answers might tend to incriminate him. In chambers, defense counsel suggested that he be allowed to read Horton’s earlier statement. Horton stated that he gave the statement, but it was not a true statement and was not accurate. Defense counsel then said:
“Mr. PETERSON: Your Honor, we would like this: If the jury would be recalled, I would ask Mr. Horton his name and his address and then at that time Mr. Asner can interrupt and can be put on the record in front of the jury that Mr. Horton is refusing to testify on the ground he might incriminate himself.”
This procedure was followed. When trial resumed before the jury, Horton was called as a defense witness, gave his name, and objected to answering any questions about the case on Fifth Amendment grounds. The court then said, “I don’t see any reason to hold him here further”; defense counsel said, “No”; and the witness was excused.
Defendant now argues that it was error to excuse the witness, and that he should have been compelled to testify as to those matters he had previously discussed with defense counsel and the prosecutor; and that he had waived his Fifth Amendment privilege as to the subject matter of those interviews, pursuant to K.S.A. 60-437. This was not argued during the trial; Horton was excused without any request being made to the court to require him to testify on the basis of waiver.
K.S.A. 22-3417 reads in part as follows:
“. . . It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”
The defendant did not make known to the court the action which he now says he desired; and he did not object to the witness’s being excused. Whether as a matter of trial strategy or otherwise, the witness was presented to the jury as a defense witness for the sole purpose of having him assert his constitutional privilege. No effort was made to compel his testimony. Absent a presentation of the matters and an assertion of defendant’s contentions during trial, we will not review them on appeal. The oft-repeated rule is, an issue not presented to the trial court cannot be a subject for appellate review. State v. Osbey, 213 Kan. 564, 568, 517 P.2d 141 (1973).
The seventh point raised is that the court erred in refusing to receive into evidence the written and sworn statement of Herbert Horton, taken earlier by the district attorney. Defendant contends that once Horton took the Fifth Amendment and refused to testify, he was “unavailable as a witness” within the meaning of K.S.A. 60-459(g)(l), and therefore the statement was admissible under K.S.A. 60-460(a) and (c). These statutes read as follows:
K.S.A. 60-459. Definitions. “As used in K.S.A. 60-460, its exceptions and in this section:
“(g) ‘Unavailable as a witness’ includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant . . .”
K.S.A. 60-460. Hearsay evidence excluded, exceptions. “Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness;
“(c) Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered, or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when (i) the testimony is offered against a party who offered it in his or her own behalf on the former occasion, or against the successor in interest of such party, or (ii) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face;”
The substance of the trial court’s ruling was that the witness was not available for cross-examination, and that the statement was wholly hearsay, in that Horton had no personal knowledge, but related only what a third party, James Doss, had told him, and therefore the content of the statement would not be admissible if made by Horton while testifying.
The statement was not a deposition taken for use in this trial; it was not testimony given in another action, or in a preliminary hearing or a former trial in the same action; and it was not a deposition taken for use in the trial of another action. The statement did not come within the exceptions provided by K.S.A. 60-460(c).
In chambers, Horton repudiated the statement, at least in part, saying that it was not totally accurate and truthful. Obviously, though the district attorney took the statement, the state would wish to examine the witness further. Horton, however, was not available for cross-examination. The statement itself was a recitation of statements allegedly made by Doss to Horton. Although Doss was physically present in the courtroom pursuant to a subpoena, neither party called him to testify, and- there was no showing that he was available as a witness. In light of the statements attributed to him by Horton, Doss could well have refused to testify on Fifth Amendment grounds.
We conclude that the trial court was correct in its ruling, and that the statement of Horton was inadmissible under K.S.A. 60-460(a) as well as 60-460(c).
Defendant’s eighth and final point is that the trial court erred in admitting a Kansas City, Kansas, Police Department fingerprint card into evidence at the sentencing hearing. The court admitted certified copies of two journal entries and fingerprint cards from the Kansas State Penitentiary, and a fingerprint card from the Identification Bureau of the Kansas City, Kansas, Police Department. The director of that bureau testified that the latter card bore the fingerprints of the defendant, taken on March 26, 1976, and retained in the regular course of business; and that all three sets of fingerprints were made by the same person. The journal entries reflect that Sanders was previously convicted of voluntary manslaughter, burglary in the second degree, and larceny, all in the District Court of Wyandotte County, and was sentenced to the Kansas State Penitentiary in each instance.
Defendant’s objection to the police department card is that the fingerprints thereon were not taken by or in the presence of the witness. The prints were taken and the card retained in the usual course of business by the Identification Bureau.
The principal case relied upon by the defendant, State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967) is easily distinguished. There, an uncertified photographic copy of a blood alcohol test report, received from the State Board of Health’s laboratory by a Highway Patrol trooper, was admitted in evidence by the trial court upon the trooper’s testimony alone. We reversed, holding that the report was not a “business record” of the trooper’s office; that it was specially prepared by the laboratory in anticipation of litigation; and that it was error for the trial court to admit the document without proper foundation, i.e., the testimony of a witness who could identify the report and explain methods and procedures used in its production.
Fingerprint cards, unlike laboratory reports of sophisticated chemical or spectrographic analyses, do not require an explanation of methods and procedures used; the taking of fingerprints is commonplace. The card in question was not prepared in anticipation of litigation; it was but one of thousands of such cards maintained by the police department.
We conclude that the card was admissible in evidence under the business records exception to the hearsay rule, K.S.A. 60-460(m).
Finding no error, we affirm the judgment. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an original action in mandamus filed in this court pursuant to Article 3, Section 3 of the Constitution of the State of Kansas and K.S.A. 60-801, et seq. We accepted jurisdiction.
The State Board of Tax Appeals was granted leave to file an amicus curiae brief and the State of Kansas was granted leave to enter an appearance by and through the Attorney General for and on behalf of the Director of Accounts and Reports.
The facts are not in dispute.
Plaintiff, Cities Service Oil Company, filed this action against the Board of County Commissioners of Rice County, Kansas, and the County Treasurer of Rice County, Kansas, seeking an order directing the County Treasurer to refund ad valorem taxes paid under protest by Cities Service.
Plaintiff paid ad valorém taxes for 1974 on production from certain oil and gas leases in Rice County, Kansas, and at the same time filed a written statement of protest together with an application for a hearing before the State Board of Tax Appeals as required by K.S.A. 79-2005.
No questions are raised about the procedural aspects of plaintiff’s payment of the taxes and the subsequent proceedings before the Board. The Board, after a proper hearing, issued an order reducing by 15% the 1974 appraised valuation of the plaintiff’s production from certain oil and gas leases and ordered the Rice County Treasurer to recompute the plaintiff’s 1974 tax liability and refund any excess taxes paid by plaintiff.
The order of the Board provided, in part:
“It is, therefore, by the majority of the members of the State Board of Tax Appeals of the State of Kansas, considered and ordered that the officials of Rice County, Kansas, reduce the 1974 appraised valuation on the protestant oil production excluding equipment by 15%. The Rice County Treasurer is ordered and directed to recompute the protestant’s 1974 tax liability following the adjustments hereinbefore ordered by the Board. If all of the 1974 taxes were previously paid, then the Rice County Treasurer is ordered and directed to refund to the protestant forthwith any excess taxes collected prior to the adjustment hereinbefore ordered by this Board. . . .” (emphasis added)
In effect, the County Treasurer was directed to reduce the assessed valuation of plaintiff’s production by 15%, recompute the 1974 ad valorem taxes paid by plaintiff and make an appropriate refund of the amount of overpayment. The total amount to be refunded was $1,034.00.
Plaintiff made demand on defendant Jean Williams as County Treasurer for refund of the protested taxes and on or about September 22, 1976, defendants issued a check in the sum of $284.56 to Cities Service, leaving a balance of $749.44 unpaid. Defendants refused to refund the additional amount alleging plaintiff’s tax payments had already been disbursed to other taxing districts and only the share of the county in the sum of $284.56 could be refunded by the county. Plaintiff contends it is the duty of the defendants to refund the full amount and to make appropriate adjustments with the other taxing districts which received a portion of the original protested taxes paid by plaintiff.
On the individual leases involved in this appeal, the shares of the various taxing districts other than Rice County, Kansas, ranged from $0.09 to $307.62 and included:
South Central Kansas Library Systems;
Unified School District #401;
Unified School District #444;
Unified School District #328;
Rice County Rural Fire Department;
Upper Little Arkansas River Watershed Joint District #95;
Victoria Township;
Kansas Center Cemetery;
Pioneer Township; and
Center Township.
These taxing districts have indicated a willingness to make the appropriate refund to plaintiff, upon demand, and three of them have actually tendered checks to Cities Service. Cities Service is holding those checks along with the one from the county pending the outcome of this action. In addition to the foregoing local taxing districts, a portion of the protested taxes subject to refund was paid or credited to the Director of Accounts and Reports of the State of Kansas, for the Kansas Educational Building Fund and the State Institutions Building Fund.
It is the position of plaintiff that, having paid its taxes in full to the County Treasurer of Rice County, Kansas, the overpayment as determined by the State Board of Tax Appeals should be refunded in toto by the Rice County Treasurer.
Defendants assert K.S.A. 1975 Supp. 79-2005 limits the refund by the county to that portion of the protested taxes retained by the county and further that it is plaintiff’s obligation to look to the other taxing districts for a refund of each district’s proportionate share of the overpayment. The Board, in its brief amicus curiae, and the State of Kansas take the position, along with plaintiff, that the entire refund should be made by the county and the county should then make appropriate adjustments with the individual taxing districts and the State.
We agree with plaintiff’s position.
The principal issue in this case is the proper application of K.S.A. 79-2005, when considered with other statutes, the orders issued by the Board and certain administrative procedures adopted by the Department of Administration. Prior to 1971, 79-2005 directed the county treasurer in the event of payment of taxes under protest to impound in a separate fund the taxes which were protested. In certain instances, this was felt to work a hardship on the individual taxing districts and in 1971 the statute was amended twice to provide, among other things, that the county treasurer disburse the taxes protested without impounding any portion thereof. The first 1971 amendment provided the county treasurer should make the refund of successfully protested taxes and the second 1971 amendment provided the state or governing body of the taxing district should make the refund. The statute was again amended in 1974 and now appears as K.S.A. 79-2005. Insofar as this appeal is concerned the statute provides, with reference to refunds, as follows:
“No action shall be brought or maintainable in any court for the recovery of any taxes paid under protest unless the same is commenced within thirty (30) days after the filing of such protest with the county treasurer, or, in case application shall have been filed with the board as hereinbefore set out, unless the same is commenced within thirty (30) days after the date the board mailed its order on such protest to such taxpayer. In the event no such action is commenced within such thirty-day period, the county treasurer, state or governing body of the taxing district, any portion of the levies of which are protested shall, if the taxpayer is entitled to the refund of any such taxes paid under protest, as soon thereafter as reasonably practicable, cause said tax money to be refunded to the taxpayer entitled to receive the same in accordance with the order of the board issued thereon; and if such order directs the refund of any taxes levied by the state which were paid under protest, the director of accounts and reports shall refund said tax moneys out of the fund or funds receiving the same by drawing his or her warrant on the state treasurer in favor of such taxpayer.
“Whenever any taxpayer shall be entitled to recover any taxes paid under protest, other than taxes levied by the state, the governing body of the taxing district or districts to which such tax moneys were disbursed shall, as soon as is reasonably practicable, provide for the refund thereof out of the fund or funds receiving the same. . . .” (emphasis added)
The Board, in its brief, asserts its position in relation to K.S.A. 79-2005 as follows:
“The relevant part of that statute provides, as concerns the manner in which this Board directs that a refund be made:
‘[T]he County Treasurer, State, or governing body of the taxing district . . . shall, . . . cause said tax money to be refunded to the taxpayer entitled to receive the same in accordance with the Order of the Board issued thereon; (emphasis provided).’
“Simply stated, if the Board directs all affected taxing districts to refund their pro rata share, so it shall be done upon directive of the Board. If the Board directs that the County, singularly, make the refund, so it shall be done upon directive of the Board.
“The trigger of the mechanism determining which taxing body or bodies shall make the refund is the Board’s Order.”
Under the provisions of K.S.A. 79-1411a the county is declared to be the governmental unit charged with the primary responsibility for the administration of all laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes, except as may be otherwise provided by law. These duties also imply that the county bear the primary responsibility for the refund of taxes paid under protest when they have been illegally or erroneously assessed and subsequently collected by the county. The taxpayer makes payment of one sum to the county and if it is determined that the taxpayer is legally entitled to a refund of all or a portion of such payment there is no reasonable basis for the taxpayer to be put to the inconvenience, time, expense, etc. of securing the refund in small portions from several different taxing districts. Under our system of law the function of government is to serve its citizens and wherever possible make the burdens on the public simpler rather than to compound them with unreasonable rules, regulations and red tape. All government officials, including the county treasurer, work for the public, not vice versa, although in this day and age the members of the general public probably find that hard to believe.
K.S.A. 79-2005 provides alternative procedures which may be utilized to effect the refund of taxes determined to be due the taxpayer. In a proper case it may be that the taxpayer is required to obtain the refund from the county, the individual taxing districts and the state rather than solely from the county. However, such a procedure should be avoided if at all possible. The statute makes both procedures available at the discretion of the Board.
The State Board of Tax Appeals is the highest administrative tribunal in the state and is charged with the ultimate authority, subject to judicial review in a proper case, in the administration of matters of assessment and valuation. Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, 522 P.2d 923 (1974). The determination of the method to be utilized in the refund of taxes paid under protest is a proper administrative function of the Board to be carried out according to its orders.
As a practical matter, the refund due plaintiff can be accomplished by the defendants without any great inconvenience to the defendants or the individual taxing districts. At any given time the county treasurer usually has on hand undistributed funds of the individual districts and the refund may be facilitated by the mere entry of accounting entries on their respective books. If there are not such funds available in the hands of the county treasurer the same are readily available from the taxing districts. We view this as a proper function of the county treasurer in carrying out the duties of the office.
Plaintiff in its brief cited Hodgins v. The Board of County Comm’rs,. 123 Kan. 246, 255 P. 46 (1927); Chicago, R.I.& P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P.2d 229 (1933); and Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P.2d 936 (1935) as authority that the county treasurer should make the refund. Defendants seek to distinguish those cases on the basis that in the cases cited by plaintiff the county officials made the erroneous or illegal assessment while in the present case that is not so. In the instant case the county officials followed the formulas and guides set forth in the assessment manual of the Director of Property Valuation. (K.S.A. 75-5105a and K.S.A. 79-1412a.) It was the Board of Tax Appeals which determined the manual prepared by the Director of Property Valuation did not establish a proper basis for the valuation and assessment in this case. The record reflects there was no erroneous or wrongful act by the Rice County officials in the original assessment and valuation of plaintiff’s production. We do not feel that the finding of fault in the improper assessment of the plaintiff’s property is a controlling factor in the determination of who should undertake the duty of making the refunds ordered by the Board.
What has been said about the refund of a portion of plaintiff’s taxes received by the individual taxing districts is equally true of that portion of the overpaid taxes which were distributed to the state. The Department of Administration has adopted an administrative procedure which allows the state’s share of the refund to be made by the county treasurer. The recommended administrative procedure is explained, in part, by the Director of Accounts and Reports in its pleadings:
“Upon issuance of an order showing that the taxpayer is entitled to a refund of any taxes paid under protest, the statute (K.S .A. 79-2005) provides that the State or governing body of the taxing district shall cause the tax money to be refunded to the taxpayer.
“Inasmuch as the taxpayer both originally paid his taxes and filed his notice of protest with the County Treasurer, it would seem likely that the taxpayer will look to the County Treasurer for the full amount of the refund which might have been subsequently ordered. Secondly, the County Treasurer is the only official that has records of payment, taxpayer by taxpayer, to verify that the taxes were actually paid. In the absence of such payment record, the State or some governmental subdivision by error could be required to refund taxes never actually received. Therefore, it is our position that the County Treasurer should handle all tax refunds.
“Since the County Treasurer collects and distributes the State levied taxes to the Educational Building Fund and the State Institutions Building Fund ledgers, the portion of any protested tax refund applicable to the state levy could be charged back against those ledger accounts. This would have the same effect on the State accounts as if the original tax monies had never been distributed. By using this procedure, the County Treasurer would be able to satisfy the taxpayer with the full refund as ordered. This would eliminate the taxpayer having to look to another governmental unit for a small portion of his refund.”
The foregoing procedure has been utilized throughout the state under the broad power and duties of the Director of Accounts and Reports and the Department of Administration to formulate a statewide system of centralized accounting and fiscal procedure. (K.S.A. 75-3728.) The fiscal procedure implemented by the Director for refunding protested tax money out of the local county “state fund” does follow the language of K.S.A. 79-2005 in that the refund is made “out of the fund or funds receiving the same. . . .”
In addition to an order directing the County Treasurer to make a refund of the entire amount of the overpayment of taxes, plaintiff seeks attorney fees and costs, pursuant to K.S.A. 60-802(c).
“Attorney fees in a mandamus action will be allowed only where the refusal of the public official, commission or board to perform the duty imposed by law was unreasonable under all the facts and circumstances.” Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, Syl. 7, 535 P.2d 889 (1975).
Considering the language of K.S.A. 79-2005, we cannot say the action of the defendants in the instant action was unreasonable.
We therefore conclude that a writ of mandamus should issue and the defendants are ordered and directed to forthwith refund the overpayment of taxes, including those distributed to other taxing districts and the state. Plaintiff’s petition for attorney fees is denied.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from a judgment of the district court in a garnishment proceeding denying the garnishment creditor’s claim to funds in a joint bank account. The principal action was brought by the plaintiff-appellant, Dr. Charles J. Purma, II, against the defendant-appellee, Patricia Stark, to recover damages for conversion of funds allegedly taken by the defendant from the plaintiff’s bank account during a period of time when the defendant was employed by the plaintiff. The plaintiff, Purma, obtained a judgment against defendant, Patricia Stark, in August of 1975 in the amount of $7,058.84 plus interest. In an attempt to collect this judgment, the plaintiff ran a garnishment on a joint checking account in the First State Bank of Leoti, Kansas, in January of 1976. This joint bank account stood in the names of Buddie Stark, Terry Stark, Larry Stark, and the defendant, Patricia Stark. Buddie Stark, Terry Stark, and Larry Stark intervened in the garnishment proceedings claiming that the debtor, Patricia Stark, had no beneficial interest in the joint bank account. After a full evidentiary hearing, the district court held that the defendant, Patricia Stark, had no equitable interest in the bank funds and denied the plaintiff’s claim to the funds.
Briefly stated, it was the claim of the intervenors that the joint bank account was the business account .of S & S Electric, a partnership consisting of Buddie Stark, Terry Stark, and Larry Stark. Patricia Stark was the wife of Buddie Stark. Terry and Larry Stark were their two sons. At the trial, Terry Stark testified that he had opened the partnership account in the First State Bank of Leoti and, at that time, told the bank teller that he wanted the bank account under the ownership of himself, his father, and his brother, but that they wanted to give his mother authority to sign checks. Terry stated that he authorized his mother to sign partnership checks because “it was much easier for her to take care of the check book and she could write a check for freight or material if we were out of town on a job. We ran our business out of the garage at my father’s house.” Buddie Stark testified that the partnership had authorized Patricia Stark to sign checks, not as a partner, but for freight bills or whatever bills had to be paid. Patricia Stark, on occasion, would write checks to pay the personal expenses of the Buddie Stark home and also to pay for Terry’s personal expenses. The testimony was undisputed that such expenses were listed in the partnership ledger as personal deductions and charged against the partner who incurred the expense. Although there was some evidence that Patricia Stark may have deposited wages received by her from Dr. Purma in the account as late as June of 1973, she had not received any income since that time. The testimony of the intervenors’ witnesses was to the effect that all funds deposited in the partnership account were derived solely from the business receipts of S & S Electric.
The trial court, in entering judgment in favor of the intervenors, made the following findings of fact and conclusions of law:
“1. That under the circumstances the burden of proof is upon the intervenors to show that Patricia Stark did not own any part of the account involved, was not a partner and had no beneficial interest in the account which was subject to garnishment.
“2. That Mrs. Stark did not own any part of the account involved, was not a partner, had no beneficial interest in the account and that such interest as she did have was the interest of a wife or mother, being allowed to draw family expense checks upon the account.
“3. That S & S Electric is artnership with the partners being Larry Stark, Terry Stark and Bud Stark.
“4. That the account which was established by Plaintiff’s Exhibit 1, the depositor’s contract and signature card, was not a joint tenancy account. That the depositor’s contract and signature card does not contain all of the magic words necessary to create a joint tenancy account under the laws of Kansas.
“5. That the plaintiff’s objection to the admission of oral evidence concerning the establishment of the account, intent of the parties, etc., should be overruled.
“6. That regardless of whether or not the account is a joint tenancy account or a tenancy in common that as a matter of law the only interest in the account which can be reached by garnishment is any interest actually owned in the account by Patricia Stark. In other words, regardless of the form of the account, Patricia Stark must actually own a beneficial interest in that account in order for it to be subject to garnishment for her debts. The creditor cannot reach any farther than the debtor could herself. Upon this evidence Patricia Stark in an action against the partnership could not have successfully claimed or recovered a beneficial interest. It follows that anyone attaching or garnisheeing her interest cannot reach any farther than she could.”
This case was determined by the district court prior to our decision in Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382 (1978), where the same basic issues of law were involved as are presented on the appeal in this case. That case held:
“1. The garnishment of a joint tenancy bank account severs the joint tenancy and the parties become tenants in common.
“2. There is a rebuttable presumption of equal ownership between tenants of joint tenancy property.
“3. The burden of proof on a claim the account is owned other than equally between the cotenants lies with the party asserting such claim.” (Syl. ff 1, 2, 3).
On this appeal the plaintiff contends that, under the bank depositors’ contract which named defendant Patricia Stark as one of the joint depositors, she was the absolute owner of the bank account as a matter of law and, therefore, all funds in the joint account were subject to garnishment for her debts. The intervenors maintain that only the debtor’s actual beneficial interest in the account is subject to garnishment. The plaintiff also takes the position that once the written depositors’ contract was proved, parol evidence was not admissible to establish the debtor’s interest in the joint bank account to be other than absolute ownership. Both of these points were determined adversely to the plaintiff’s position in Walnut Valley State Bank.
In this case the plaintiff complains that the trial court found the joint account created by the depositors’ contract and signature card not to be a joint tenancy account but rather a tenancy in common. We find no merit in this contention. The legal principles established in Walnut Valley State Bank are just as applicable to a bank account held in a tenancy in common as to one held in joint tenancy. In either case, the only interest in the account which can be reached by garnishment is the interest actually owned by the garnishment debtor.
The plaintiff further contends that there was no substantial competent evidence to support the trial court’s findings that Patricia Stark had no equitable interest in the joint bank account. We do not agree. The evidence in the case clearly showed that the joint account was set up as the business account of the S & S Electric partnership. The name of defendant, Patricia Stark, was placed on the account so that she might write checks on the account as a matter of convenience to pay partnership bills when the partners were out of the office at the time bills were presented. The trial court properly placed the burden of proof upon the intervenors to establish that Patricia Stark did not own any part of the joint account as required by our decision in Walnut Valley State Bank. In our judgment the intervenors sustained their burden of proof which required them to overcome the rebuttable presumption of equal ownership among the cotenants. The other points raised by the plaintiff in his brief involve the same basic issues discussed above.
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The opinion of the court was delivered by
Fromme, J.:
James E. Baker appeals from a jury conviction on a charge of felony murder (K.S.A. 21-3401). The conviction largely rests on circumstantial evidence. Appellant raises various points of error including insufficiency of the evidence to support the verdict.
The victim, Steve Burdolski, was discovered behind his desk in the Novotney Liquor Store in Kansas City, Kansas. He had been shot in the chest and was dead at the scene. The discovery was made at 9:45 p.m. on February 15, 1977. A short time prior to the discovery of the body, Linda Edwards had parked her car near this liquor store, preparatory to obtaining groceries in a nearby store. Before leaving her car she saw another car drive up and park to her left. The occupants got out of their car. The man on the passenger’s side walked past Mrs. Edwards as he headed in the direction of the liquor store. The man was identified by her at the trial as the appellant.
As Mrs. Edwards went into the grocery store she passed the victim, Steve Burdolski, as he was leaving to return to work. Shortly thereafter a third party came into the grocery store and advised those present, including Mrs. Edwards, that Mr. Burdolski had suffered a heart attack while at work in the liquor store. An ambulance was called. Some time later Mrs. Edwards learned that, instead of suffering a heart attack, Mr. Burdolski had been shot. She notified the police as to what she had witnessed.
The murder weapon was not found and no ballistics evidence was introduced at the trial. There was no fingerprint evidence introduced and the appellant made no statement or admission to the police. The evidence pointing to appellant’s participation in the crime largely consisted of his identification by Mrs. Edwards, together with the testimony of appellant’s former girl friend, Janice Hardenett.
At the preliminary hearing Ms. Hardenett testified she talked with the appellant the day after the man was killed in the liquor store, and the appellant told her he robbed the liquor store and shot the man. She further testified appellant told her he shot the man because the man gave him some static. Janice Hardenett was 16 years old. On cross-examination she retracted her previous testimony. After a brief recess the state rehabilitated its witness and Ms. Hardenett iterated her previous story concerning what the appellant had told her. She testified that she changed her story on cross-examination because she was afraid of the appellant.
The evidence to support the conviction in this case is not strong. However, appellant was identified as being in the vicinity just prior to the murder and this together with the testimony of Ms. Hardenett was sufficient to support the verdict under the rules governing our scope of appellate review. See State v. Soverns, 215 Kan. 775, 529 P.2d 181 (1974); and State v. Duncan, 221 Kan. 714, 562 P.2d 84 (1977).
The appellant contends the transcript of Ms. Hardenett’s testimony at the preliminary hearing should not have been admitted at the trial. The state had issued a subpoena for her to appear at the trial but she did not attend. When she failed to show up on the first day of the trial an investigator in the district attorney’s office located her in Houston, Texas. Although she indicated at that time she would come to Kansas City for the trial, later inquiries by the investigator failed to disclose her whereabouts. Before admitting her testimony in the preliminary hearing transcript the court held a hearing in chambers. The investigator was questioned and the court found the state had made a reasonable effort to secure her attendance and she was unavailable. The court found that all requirements of K.S.A. 60-460(c)(2) had been met. Her testimony had been taken at the preliminary hearing. The hearing was against this appellant, appellant’s attorney was present at that time, and he fully cross-examined the witness. Janice Hardenett’s testimony at the preliminary hearing was properly admitted at the trial. See State v. Washington, 206 Kan. 336, 338, 339, 479 P.2d 833 (1971); and State v. Alderdice, 221 Kan. 684, Syl. ¶ 1, 561 P.2d 845 (1977).
The appellant’s next point of error concerns the admission of certain testimony by Detective Orr. Over strenuous objection he was permitted to testify as follows:
“A. Well, after I established I had the right party, which Miss Hardenett was, she stated she was a girl friend of James ‘Shorty’ Baker, and that she had known him for a couple years and had been a girl friend for several months. She related to me that on the 16th, February 16th of 1977, ‘Shorty’ Baker had come to her home where she was staying with her grandmother on Perry Square, and that he had told her that he had shot a man in a liquor store in the west end of town, an older man, because the man, when he held him up and asked for the money, had given him some hassle and that he had shot him.”
The statements of the appellant Raker made to Ms. Hardenett were admissible under one of the exceptions to the hearsay rule when repeated on the witness stand by Ms. Hardenett. Such hearsay testimony is admissible under the following exception in K.S.A. 60-460, which reads:
“(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he or she said and did, . . .”
The testimony of Ms. Hardenett was admissible under this exception to the hearsay rule. It does not follow, however, that Detective Orr should be permitted to reinforce this testimony by repeating the alleged statements of the appellant. He was not present when the statements were made to Ms. Hardenett. The trial court erroneously permitted Detective Orr to testify as to the previous statement of the accused relative to the offense charged under the exception in subsection (a) of K.S.A. 60-460 which reads:
“(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness;”
The court apparently reasoned that Detective Orr could testify to any statement made by Ms. Hardenett in his presence since her testimony at the preliminary hearing was admissible. The court was in error for two apparent reasons, (1) Ms. Hardenett was not present at the trial as required by K.S.A. 60-460(a), and (2) the statement was that of the accused, not that of Ms. Hardenett. It is true that Ms. Hardenett had iterated the appellant’s previous statement to the detective, but when testified to by Detective Orr it was impermissible double hearsay.
This inadmissible testimony of Detective Orr and the testimony of Ms. Hardenett at the preliminary hearing formed the main foundation of the state’s case. It was error to admit Detective Orr’s double hearsay statements to support the prior testimony of Ms. Hardenett given at the preliminary hearing.
Appellant next asserts misconduct by certain members of the jury during the trial. From an affidavit of a juror it appears one of the jurors discussed the case with her husband and informed the jury during deliberations that her husband said the murder weapon could have been easily disposed of. Another juror overheard a statement at a bowling alley to the effect that the appellant had previously shot and killed another person. This was reported in the jury room. Another juror made an independent view of the scene of the crime and reported to the jury that the parking lot was well-lighted.
This affidavit cannot be located in the record. Such actions by jurors if they occurred have no place in the trial of a lawsuit and may well have resulted in prejudice to the appellant’s right to a fair trial.
Appellant’s next point concerns a limitation placed upon testimony elicited from one of appellant’s alibi witnesses. Prior to trial appellant listed the names of his alibi witnesses as required by K.S.A. 22-3218. At the trial appellant’s counsel attempted to elicit testimony from one of these witnesses concerning her knowledge of Ms. Hardenett’s reputation for truth and veracity in the community. The state objected to such questions because she was one of the persons “listed as alibi witnesses and that alone.” The court sustained the objection. Thereupon the following colloquy occurred:
“MR. BOYCE: May I ask the Court how I would be able to list a witness if she was qualified to testify to anything else? Would I have to go and list them twice?
“MR. SIEVE: That’s certainly the position of the state, Your Honor.
“THE COURT: I’ve ruled, gentlemen. I don’t think it’s necessary for me to make any further ruling.”
We know of no rule of law which disqualifies an alibi witness from testifying to other matters about which the witness has personal knowledge if the testimony is relevant to issues raised at the trial. No statute or case law is cited which would limit the testimony of an alibi witness to evidence bearing on alibi. The state was advised of the names of these witnesses. It was error to place such a restriction on appellant’s alibi witnesses. The credibility of Ms. Hardenett was crucial. The jury was not able to observe her demeanor for she did not testify in person. If her reputation for truth and veracity was bad, appellant should have been allowed to show this by way of impeachment.
Appellant next complains of the court’s refusal to allow a witness called by appellant to introduce jail-visitor records showing that Ms. Hardenett had voluntarily visited the appellant in jail subsequent to the preliminary hearing. Ms. Hardenett testified at the preliminary hearing that she was afraid of appellant and had been threatened by him over the phone. That was the reason she gave for changing her story during cross-examination. It would appear that the testimony was relevant for impeachment purposes and was admissible. However, at the time it was offered the appellant had rested his case and a request was made to reopen and introduce this testimony. The trial court refused the request because the name of the witness had not previously been disclosed as required by the pretrial order. Since the conviction must be reversed and a new trial granted because of the cumulative effect of other errors, we need not decide whether this amounted to an abuse of discretion by the trial court. On retrial the name of the witness, no doubt, will have been disclosed prior to trial.
Other points raised by appellant which will arise on a new trial and which we find to be without merit include the following:
(1) The refusal of the state to give the appellant a lie detector test, see State v. Blosser, 221 Kan. 59, 558 P.2d 105 (1976); State v. Roach, 223 Kan. 732, 576 P.2d 1082 (1978); and State v. McCarty, 224 Kan. 179, 578 P.2d 274 (1978);
(2) The refusal of the trial court to instruct the jury on second degree murder as a lesser offense of felony murder, see State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978), and cases cited therein at p. 384;
(3) The admission of testimony by Detective Orr concerning trips to the Missouri penitentiary to talk with an inmate;
(4) The admission of testimony by Detective Orr as to the misidentification of Jeffrey Barge by Mrs. Edwards; and
(5) The reference of the prosecutor in his final argument to a “fresh” scar on appellant’s forehead.
The appellant’s conviction is reversed and the case is remanded for a new trial because of the cumulative effect of trial errors which denied the appellant a fair trial. | [
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The opinion of the court was delivered by
Holmes, J.:
This case is before the court on a petition for review of a decision of the Court of Appeals. The original action in the trial court was for a determination of the distribution of the property of Robert Dean Shields, who died intestate of gunshot wounds inflicted by his wife, Victoria Ann Shields. Victoria was convicted of feloniously killing her husband. Victoria and Robert owned both real and personal property as joint tenants. The two children of the couple claim that by reason of K.S.A. 59-513, Victoria has no interest in any property in which Robert had an interest, including the property held in joint tenancy. Victoria claims she is the owner of one-half of the joint tenancy property and that if she is deprived of that ownership by K.S.A. 59-513, the statute contravenes Section 12 of the Bill of Rights of the Kansas Constitution.
The district court adopted the position of the children and held that Victoria succeeded to no interest in the joint tenancy property. The Court of Appeals reversed the judgment of the district court and held:
“When Victoria Shields murdered her husband and was subsequently con victed of second degree murder, the joint tenancy was severed and terminated and she became a tenant in common with the heirs of her husband. She retains an undivided one-half interest in the property. The lower court erred in depriving her of that interest.” In re Estate of Shields, 1 Kan. App.2d 688, 694, 574 P.2d 229.
We have carefully reviewed the record, including excellent briefs of the parties and amici curiae, and adhere to the opinion of the Court of Appeals.
The decision of the Court of Appeals is affirmed, the decision of the district court is reversed and the case is remanded to the district court for further proceedings consistent with the views set forth in the opinion of the Court of Appeals. | [
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The opinion of the court was delivered by
Prager, J.:
This is a review of a decision of the Court of Appeals affirming the district court in an unpublished opinion. The plaintiff-appellant, George Lollis, brought an action to recover damages for personal injuries sustained in a collision which occurred in Kansas City, Kansas, between a motorcycle driven by the plaintiff and a beer truck driven by the defendant-appellee, Stephen P. Manard, and owned by the defendant-appellee, Superior Sales Company, Inc. The sole question presented for determination is whether the trial court erred in permitting a police officer, who investigated the accident, to testify that his official accident report contained his conclusions that the plaintiff, the driver of the motorcycle, had illegally speeded and followed too closely and that his report did not show any contributing actions on the part of the driver of the beer truck.
The facts in the case are not greatly in dispute and essentially are as follows: On the morning of April 17, 1974, a motorcycle driven by plaintiff Lollis collided with a beer truck driven by defendant Manard. Both Lollis and Manard had been in a grocery store on the southwest corner of 11th and Waverly Streets in Kansas City, Kansas, just prior to the collision. Manard, having completed his deliveries, started the truck engine, turned on his left-turn signal, pulled away from the curb, and proceeded in a southerly direction down 11th Street. Plaintiff Lollis, at approximately the same time, started up his motorcycle which was parked behind the beer truck and proceeded to follow the truck in the same direction. 11th Street is a two-way street, 32 feet in width. The pavement was asphalt and the road surface was dry. The posted speed limit on 11th Street was thirty miles per hour. It is undisputed that the beer truck driven by Manard made a right-hand turn to the west on Greeley Street, a block south of Waverly. Plaintiff’s motorcycle collided with the right-rear side of the beer truck. The driver of the truck heard an impact and stopped the truck. Plaintiff and his motorcycle ended up close to the corner of 11th and Greeley near the curb.
The evidence offered by plaintiff Lollis and that of the defendants as to how the collision occurred was in conflict. Plaintiff testified that when the beer truck drove away from the curb it had its left-turn signal on and that the signal was still blinking at a point about halfway down the street toward the corner. Plaintiff, believing that the driver of the beer truck intended to make a left turn, started to pass the beer truck on the right side. At that time, the beer truck was traveling in the middle of the street. There were no parked cars in the area and there were no cars ahead when the plaintiff started past the beer truck. Plaintiff testified that, as the front of his motorcycle became even with the back of the truck, the truck’s left-turn signal was still blinking. This was about thirty feet from Greeley Street. At this point, the plaintiff was on the right-hand side of the truck going down the middle of the lane, out about three feet, nine inches, from the curb. After plaintiff passed the rear end of the truck, the beer truck without warning made a right-hand turn. The plaintiff’s motorcycle collided with the rear wheels of the truck. At that time, the plaintiff testified that he was driving twenty to twenty-five miles per hour. Plaintiff did not sound his horn. He may have applied his brakes at the time of the collision, but not before. He remembered the truck going over him and being under the wheels, just dragging down the street. Plaintiff had no recollection of where he was located or where the cycle was located, except that he could see both the truck and motorcycle. The plaintiff suffered serious personal injuries. After the accident, he lay on his back looking straight up and could not move. Plaintiff remembered that the driver of the truck came up and said that he had not seen the plaintiff. The plaintiff told the police officer that he was hurting and should go to the hospital. The plaintiff did not tell the police officer how the accident happened. Stated simply, it was plaintiff’s theory that the beer truck was proceeding south on 11th Street with its left-turn signal indicating a left turn. Plaintiff then proceeded to pass the truck on the right. The truck suddenly turned into him. The vehicles collided and the motorcycle was dragged by the truck from the point of impact until the truck stopped. The specific acts of negligence relied upon by the plaintiff were that the defendant driver executed an improper right turn, failed to give a proper signal for a right turn, and failed to keep a proper lookout.
Defendant Manard testified that when he left the grocery store after making his delivery, he observed the plaintiff’s motorcycle parked behind his truck. He did not recall ever seeing the plaintiff. Defendant entered the truck, started the engine, pulled the brake off, and turned on his left-turn indicator. He checked his rearview mirror and then pulled away from the curb. He let the steering wheel turn the left-turn signal off, and then turned on the right-turn signal. This was about halfway down the block. The beer truck’s speed was less than twenty miles per hour. After Manard turned on his right-turn signal, he never turned it off. The beer truck proceeded down 11th Street toward Greeley traveling approximately in the middle of the street. As the beer truck traveled south, the driver did not become aware of anyone behind; he did not hear any horn or screech of brakes. The driver started to turn his wheel to the right as the truck was even with the sidewalk on Greeley Street. As the driver proceeded in his turn, he heard a noise that sounded like broken glass. He stopped, put on his flasher, got out of the truck, and saw the plaintiff in the street. The motorcycle was lying north of the truck on Greeley up against the curb and in the gutter. There was no damage to the rear of the truck and no broken glass. Stated simply, it was the theory of the defendants that the beer truck was proceeding with due care south on 11th Street toward the intersection with its right-turn signal blinking and properly commenced its turn to the right on Greeley Street. The specific acts of contributory negligence relied upon by defendants were that the plaintiff operated his motorcycle at an excessive rate of speed; failed to keep a proper lookout; made an improper attempt to pass on the right side of the beer truck; failed to stop, swerve, or turn aside to avoid a collision; and failed to sound his horn or otherwise signal his intention to pass the beer truck. It should be noted that the defendants did not claim that the plaintiff’s motorcycle was following the beer truck too closely.
At the trial of the case, the plaintiff called as his first witness Tommy Smith, a relative of plaintiff’s wife, who arrived at the scene after the collision had occurred. His testimony was restricted to a description of the scene and his observations of the plaintiff lying on the street along with the motorcycle. The plaintiff’s second witness was Charles Gibson of the Kansas City, Kansas, Police Department, who testified in substance as follows: On April 17, 1974, Gibson was a police officer with the traffic division. He investigated the motorcycle-truck accident involved in this case. Following his investigation at the scene, he prepared a report of accident. Gibson was not familiar with motorcycles and he could not determine from the motorcycle’s condition whether it was disabled from operation as a result of damage received in the collision. There was no damage to the truck. Gibson determined the point of impact between the motorcycle and truck to be at the extreme right side of the truck behind the right-dual wheels. No persons at the scene reported that they had seen the collision. There was no debris on the street from the impact itself. The officer observed what he described as skid marks or gouge marks on the street. He measured thirty-nine feet of gouge marks which he described as angling in a westerly direction from their point of beginning to the corner, going in a radius around the corner. The thirty-nine feet of gouge marks were apparently made by the motorcycle. When he arrived at the scene, the defendants’ truck was on Greeley Street facing west, with the dual wheels approximately at the west curb of 11th Street. The plaintiff’s motorcycle was lying immediately behind the right-dual wheel. Neither vehicle had been moved. He found no defects in the lights, turn signals, or mirrors. Because of plaintiff’s physical condition, Gibson did not take a statement from the plaintiff at the scene. Gibson never at any time obtained a statement from plaintiff Lollis as to his version of the accident. Officer Gibson talked with defendant truck driver at the scene about the accident and what led up to it. Defendant Manard told the officer that he was southbound on 11th Street, making a right turn to go westbound on Greeley. He heard the noise of an impact, stopped the truck, and saw that “somebody had slid into the right rear of his truck.”
Officer Gibson was then cross-examined by defense counsel. It is this cross-examination which raises the claim of trial error now before the court for determination. On cross-examination, Gibson testified that, based upon the statements of the truck driver, speculation on his (the officer’s) part, the final positions of the vehicles, and the gouge marks, he determined that, at the time of the incident in question, the truck was making a right turn and the motorcycle was going straight down the roadway. The witness was then asked by the defense counsel if he had made any determination as to what action on the part of either driver may have contributed to this incident. Plaintiff’s objection that the question required an answer based on hearsay and speculation was sustained. Counsel also objected to the question on the grounds that conclusions as to the contributing factors contained in a police report are not admissible into evidence. The trial court ruled that the witness could state his conclusion as to what he found and how he reached his conclusion, if the proper foundation were laid. Officer Gibson then testified again as to his observation of the thirty-nine feet of gouge marks and his determination that they came from the motorcycle. He observed the position of the vehicles when he arrived at the scene.
The following questions were then asked by defense counsel and answers given by officer Gibson:
“Q. Now, based on those factors that you observed there at the scene did you come to some conclusion as an investigative officer as to what driver’s action may have contributed to this incident?
“FIELDS: I object to that as being improper foundation for the purposes of the record.
“COURT: He may answer.
“A. Yes, sir.
“FIELDS: I object to any further answers.
“RUSHFELT: Let me ask the next question. Rased on those factors that you did observe, what was your conclusion in that regard with respect to the driver’s action that contributed to this incident that you show it there on your report?
“FIELDS: Renew our objection on the basis of no proper foundation.
“COURT: Overruled. You may answer.
“A. Driver number one, which would be the Honda had illegally speeded and followed too closely.
“Q. Did you show any contributing action by the driver of the truck?
“A. None.”
Following these questions and answers, Gibson testified that he did not talk to the plaintiff and did not know his version of the accident, but that they were, nevertheless, the best conclusions he could come to under the circumstances he found at the scene.
On redirect examination by plaintiff’s counsel, the officer testified that he came to the conclusion that the motorcycle was moving at an illegal or unsafe speed solely and totally upon the presence of the gouge marks. He did not talk to the driver of the motorcycle nor had anyone else who had seen the movement of the vehicles prior to the collision. He did not see the motorcycle prior to the collision; nobody told him how fast the motorcycle was going at the time of the collision. Officer Gibson again stated that his conclusion that the motorcycle was going at an illegal or unsafe speed was based solely and wholly on the fact that the cycle skidded thirty-nine feet and laid down some gouge marks prior to the place he found it to be lying at the time he arrived at the scene. In regard to his conclusion that the motorcycle was following too closely, Gibson testified that nobody at the scene told him that prior to the impact the beer truck was driving well out into the middle of the street and signaling to make a left-hand turn and that the motorcycle was attempting to pass the truck in the clear right-hand lane. He agreed that, if those facts were correct, it was not the typical rear-end situation. Nobody at the scene told him that those were the facts. The first time he heard that version of what happened was right then at the trial. Officer Gibson did not think he would have come to different conclusions had he heard the plaintiff’s version out at the scene. Gibson testified that it was his job at the scene to weigh the facts and make determinations as to who is telling the truth and who isn’t, along with the physical evidence at the scene. It is clear that the police officer talked only to defendant Manard and received only one side of the story.
On recross-examination by defense counsel, officer Gibson testified that, as of the date of the accident, he had been a member of the police force for ten years and had investigated in excess of a thousand accidents, involving all kinds of vehicles. The officer also stated that the contributing circumstances are part of his official report. Later, prior to the plaintiff’s resting his case, his counsel moved for a mistrial based upon the admission of officer Gibson’s conclusions as to the actions of the drivers which contributed to the accident. This motion was denied.
There was other evidence presented at the trial which need not be considered for a determination of the appeal. It is important to note, however, that, at the time officer Gibson testified, neither plaintiff Lollis nor defendant Manard had taken the stand to give their respective versions as to how the accident happened. The testimony of officer Gibson was based only on what he actually observed at the scene and what he was told at the scene by the defendant Manard. Following a verdict in favor of the defendants, plaintiff appealed to the Court of Appeals, claiming several trial errors. The Court of Appeals affirmed the trial court. This court granted review on the sole issue of whether the trial court erred in permitting officer Gibson to testify on cross-examination concerning his conclusions in the accident report discussed above.
We have concluded that the district court erred in admitting the conclusions of officer Gibson as to the contributing factors to the accident for two reasons: First, there was no proper foundation laid for the officer’s conclusions; and second, the conclusions of the officer as to the contributing factors were not the proper subject of expert testimony. We will consider each of these matters separately. In Spraker v. Lankin, 218 Kan. 609, 612, 545 P.2d 352 (1976), we recognized that experienced police officers and troopers of the Kansas Highway Patrol, having the requisite experience and training, have frequently been permitted to express opinions as to the speed of vehicles involved in highway collisions, based upon evidence observed at the scene, including direction of travel, skid marks, point of impact, damages to the vehicles, and the location in which the vehicles came to rest. We noted also that the receipt of opinion evidence by accident reconstruction experts and physicists has frequently been approved by this court. We further observed that the opinions of experts may be helpful to a court or jury in motor vehicle cases particularly where there are no eyewitnesses to a collision. However, such opinions must be based on reasonably accurate data available at the scene. Where there is little factual data, computations based upon assumption and speculation should not be received in evidence. In Smith v. Estate of Hall, 215 Kan. 262, 524 P.2d 684 (1974), we held that a police report of an accident investigation which contains statements of a hearsay character and conclusions on the part of the officer preparing the report is not admissible as substantive evidence. We emphasized that an expert’s opinion is not admissible where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.
In a number of cases this court has held that a police officer’s conclusions as to the “contributing factors” to an automobile accident, noted on his accident report, as distinguished from his recorded observation as to physical conditions, are inadmissible into evidence. In Morlan v. Smith, 191 Kan. 218, 380 P.2d 312 (1963), the accident report contained the statement “no improper driving indicated.” The court held the admission of that portion of the report to be prejudicial error. The court reasoned that, in the first place, the report was hearsay, and, secondly — the statement, “no improper driving indicated,” was a pure conclusion on the part of the investigating officer dealing with the very question of negligence which the jury was impaneled to try. Again in Allen v. Ellis, 191 Kan. 311, 380 P.2d 408 (1963), it was held that the admission of two officers’ testimony that no arrest of the defendant was made nor any traffic ticket issued and the admission of one officer’s report of his investigation and conclusions made thereon was highly improper and constituted reversible error.
In McGrath v. Manee, 194 Kan. 640, 642, 400 P.2d 1013 (1965), the officer’s report indicated, under a column headed “Driver Violations Indicated,” that the plaintiff had been guilty of “inattention” and “improper start from parked position.” This court held that the trial court committed error in admitting and allow ing the officer to testify as to the conclusions therein contained. We pointed out that the officer’s conclusions were nothing more than his opinion dealing with a question which was for the jury to decide — was the plaintiff negligent? The same rule is again followed in Gardner v. Pereboom, 197 Kan. 188, 194, 416 P.2d 67 (1966), where we held that the trial court properly refused to let counsel question a police officer as to the police officer’s opinion of a reasonable maximum speed at the intersection under the circumstances surrounding the accident.
The cases just discussed follow the general rule recognized throughout the United States which excludes from admission into evidence portions of official reports of police officers relating to the cause or responsibility for an automobile accident. There are many cases on the subject cited in the annotation at 69 A.L.R.2d 1148.
Turning to the factual circumstances of the present case, officer Gibson testified that his conclusions as to the actions of the drivers which contributed to the accident were based upon the thirty-nine feet of gouge marks, the locations of the vehicles at the scene, and the statement of the truck driver made at the scene of the accident. The conclusion of the police officer that the plaintiff’s motorcycle was exceeding the thirty mile-per-hour speed limit, of necessity, had to be based upon the assumption that the thirty-nine feet of gouge marks on the pavement occurred prior to the collision as the plaintiff applied the brakes in an attempt to stop the motorcycle and thus avoid the collision. In arriving at his conclusion as to illegal speed, the police officer relied, at least in part, upon the hearsay statement made to him by Manard, the driver of the beer truck. In so concluding, the officer had to weigh and reject or completely ignore the plaintiff’s version of the accident. Officer Gibson’s testimony was that the gouge marks seemed to angle in a westerly direction from their point of beginning to the corner and then went in a radius around the corner. There was testimony that both sides of the motorcycle were damaged and that the handle bars were bent together. This was evidence tending to prove that the motorcycle collided with the truck and then was dragged, along the street and under the truck, causing the gouge marks to be made on the street surface. There was no debris on the street to indicate the point of impact. The plaintiff testified that he did not apply his brakes before the time of impact. This evidence was not known to officer Gibson at the time he prepared his report. Under the circumstances, we conclude that it was prejudicial error for the court to admit into evidence the police officer’s conclusions in his police report that the plaintiff was driving his motorcycle at an illegal rate of speed, was following too closely, that these actions contributed to the accident, and, further, that he found no actions of the truck driver which contributed to the accident. In our judgment, there was insufficient factual data to serve as a foundation for the officer’s conclusions. The conclusions were clearly based, at least in part, upon the hearsay statements of defendant Manard made at the scene, and the officer had to accept these statements as true to reach his conclusions. Under the circumstances, the trial court erred in admitting the officer’s conclusions into evidence.
We now turn to the contention of the plaintiff that the conclusions of officer Gibson were inadmissible because such conclusions were not a proper subject for expert testimony. Prior to the enactment of the statutory rules of evidence contained in the 1964 Kansas Code of Civil Procedure (K.S.A. 60-401 et seq.), various Kansas decisions stated the general rule to be that the opinions or conclusions of a witness should not be received in evidence. Many decisions, however, recognized, as an exception to the general rule, that a witness having special knowledge and qualifications on subjects requiring special skills and studies could testify as to his opinion on matters within his field of expertise. The basis for the admission of expert opinion testimony was said to be necessity. (Erb v. Popritz, 59 Kan. 264, 59 Pac. 871 [1898].) More recently in Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974), the court discussed in depth the limitations on the admission of expert testimony. There the court noted the provisions of K.S.A. 60-456(d), which provides in substance that testimony in the form of opinions otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. It is emphasized in Massoni that, in spite of the broad language used in 60-456(d), opinion testimony on the ultimate issue or issues is not admissible without limitations. The court stated that, although an expert witness may be permitted to give an opinion bearing on the ultimate issue, he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. The court held that where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions to be drawn from the facts and circumstances are inadmissible. It is obvious that these observations simply state, in a different way, that the basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case.
The rule limiting the introduction of expert testimony stated and followed in Massoni is the rule generally followed throughout the United States. See, for example, Jones on Evidence (Sixth Edition, Gard) §§ 14.27 and 14.28, which is quoted in part in the Massoni opinion. In 11 Blashfield Auto Law Revised 3rd Ed., Trial Evidence, § 431.1, it is stated:
“Expert testimony should be received only where the subject-matter is complicated and embraces masters not elementary or of common knowledge. Expert testimony is not desirable where the jury can get along without it, and it is admitted only when likely to be of aid to the jury.
“. . . A witness may state opinions or conclusions when in possession of special skill or knowledge of the subject-matter thereof, and if inexperienced persons are likely to prove incapable of forming a correct judgment without the witness’ opinion.” (pp. 602, 604 & 607.)
In applying this rule, there is one situation where expert opinions on ultimate fact issues have almost universally been held to be inadmissible. In automobile negligence cases it is improper to submit to the expert witness all of the evidence on both sides and ask him what was the cause of the accident or injury. (Jones on Evidence [Sixth Edition, Gard] § 14.27.) The question of the admissibility of an expert’s conclusions as to the cause of or contributing factors to an automobile accident has caused this court some difficulty. In Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973), a highway patrolman, who had investigated the intersection collision in question, was permitted on cross-examination to testify, over objection, that in his written report under the column “Contributing Circumstances” he showed that the plaintiff driver failed to yield the right-of-way; in regard to the defendant driver, he indicated “None.” On appeal, the plaintiff challenged admission of this testimony urging that the testimony “usurped the province of the jury by stating ultimate facts which should have been reserved for the jury’s final determination.” The judgment was affirmed by a divided court, the majority opinion pointing out that under K.S.A. 60-456(d) expert testimony in the form of opinions otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. The court held in syllabus ¶ 7 that in an intersection accident, if all of the requirements of 60-456(d) are otherwise met, an expert may be permitted to give his opinion as to actions and circumstances of the parties, if any, which contributed to the accident. It is important to note, however, that on page 487 of the opinion, the court stated that to permit an expert to give his opinion on who was at fault in causing an accident is objectionable and should not be permitted.
The issue was again before the court in Massoni v. State Highway Commission, supra. In that case, the investigating highway patrolman was asked what he found, “if anything, to have been the contributing circumstance to this accident?” An objection to the question was overruled. The witness answered by stating that the cause of the accident listed on his report was improper overtaking on the part of one of the vehicles involved in the collision. It should be noted that the same question was asked the highway patrolman in both Ziegler and Massoni — whether the officer had determined any contributing factors in the accident? In each case the highway patrolman marked on his accident report certain boxes as to contributing circumstances of the accident. They both were asked to testify as to what they marked on the accident report and they both so testified. In Massoni, a majority of the court held Ziegler to be distinguishable on the basis that the officer in Ziegler gave his opinion as to what actions of the parties contributed to the accident, whereas in Massoni the officer testified who was at fault in causing the collision. Mr. Justice Owsley dissented in Massoni, stating that he was unable to draw any meaningful distinction between “contributed” to a collision and “caused” a collision with relation to the testimony of a witness.
The majority of the court in Massoni held that the officer’s conclusion as to who was at fault in causing the accident was improperly received since the matters at issue in the case were not sufficiently beyond the common knowledge of ordinary persons that the opinion of an expert would be helpful to the jury. The case was not of a complicated or technical nature. In other words, the situation was one where the normal experience and qualifications of laymen jurors would have enabled them to draw proper conclusions without the aid of expert conclusions or opinions. In such a situation, expert testimony is inadmissible. It is difficult to give any logical reason why the issue of the contributing factors to the accident was a matter beyond the normal experience and qualifications of laymen jurors in Ziegler, when the issue of who was at fault in causing the accident was held to be within the normal experience and qualifications of laymen jurors in Massoni.
In this case, we have reconsidered Ziegler and Massoni and have reached the conclusion that the distinction between “causing an accident” and “contributing to an accident” is a distinction without a difference. We have no quarrel with the rule recognized in Spraker v. Lankin, supra, that experienced police officers and reconstruction experts, having the requisite experience and training, should be permitted to express opinions as to the speed of vehicles involved in highway collisions when based upon the evidence observed at the scene of the accident, including direction of travel, skid marks, point of impact, damages to the vehicles, and the location in which the vehicles came to rest. We have concluded, however, that a highway patrolman or other expert may not properly state either his opinion as to which of the parties was at fault in causing an accident or his opinion concerning what actions of the parties contributed to the accident. An act of negligence which contributes to an accident must, of necessity, have at least a part in causing the accident. We note that in Webster’s Third New International Dictionary 496 (3rd ed.), the word “contribute” is defined in a causal sense as “to have a share in any act or effect.” Likewise, the word “contributing” is defined as something that “has a part in producing an effect.” We, therefore, hold that in an automobile negligence case, an expert witness, whether an investigating police officer or another expert, may not state his opinion as to what actions of the parties, if any, contributed to the collision or as to who was at fault in causing the collision. We specifically overrule Ziegler v. Crofoot, supra, and Massoni v. State Highway Commission, supra, insofar as those decisions permit an expert witness to give an opinion in an automobile negligence case concerning what actions of the parties, if any, contributed to the collision.
The testimony of officer Gibson presented in this case was highly prejudicial. There is always the danger that a jury will be overly impressed by the testimony of a police officer who gives the impression of being clothed with public authority. In this case, as in most cases, counsel for defendants emphasized that the section of the accident report designating the “Contributing Circumstances” was a part of the officer’s official report. We must recognize that a police officer in the performance of his duties is required to fill out the accident report at the scene of the accident. At that time no complete investigation of the accident has been made. Quite frequently unknown witnesses to the accident turn up later. At the scene the officer does not usually have the time to reflect on the physical facts and circumstances present and to consider them along with conflicting versions of the accident from the standpoint of different witnesses. The reliability of a police officer’s conclusions recorded at the scene pertaining to the “contributing circumstances” is by its very nature suspect. Issues as to who was negligent and whose negligence contributed to or caused an automobile collision should properly be left for determination by the members of the jury. That is their function in a jury trial.
For the reasons set forth above the judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed and the case is remanded to the district court with directions to grant the plaintiff-appellant a new trial. | [
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The opinion of the court was delivered by
SCHROEDER, C.J.:
This is an appeal from a judgment by the trial court granting foreclosure and cancellation of a real estate installment sales contract.
Irene Hird (plaintiff-appellee) and her husband entered into a real estate sales contract with John and Ellen Williams (defendants-appellants) on August 20, 1971.
The sale consisted of 27 various parcels of rental real estate located in Lawrence, Kansas. Under the contract the appellants assumed and agreed to pay the mortgage indebtedness on the properties; agreed to pay real estate taxes, special assessments and insurance; and after certain initial payments agreed to pay $189,420.18, with interest at the rate of five percent (5%) per annum from August 1, 1971, in regular monthly installments of $1,250.00 each beginning September 1, 1971.
The appellee filed a petition for cancellation and foreclosure on January 30,1976, in which she alleged the appellants had been in default of their mortgage payments since November 1, 1975. The appellants’ answer, filed out of time with leave of court, alleged ambiguity.
Thereafter on March 31, 1976, the appellants attempted to present oral testimony on the issue of ambiguity at their hearing. Prior to receiving any testimony the trial court directed the parties to submit briefs on the issue of ambiguity. On June 15, 1976, the trial court ruled by letter that the contract was not ambiguous and set a time for hearing remaining arguments on redemption rights.
At the hearing for redemption rights on July 16, 1976, the appellants unsuccessfully objected to the proceeding on the ground there remained factual issues in the case independent of the ambiguity question. The appellants’ proffer of proof was also rejected, and judgment of foreclosure, with right of redemption, was entered. At the termination of the redemption period a writ of assistance was issued and duly returned, and the appellee is currently in possession of the real estate under the contract.
The appellants first contend the trial court erred as a matter of law in ruling the contract in question was unambiguous on its face.
Specifically they claim that Paragraph 13 of the contract permits the substitution of real estate collateral other than the parcels described in the contract. They argue this substitution would have provided them with cash funds to carry on their contract payments and avoid default.
Paragraph 13 of the contract provides:
“The Buyers hereby direct the Escrow Agent to invest all pre-payments (and pre-payments do not include the payment of the $35,100.00 as herein provided, or the monthly payments of $1,250.00 as herein provided.) In Certificates of Deposits, Treasury Notes, or any other securities they may desire, as long as due diligence is exercised to assure that said pre-payment principal shall earn a minimum of 5%. Said interest and any principal which may be paid from time to time on the said prepaid investment shall be directed to be paid to said Escrow Agent with the instruction that it shall be used as credit for the Buyers’ $1,250.00 monthly payments due to the Sellers.”
The trial court determined the contract was complete and unambiguous and concluded:
“. . . [T]he terms of the contract are not susceptible to a construction that would require plaintiff to substitute a property offered by defendants for the release of a contract property not paid for under the terms of the contract by defendants so that defendants could then sell such contract property.”
We agree. As a general rule when a contract is complete and unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of the contract evidenced by the writing is inadmissible. (See First National Bank of Hutchinson v. Kaiser, 222 Kan. 274, 277, 564 P.2d 493 [1977] and cases cited therein; Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, Syl. 3, 535 P.2d 873 [1975]; and Geiger v. Hansen, 214 Kan. 83, 519 P.2d 699 [1974].) Furthermore, the rules of construction need not be applied where the provisions of a written instrument are clear and unambiguous. (Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 [1976].)
Of course, determining whether a written contract is free from ambiguity is a judicial function. (First National Bank of Hutchinson v. Kaiser, supra at 278 and Gibbs v. Erbert, 198 Kan. 403, Syl. 1, 424 P.2d 276 [1967].) Here the trial court properly found the entire contract and Paragraph 13 in particular clear and unambiguous. Paragraph 13 deals with the handling of advance or prepayments over and above the regular monthly payments. It directs any such payments be invested by the escrow agent, at interest, and paid to the seller at the rate of $1,250.00 each month in lieu of regular monthly payments. After the prepayment credit is exhausted the buyers are required to resume their regular monthly payments. Clearly no provision in Paragraph 13 provides for the substitution of collateral in the form of real estate or personal property. Accordingly, no error has been shown in the trial court’s ruling.
The appellants also allege the trial court erred in refusing to allow them the opportunity to present oral testimony pertaining to the issue of mutual mistake of fact.
At the hearing to determine redemption rights the appellants attempted to reopen the question of ambiguity under the guise of mistake. The trial court observed this was the first mention of the defense of mistake, and the appellants would not be allowed to develop a new theory for their defense each time the trial court ruled against them.
After carefully reading the statement made by the appellants’ counsel in support of their defense of mistake we conclude nothing new was offered. The statement covered the very same defensive theory previously presented by the appellants under the theory of ambiguity. In effect, the appellants were attempting to establish an ambiguity which would open the door for parol evidence to justify and explain their default. We have concluded the trial court was correct in finding the contract free from ambiguity and ordering the issue terminated.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This action was commenced by the plaintiffs, Southeast Kansas Landowners Association, an unincorporated association composed of more than 230 persons owning more than eighty per cent of the land over which proposed, toll roads are to be routed, and Kent Radcliff, Phyllis Clayton, and Lynn Swearingen, individually and as representatives of a class of similarly situated persons, to permanently enjoin the defendant, The Kansas Turnpike Authority, from building, and from issuing bonds to fund, the proposed Southeast Kansas Turnpike, which will extend from Winfield, Kansas, to the Baxter Springs-Galena area in southeast Kansas, and the “connector,” which would connect the proposed Southeast Kansas Turnpike and the present Kansas Turnpike, extending from Winfield, Kansas, to the area of Belle Plaine, just south of Wichita. The trial court found in favor of the Kansas Turnpike Authority on all issues; plaintiffs appeal.
There are a number of issues, which will be detailed later in this opinion. We turn first to the legislative history and background facts.
LEGISLATIVE HISTORY
The original Kansas Turnpike statutes were enacted in 1953 (Laws 1953, Chap. 308). These now appear as K.S.A. 68-2001 to 2020, inclusive. Certain studies were statutorily mandated; these were required before the project could be undertaken. Section 2 of the original act, K.S.A. 68-2002, provides:
“. . . No toll road project shall be undertaken unless and until such project and the proposed location therefor have been thoroughly studied with respect to traffic, engineering, cost and financing nor unless such study shows: (a) That public funds for construction of a free expressway are not available; (b) that the construction of a toll expressway can be financed wholly through the investment of private funds in toll road revenue bonds; and (c) that the project and indebtedness incurred therefor will be entirely self-liquidating through tolls and other income from operation of the project.”
The issuance of Turnpike revenue bonds was authorized. These were made payable solely from revenues by section 8 of the 1953 act, now K.S.A. 68-2008, which provides:
“Revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but all such bonds shall be payable solely from the funds herein provided therefor from revenues. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the state nor the authority shall be obligated to pay the same or the interest thereon except from revenues of the project or projects for which they are issued and that neither the faith and credit nor the taxing power of the state or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds.
“All expenses incurred in carrying out the provisions of this act shall be payable solely from funds provided under the authority of this act and no liability or obligation shall be incurred by the authority hereunder beyond the extent to which moneys shall have been provided under the provisions of this act.”
The construction and funding of the 18th Street Expressway, connecting Kansas City, Kansas, and the original Kansas Turnpike, with the urban areas of northeast Johnson County, was authorized by Laws of Kansas, 1957, Chapter 368, since amended and now appearing as K.S.A. 68-2031-2049. The 1957 act required studies similar to those required in the original turnpike act, but additional funds were provided to pay the indebtedness in the event that revenues were not sufficient in any year. Sections 2, 4, and 7 of the 1957 act read in part as follows:
. . No toll road project shall be undertaken unless and until such project and the proposed location therefor have been thoroughly studied with respect to traffic, engineering, cost and financing nor unless such study shows: That ade quate public funds for construction of a free expressway are not available; and that the construction of a toll expressway can be financed wholly through the investment of private funds in toll road revenue bonds issued under the provisions of this act; and that the project and indebtedness incurred therefor will be entirely self-liquidating through tolls and other income from operation of the project and any payments to the authority from the state highway fund provided to be made pursuant to the provisions of said section 4; and that the average amount of the annual revenues to be received from the operation and ownership of such project from the estimated opening of such project for traffic until the final maturity of the bonds to finance such project, over and above the cost of maintenance, repair and operation of such project, will be greater than the maximum amount established for any year for interest, principal and premium by the provisions of clauses (i), (ii) and (iii) of section 4. (§ 2.)
“The state highway commission and the authority are hereby authorized and empowered to make and enter into any and all contracts and agreements, including (but without limitation) any contract or agreement for the removal or construction of any bridge or other highway facility which they may deem necessary, desirable or incidental to the financing, construction, maintenance, repair or operation of any turnpike project financed under the provisions of this act.
“With respect to any turnpike project financed under the provisions of this act, the commission is authorized and empowered to contract or agree with the authority to pay to the authority from the state highway fund, upon order or voucher of the commission in the manner provided by law to the state controller, in each year, such amount or amounts as shall be required in such year to make up any deficiency in the revenues received from the operation and ownership of such turnpike project in such year, over and above the cost of maintenance, repair and operation of such turnpike project incurred in such year; (i) for paying the interest on all turnpike revenue bonds or turnpike revenue refunding bonds issued by the authority in connection with such turnpike projects; (ii) for retiring such bonds at their maturity or maturities; and (iii) for paying the premium, if any, on an aggregate principal amount of such bonds equal to the portion of the annual payment computation hereinafter mentioned applicable to principal which would be payable in such year if such principal amount of bonds were to be redeemed prior to their maturity or maturities. . . .” (§ 4.)
“Revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but. all such bonds shall be payable solely from the funds herein provided therefor from revenues and any payments to the authority from the state highway fund provided to be made pursuant to the provisions of section 4 of this act and pledged for their payment. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the state nor the authority shall be obligated to pay the same or the interest thereon except from revenues of the project or projects for which they are issued and any payments from the state highway fund pledged to the payment of such bonds, and that the faith and credit of the state are not pledged to the payment of the principal of or the interest on such bonds.
“All expenses incurred in carrying out the provisions of this act shall be payable solely from funds provided under the authority of this act and no liability or obligation shall be incurred by the authority hereunder beyond the extent to which moneys shall have been provided under the provisions of this act.” (Emphasis supplied.) (§ 7.)
The 1967 legislature authorized some additional turnpike studies by Laws of Kansas, Chapter 356, now appearing as K.S.A. 68-2051 to 2069, inclusive. The provisions for a preliminary study, and for the issuance of revenue bonds payable solely from revenues of the project paralleled the requirements in the original turnpike act. This enactment authorized the feasibility study of a toll road from Kansas City to the southeast corner of the state; studies were made, but the project was not found to be feasible.
Laws of 1972, chapter 249, now K.S.A. 68-2070 to 2092, inclusive, authorized certain toll road projects, including one from Wichita to the vicinity of Strother Field, in Cowley County. The act provides:
“. . . No highway project shall be undertaken unless and until such project and the proposed locations therefor have been thoroughly studied with respect to traffic, engineering, cost and financing nor unless such study shows: That adequate public funds for construction of free expressways on the routes to be served by such project are not available, and that the construction of such project can be financed wholly through the investment of private funds in highway revenue bonds issued under the provisions of this act; and that such project and indebtedness incurred therefor will be entirely self-liquidating through tolls and other income from operation of such project or projects but not including any amounts to be paid from the state highway fund as permitted by this act: Provided, In determining whether the project and indebtedness will be entirely self-liquidating it shall be proper to consider actual and anticipated tolls and other income from any other project or projects financed under this act and also any reserves which are or will be available from proceeds of the bonds or any other source: And provided further, Once the authority has determined that such study, or the study as amended and supplemented, shows that the provisions of this section are met, the project or projects shall be undertaken and bonds herein authorized shall be issued and the validity of the project or projects and the validity of the bonds shall not be affected by any question concerning the determination of the authority. (§2.)
“The [Kansas turnpike] authority is hereby authorized and empowered to:
“(b) issue highway revenue bonds of the authority to pay the cost of any project, payable solely from the tolls and revenues derived therefrom and any payments to the authority from the state highway fund provided to be made pursuant to the provisions of this act which are pledged for their payment, and to refund its bonds, all as provided in this act; (§ 3.)
“With respect to any highway project financed under the provisions of this act, the commission is authorized and empowered to contract or agree with the authority to pay to the authority from the state highway fund, upon order or voucher of the commission in the manner provided by law to the state controller, in each year, such amount or amounts as shall be required in such year to make up any deficiency in the revenues received from the operation and ownership of any highway project in such year, over and above the cost of maintenance, repair and operation of such highway project and the creation of reserves for such purposes in such year, (i) for paying the interest on all highway revenue bonds or highway revenue refunding bonds issued by the authority in connection with any such highway project, (ii) for retiring such bonds by their maturity or maturities, and (iii) for paying the premium, if any, on a specified aggregate principal amount of such bonds which would be payable in such year if such principal amount of bonds were to be redeemed prior to their maturity or maturities. . . . Any such contract or agreement shall provide for reimbursement by the authority, from tolls or other revenues of such highway project to the commission for the credit of the state highway fund, at any time or times and under such terms and conditions as may be set forth therein, if any amounts previously paid to the authority by the commission pursuant to the provisions of this paragraph: Provided, however, That if the revenues received from the operation and ownership of such highway project in any year, over and above the cost of maintenance, repair and operation of such highway project incurred in such year, shall exceed one hundred fifty percent (150%) of clauses (i), (ii) and (iii) above for such year, such excess must be reimbursed to the commission, for the credit of the state highway fund, until all amounts previously paid to the authority by the commission have been reimbursed to the commission. (§ 4.)
“Bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but all such bonds shall be payable solely from the funds herein provided therefor from revenues and any payments to the authority from the state highway fund provided to be made pursuant to the provisions of this act and pledged for their payment. All such bonds shall contain on the face thereof a statement to the effect that neither the state nor the authority shall be obligated to pay the same or the interest thereon except from revenues of any project and any payments from the state highway fund pledged to the payment of such bonds, and that the faith and credit of the state are not pledged to the payment of the principal of or the interest on such bonds.” (§ 7.) (Emphasis supplied.)
Laws of 1973, chapter 269, authorizes a toll road, commencing near the city of Winfield, at a point of intersection With the Wichita-Strother Field expressway, and continuing in an easterly direction to a point on the Kansas-Oklahoma border in the vicinity of the cities of Galena and Baxter Springs. The 1973 act contains provisions substantially identical with those quoted from the 1972 act.
Laws of 1974, chapter 276, amended the 1973 enactments to authorize the state highway commission to make payments to the authority not only from the state highway fund, but also from the state freeway fund. The pertinent provisions of the 1974 amendments are as follows:
. . No highway project shall be undertaken unless and until such project and the proposed locations therefor have been thoroughly studied with respect to traffic, engineering, cost and financing, nor unless such study shows: That adequate public funds for construction of free expressways on the routes to be served by such project are not available, and that the construction of such project can be financed wholly through the investment of private funds in highway revenue bonds issued under the provisions of this act; and that such project and indebtedness incurred therefor will be entirely self-liquidating through tolls and other income from operation of such project or projects, but not including any amounts to be paid from the state highway fund or state freeway fund as provided by this act and the act of which this section is amendatory: Provided, In determining whether the project and indebtedness will be entirely self-liquidating it shall be proper to consider actual and anticipated tolls and other income from any other project or projects financed under this act and also any reserves which are or will be available from proceeds of the bonds or any other source: And provided further, Once the authority has determined that such study, or the study as amended and supplemented, shows that the provisions of this section are met, the project or projects shall be undertaken and bonds herein authorized shall be issued, and the validity of the project or projects and the validity of the bonds shall not be affected by any question concerning the determination of the authority. (§ 1.)
“The authority is hereby authorized and empowered to:
“(b) issue highway revenue bonds of the authority to pay the cost of any project, payable solely from the tolls and revenues derived therefrom and any payments to the authority from the state highway fund or state freeway fund provided to be made pursuant to the provisions of this act and the act of which this section is amendatory and which are pledged for their payment, and to refund its bonds, all as provided in this act; (§ 2.)
“With respect to any highway project financed under the provisions of this act, the commission is authorized, empowered and directed to contract or agree with the authority to pay to the authority from the state freeway fund or state highway fund, upon order or voucher of the commission in the manner provided by law to the director of accounts and reports, in each year, such amount or amounts as shall be required in such year to make up any deficiency in the revenues received from the operation and ownership of any highway project in such year, over and above the cost of maintenance, repair and operation of such highway project and the creation of reserves for such purposes in such year, (i) for paying the interest on all highway revenue bonds or highway revenue refunding bonds issued by the authority in connection with any such highway project, (ii) for retiring such bonds by their maturity or maturities, and (iii) for paying the premium, if any, on a specified aggregate principal amount of bonds which would be payable in such year if such principal amount of bonds were to be redeemed prior to their maturity or maturities. Any contract or agreement entered into pursuant to this section shall provide that all payments to the authority pursuant to this section shall be made from the state freeway fund, unless the moneys available in said fund for making such payments are insufficient; and in such event, such contract or agreement shall provide that any additional moneys needed to make any such payment or payments shall be paid from the state highway fund. . . . Any such payments required to be made pursuant to such contract or agreement may be pledged or assigned by the authority in the same manner as tolls and other revenues of such highway project. Any such contract or agreement shall provide for reimbursement by the authority, from tolls or other revenues of such highway project to the commission for the credit of the state highway fund or state freeway fund, at any time or times and under such terms and conditions as may be set forth therein, of any amounts previously paid to the authority by the commission pursuant to the provisions of this paragraph. . . .
“Any payments authorized . . . to be made to the authority from the state freeway fund in any year pursuant to the provisions of this section shall be a lien and claim on that portion of said freeway fund which is not otherwise obligated . . . The laws of Kansas shall not be repealed or amended so as to cause the moneys available in the state freeway fund for making any payments to the authority provided to be made pursuant to the provisions of this section to be insufficient to make any such payments. (§ 3.)
“The authority is hereby authorized to provide by resolution at one time or from time to time for the issuance of not exceeding two hundred forty-two million dollars ($242,000,000) highway revenue bonds of the authority, unless such limitation is increased or repealed by law, for the purpose of paying the cost of any project or projects. The principal of and the interest on such bonds shall be payable solely from the funds herein provided for such payment, including any payments to the authority from the state highway fund or state freeway fund provided to be made pursuant to the provisions of this act and the act of which this section is amendatory, and pledged for their payment. . . . (4.) (Emphasis supplied.)
“Bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but all such bonds shall be payable solely from the funds herein provided therefor from revenues and any payments to the authority from the state highway fund or state freeway fund provided to be made pursuant to the provisions of this act and the act of which this section is amendatory, and pledged for their payment. All such bonds shall contain on the face thereof a statement to the effect that neither the state nor the authority shall be obligated to pay the same or the interest thereon except from revenues of any project and any payments from the state freeway fund or state highway fund pledged to the payment of such bonds, and that the faith and credit of the state are not pledged to the payment of the principal of or the interest on such bonds.” (§ 5.)
The state freeway fund was created in the Laws of 1969, chapter 462, section 3, which now appears as K.S.A. 79-3425. By section 18 of the 1969 act, the state highway commission was “authorized, empowered and directed to establish and construct a state system of modern express highways and freeways.” The act was vetoed by then Governor Robert B. Docking, but the veto was overridden by a two-thirds majority of both houses of the legislature. Section 18, since amended, now appears as K.S.A. 68-2301.
The money allocated to the state freeway fund is derived from the tax on motor fuels imposed by article 34 of chapter 79 of the Kansas Statutes Annotated. See, K.S.A. 79-3425. The tax on motor fuels is imposed, as provided in K.S.A. 79-3402, “for the purpose of producing revenue to be used by the state of Kansas to defray in whole, or in part, the cost of constructing, widening, purchasing of right-of-way, reconstructing, maintaining, surfacing, resurfacing and repairing the public highways, including the payment of bonds heretofore issued for highways included in the state system of this state, and the cost and expenses of the director of this state and his or her agents and employees incurred in administration and enforcement of this act and for no other purpose whatever.”
BACKGROUND FACTS
Following the enactment of the 1973 act, the Turnpike Authority took steps to make the prerequisite studies for the “connector” and the Southeast Kansas Turnpike. The Authority retained three firms, each of whom had been retained to assist in the making of the required preliminary studies for the original Kansas Turnpike.
The Authority engaged the engineering firm of Coverdale & Colpitts, of New York City, to make an estimate of the potential traffic and the tolls and other revenues to be realized on each of the segments being considered, the proposed “connector” and the proposed Winfield to Galena turnpike.
Knoerle, Bender, Stone and Associates, Inc., a Chicago based civil engineering firm, was retained to do the needed engineering studies, and to estimate the cost of land acquisition, construction, operation, and maintenance of the proposed toll roads.
Finally, the brokérage house of E. F. Hutton & Company, Inc., of Kansas City, Missouri, was retained as financial consultant, to advise the Authority as to the feasibility of issuing and funding the bonds authorized for construction.
Extensive studies were made by each of these consultants.
Their initial reports were not favorable. For example, Coverdale & Colpitts reported in September, 1973, that the revenues then estimated “come nowhere near the revenues needed to pay [maintenance and operation] expenses and debt service for a bond issue and would require support from the State Highway Fund.” (Emphasis supplied.) We should note, however, that this letter was premised upon the issuance of 20-year bonds, and the retirement of the bonds within that period.
In June, 1974, after the enactment of the amendments heretofore quoted, updated and final reports were made to the Authority by each of the consulting firms. Knoerle, Bender, Stone and Associates presented its final cost estimate; Coverdale & Colpitts presented an updated estimate of revenues over a 46-year period (which was considerably more optimistic than its earlier forecasts); and E. F. Hutton & Company, basing its opinion upon the final reports of Knoerle, Bender, Stone and Associates and Coverdale & Colpitts, reported to the Authority that in its opinion the projects would be self-liquidating over the 40-year life of the bonds, and the project was thus feasible.
The Authority determined that public funds were not available to build free expressways over the proposed routes. In reliance upon the reports received from the Knoerle, Coverdale, and Hutton firms, the Authority adopted a resolution on June 27, 1974, in which it recited the receipt of the reports and the making of a thorough study by the Authority with respect to traffic, engineering, cost and financing, and that construction of the proposed toll roads “can be financed wholly through the investment of private funds in highway revenue bonds . . .; that such highway revenue bonds . . . will be entirely self-liquidating through tolls and other income from operation of such expressway, but not including any amounts to be paid to the Authority [from] the State Highway Fund [or] State Freeway Fund . . . and . . . that with respect to such express highway, the Authority has determined that its study shows that the provisions of Chapter 269 of the Laws of Kansas, 1973, as amended by Section 2 of Chapter 275 and Section 1 of Chapter 276 of the Laws of Kansas, 1974, are met.”
The Authority submitted its final report to the State Highway Commission on July 30,1974. On August 14, 1974, the Authority and the Commission entered into contracts covering both proj ects. The Commission agreed to make payments to the Authority from the State Highway Fund, in connection with the “connector,” and from the State Freeway Fund or the State Highway Fund, in connection with the Southeast Kansas Turnpike, as authorized by Laws of Kansas, 1972, Chapter 249, § 4 (now K.S.A. 1977 Supp. 68-2073) and Laws of Kansas, 1974, Chapter 276, § 3 (now K.S.A. 1977 Supp. 68-2096), respectively.
This injunction action was filed July 15, 1974. The matter was fully tried, briefed, and argued, and proposed findings of fact and conclusions of law were filed by counsel. On November 18, 1976, the trial court entered its order. It made lengthy and detailed findings of fact and conclusions of law. The conclusions of law are as follows:
“I. The persons constituting the Southeast Kansas Landowners Association, including the individual plaintiffs named, the objectives of the action and the issues brought before this Court are such as to make this matter a proper class action per the requirements of K.S.A. 1973 Supp. 60-223(b).
“II. Neither the Enabling Legislation nor any rule or regulation requires the Authority to state findings of fact in support of the determinations required by the Enabling Legislation and the Authority is not required to make any such findings of fact. Any failure by the Authority to make any such findings is not a basis for invalidating the Authority’s determinations.
“HI. The Authority made the study required by the Enabling Legislation with respect to the Southeast Kansas Turnpike and the Connector. The method of accomplishing such study and the conclusions resulting from such study are matters within the discretion of the Authority and can be reviewed only for the purpose of determining whether the Authority’s conclusions were in contravention of the Enabling Legislation or fraudulent or so arbitrary, capricious or unreasonable as to amount to fraud. The Authority did not act in contravention of the Enabling Legislation, did not act fraudulently and did not act so arbitrarily capriciously or unreasonably as to amount to fraud in making the study required by the Enabling Legislation, in passing the resolutions adopted on June 27,1974, or in making the determinations set forth in those resolutions.
“IV. The statutes which create, maintain and govern the distribution of the State Highway Fund include the Enabling Legislation. Said statutes authorize the payment of monies from the State Highway Fund to or on account of the Southeast Kansas Turnpike and/or the Connector projects for bond or bond-related deficiency payment purposes, and none of said statutes prohibit such payments.
“V. Article XI, §§ 9 and/or 10 of the Constitution of the State of Kansas do not guarantee a state system of highways available for free, open public use and for general access to all parts of the state. The Enabling Legislation does not violate Article XI, § 9 or § 10 by pledging to or on account of the Southeast Kansas Turnpike and/or the Connector for bond or bond-related deficiency payments monies in the State Highway Fund.
“VI. The Enabling Legislation provides adequate standards respecting the payment of monies from the State Freeway Fund and/or the State Highway Fund. The Enabling Legislation is not an improper delegation of legislative power and does not violate Article 2, § 1 of the Constitution of the State of Kansas.
“VII. The Enabling Legislation is not comprised of special acts and does not violate Article 2, § 17 of the Constitution of the State of Kansas.
“VIII. The construction of the Southeast Kansas Turnpike and the Connector projects are public purposes. The exercise of the power of eminent domain in connection with the Southeast Kansas Turnpike and/or the Connector and pursuant to the Enabling Legislation will not be improper because of a lack of public necessity therefor and will not violate the Fifth Amendment, or Section 1 of the Fourteenth Amendment, of the Constitution of the United States or Sections 1, 2 or 18 of the Bill of Rights of the Constitution of the State of Kansas.
“IX. Plaintiffs’ may not recover attorneys’ fees or litigation costs other than ordinary court costs and may recover ordinary court costs only if plaintiffs prevail.”
The trial court then entered judgment for the defendant on all issues; this appeal followed. We should note that as of this date, bonds have not been issued by the Authority to fund either project.
RULES OF STATUTORY CONSTRUCTION
Before turning to the issues raised, we should review briefly the principal rules governing the judicial construction of acts of the legislature, and governing judicial review of the actions of administrative boards. 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 statutes. Easom v. Farmers Insurance Co., 221 Kan. 415, Syl. 2, 560 P.2d 117 (1977); Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978); Brinkmeyer v. City of Wichita, 223 Kan. 393, 573 P.2d 1044 (1978).
In determining legislative intent, courts are not limited to a mere consideration of the'language employed, but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effect the statute may have under the various constructions suggested. State, ex rel., v. City of Overland Park, 215 Kan. 700, Syl. 10, 527 P.2d 1340 (1974); State v. Luginbill, 223 Kan. 15, 574 P.2d 140 (1977).
In construing a statute, the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Harris v. Shanahan, 192 Kan. 629, 635, 390 P.2d 772 (1964); Rogers v. Shanahan, 221 Kan. 221, 228, 565 P.2d 1384 (1976).
The wisdom, justice, and expediency of legislation is not for judicial determination. State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 689, 273 P.2d 198 (1954).
The limitations on judicial review of the actions of administrative agencies, absent statutory guidance, were discussed in Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959), where at page 479, then Justice Schroeder said:
“While Kansas does not have an administrative procedure act, it has been held that our courts have jurisdiction over special tribunals established by statute, even though no right of appeal has been conferred by statute from the decisions of such special tribunals. The rules concerning ministerial acts of special tribunals established by statute and of public officers are well stated in Allen v. Burrow, 69 Kan. 812, 77 Pac. 555, as follows:
“ ‘It has often been said of special tribunals established by statute to pass on matters expressly committed to them that their jurisdiction is exclusive and their determinations final, and that courts will not review their conclusions nor inquire by what method they were reached, but always with an express or implied reservation that the statement holds good only where the action of such tribunal is characterized by good faith, and is free from fraud, corruption, and oppression . . . No rule is better settled than that courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion, but this rule presupposes the existence of good faith, and relates to acts done under the guidance of opinions honestly formed, however mistaken in fact; it has no application to acts done under the influence of a corrupt motive. Even arbitrary and capricious conduct, amounting to an abuse of discretion, will justify mandamus to compel a proper performance of duty, upon the theory that there has been, in fact, no real exercise of judgment . . .’ (Emphasis added.) (pp. 820, 821.)” (p. 479.)
THE CONVENTIONAL REVENUE ROND ISSUE
The first and primary issue before us is whether the Authority, and the experts it retained, erred in failing to apply conventional revenue bond concepts. Plaintiffs contend that the enabling legislation for the southeast Kansas turnpike and the connector only authorized the issuance of conventional revenue bonds, or “conventional supported” revenue bonds. The defendant contends that the statutes authorized the issuance of “subsidized or guaranteed” revenue bonds.
The parties agree that there are three types of revenue bonds: conventional or pure revenue bonds; “conventional supported” revenue bonds; and “subsidized or guaranteed” revenue bonds. Each requires a different type of study.
A conventional or pure revenue bond study, such as that conducted under the original Kansas Turnpike Act, is premised upon there being but a single source of funds: tolls and other revenues of the project, which must be adequate to pay all costs of maintenance and operation of the project, and all principal and interest payments on the bonds, for each year of the project, commencing with the first year. The amount of revenue projected for the project must be at least fifty per cent over the “break-even” point, in order to provide sufficient protection for investors.
A “conventional supported” revenue bond study is premised upon there being two sources of funds, tolls and other revenues from the project, and standby or supplementary funds. There must be sufficient anticipated revenues from the proposed project to pay all maintenance and operation cost plus principal and interest on the bonds, each year of the project, beginning with the first year; but, because an additional source of funds is provided, the amount of projected revenue need only equal the amount required to break even — an amount sufficient to pay the anticipated maintenance, operation, and bond expense. The supplementary source (in this case, the state freeway fund and the state highway fund) provides additional protection for the investors.
A “subsidized or guaranteed” revenue bond study is based upon the assumption that the revenues will not be sufficient to pay all expenses during the early years of the project. Such deficiency will be met by payments from a supplemental source. The study need only show that the project will be self-liquidating over the designated life of the bonds. The revenues need not be sufficient to pay all the costs for the first few years, as long as sufficient revenue is generated over the life of the project to pay all of the maintenance, operation, and bond expense, including repayment of advancements from the supplements source made during the initial years.
All of the Kansas Turnpike statutes require that the project be self-liquidating; but in the acts now before us, the legislature has authorized additional and supplementary sources of funds for payment of the bonds and interest — payments from the State Highway Fund in the case of the connector, and from both the State Freeway Fund and the State Highway Fund in the case of the Southeast Kansas Turnpike. If the legislature intended each project to pay its own way from the start, it could have said so, as it did in the 18th Street Expressway legislation. The legislature abandoned the pure or conventional bond revenue requirement of the original Turnpike act when it enacted the 1957,1972, 1973, and 1974 acts.
When the 1974 amendments were before the Kansas legislature, Senator Bob Storey, who carried the amendments on the Senate floor, distributed to each senator a copy of a financial chart prepared by the controller of the State Highway Commission. This chart shows the amounts of money which the State Highway Commission estimated would be required to support the Southeast Kansas Turnpike during the initial years of its operation. The legislature was thus made aware that the projected tolls from the Southeast Kansas Turnpike would not be sufficient, in the initial years of its operation, to fund the project, and that supplemental funds from some other source or sources were necessary if the road were to be built. Such projections are not consistent with a plan for the issuance of either conventional revenue bonds or conventional supported revenue bonds. Both types require projections of revenue sufficient to meet all expenses, commencing with the first year of the project’s operation. The projections before the Senate indicated clearly that the project would be unable to support itself during its early years. The repayment provisions contained in the acts indicate that the legislature intended the project to be self-liquidating, not at the start, but over the entire span.
Three separate, distinct, and independent findings are required by the enabling acts of 1972, 1973 and 1974. The Turnpike Authority must make each required finding before bonds can be issued and sold. The Authority has done so. The first finding is that adequate public funds are not available so that freeways can be built over the proposed routes. The Authority could and did make that determination without expert assistance.
The second is that the proposed construction can be financed — all construction costs can be paid — from the proceeds of the bonds. This the Authority determined from the construction cost estimates of Knoerle, Bender, and from the report of Hutton indicating that the necessary sums for construction could be realized from the sale of the bonds. This finding is concerned with the initial financing of construction, not with revenues or operational costs thereafter, except insofar as those having a bearing upon the salability of the bonds.
The third required finding is that the project, including the indebtedness created by the issuance of bonds, will be entirely self-liquidating from tolls and other income from operation. Amounts advanced from the state freeway fund and the state highway fund must be repaid, and all operational, maintenance, bond and interest cost must be paid from the income generated by the project. The basis for this finding lies in the maintenance and operation cost estimates of Knoerle, Bender & Stone; the revenue estimates of Coverdale & Colpitts; and the amount of principal and interest of the proposed bond issue. Since the legislature knew that the project would not be self sufficient at the outset, the only rational construction of the legislative language is to hold that the legislature meant the project to be self-liquidating over the term of the bonds.
We hold that the 1972,1973, and 1974 acts, each construed as a whole, authorize the issuance of “subsidized or guaranteed” revenue bonds, and that the Authority and the trial court did not err in so construing the acts.
THE GENERAL OBLIGATION BOND ISSUE
Are the highway revenue bonds authorized by the enabling legislation violative of Article 11, § 9 of the Kansas Constitution? We think not. That section provides in part that “The state . . . may adopt, construct, reconstruct and maintain a state system of highways, but no general property tax shall ever be laid nor general obligation bonds issued by the state for such highways . . .”
Though the enabling acts authorize payments from the state freeway fund and the state highway fund, those funds are not raised by general property taxes; instead, both arise from the levy of special taxes on motor fuels. See Article 11, § 10 of the Kansas Constitution, and K.S.A. 79-3401, et seq., as amended.
The bonds themselves, by the express terms of the statute, and by the express language required to be set forth on the face of the bonds, are not general obligation bonds. We conclude that the highway revenue bonds authorized by the 1972, 1973 and 1974 acts do not violate Article 11, § 9 of the Constitution.
THE STUDIES
Plaintiffs contend that the studies made by Coverdale & Colpitts, and the other firms retained by the Authority, were not supported by the evidence, and that the conclusions in the several reports made to the Authority in June, 1974, were thus erroneous. All of plaintiffs’ objections to the reports and the conclusions were thoroughly litigated in the trial court. In some instances plaintiffs’ experts disagreed with the conclusions of those engaged by the Authority. As to land values, for example, plaintiffs’ expert estimated the acquisition cost to be several times the figure arrived at by Knoerle, Bender & Stone. The trial court pointed out that the Knoerle, Bender & Stone estimate was the result of a tract by tract analysis, involving on-site viewing and several months of office work; plaintiffs’ expert, on the other hand, had spent six days total office time on the appraisal.
The early Coverdale & Colpitts reports, as we have previously noted, were based upon a conventional bond approach; the later report was made by applying a subsidized or guaranteed bond approach to the data already on hand as a result of many months’ work.
As is natural, appellants emphasize that evidence which would support conclusions favorable to appellants’ position contrary to the conclusions reached by the consultant firms. It would extend this opinion unduly, and add nothing to this discussion, to include a detailed statement of the evidence disclosed in the voluminous record. We have carefully reviewed the evidence, however, and upon the whole of this record, we cannot say that the studies were insufficient or that the conclusions were not adequately supported and justified by the data at hand.
SCOPE OF REVIEW
As the trial court observed, a court cannot substitute its judgment for that of an administrative body, nor can a court overturn the decision of an administrative body unless the court is clearly satisfied from the evidence that the decision was unlawful. Other exceptions would be where the decision was fraudulent, corrupt, arbitrary, or capricious. Warburton v. Warkentin, supra; Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978).
The decision by the Authority to build the Southeast Kansas Turnpike and the Connector was an administrative decision. There is no contention that the decision was fraudulent or corrupt, and there is no evidence that it was made in bad faith, or that it constituted arbitrary or capricious action.
While the bringing of an action for an injunction is a proper means to challenge administrative action in the absence of a means of appeal, Brinson v. School District, supra, the granting or denial of an injunction is in most instances a discretionary matter. Absent manifest abuse of that discretion, an appellate court will not interfere. South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035 (1976). The court below did not abuse its discretion in denying injunctive relief.
Plaintiffs complain because the Authority did not make detailed findings of fact, stating each of the facts upon which it based its decision. No rule, regulation or statute requires it to make such findings. Decisions of the Kansas Turnpike Authority are not ordinarily the subject of judicial review as are the orders of some administrative agencies, such as the State Corporation Commission. See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P.2d 572 (1967), and Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660 (1968), where the rationale of the requirement that the State Corporation Commission make findings of fact is discussed. That rationale is inapplicable here. It is only when an administrative body is acting in a quasi-judicial capacity that findings of fact are necessary; here the Authority was acting administratively and not in any judicial or quasi-judicial capacity.
We have carefully examined each of the other points raised by the appellants, and we conclude that they are without merit.
We should add a caveat, however, that our affirmance of the judgment below in nowise clears the way for the immediate issuance of the contemplated highway revenue bonds. Construction costs, land values, operational costs, and the bond market have all changed measurably since the studies were conducted in 1973 and 1974. Updated information must be secured, studies must be reworked, analyses must now be made and decisions reached on the basis of current information. The predictions of growth and highway development in southeast Kansas, made over four years ago, may now be viewed in retrospect and com pared with actuality. Any future administrative decision to proceed must be made in conformity with the statutory guidelines as set forth in the enabling acts.
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The opinion of the court was delivered by
McFarland, J.:
This is an interlocutory appeal from an order dismissing O. D. Turner, Secretary of Transportation, from the action on the grounds that the claim of highway defect was not based on negligence and, accordingly, could not be compared with the negligence of others under K.S.A. 60-258a.
The plaintiff was a passenger in a vehicle driven by Gilbert L. Thomson, Jr., which collided with a vehicle owned by Acid Engineers, Inc., and driven by one of its employees, Steven A. Probst. The collision occurred on March 11, 1976. The plaintiff brought this action, based on negligence, against the estate of his deceased driver as well as Acid Engineers, Inc., and its employee, Steven Probst. Defendant Probst, in his answer, alleged that the State of Kansas was a necessary party for the purpose of comparing negligence. The alleged negligence of the State was based on claimed highway defects. On the motion of Probst, O. D. Turner, as Secretary of Transportation, was joined as an additional party defendant and was duly served. At no time did plaintiff make any claim against the Secretary. On motion of the Secretary, he was dismissed from the action on the grounds that a highway defect was not based on negligence and could not be compared with the negligence of others. From this order, defendants Probst, Acid Engineers, Inc., and Home Insurance Company appeal.
The issues on appeal are as follows:
1. Whether the State of Kansas through O. D. Turner, Secretary of Transportation, is immune from liability based on negligence.
2. If O. D. Turner is immune from liability based on negligence, whether the other defendants to the lawsuit may have their negligence considered, under K.S.A. 60-258a(c) so that all of the causal negligence can be considered and the various defendants’ percentage of negligence and liability, if any, reduced accordingly.
3. If the negligence of O. D. Turner is to be considered pursuant to 60-258a(c), whether he must remain as a named party or may the trial court enter an order allowing his percentage of negligence to be ascertained by the jury but dismissing him as a party for other purposes since no ultimate liability could be established against him.
ISSUE NO. 1
The appellants urge the abolition of state governmental immunity, seeking reversal of Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976). The court adhered to Brown in Whitmire v. Jewell, 223 Kan. 67, 573 P.2d 573 (1977), and continues to adhere thereto.
ISSUE NO. 2
K.S.A. 60-258a provides:
“(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.
“(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 or her causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.
“(é) The provisions of this section shall be applicable to actions pursuant to this chapter and to actions commenced pursuant to the code of civil procedure for limited actions.”
K.S.A. 1977 Supp. 68-419 provides:
“(a) Any person who shall without negligence on his or her part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state. Such recovery may be from the state when the secretary of transportation, or state transportation engineer, geographic engineer, supervisor or foreman in charge of the construction, maintenance or upkeep of such highway, shall have had notice of such defects five (5) days prior to the time when such damage was sustained, and for any damage so sustained, the injured party may sue the secretary of transportation, and any judgment rendered in such case shall be paid from any funds in the state highway fund on the order of the secretary of transportation. For any damage so sustained action may be brought in the district court of the county in which such damage was sustained, or in the district court of the county of which the plaintiff is an actual resident at the time of the sustaining of such damage; and upon the filing of such action in such court a summons shall issue out of such court directed to the secretary of transportation of Kansas, and shall together with a copy of plaintiff’s petition, be forwarded to the sheriff of Shawnee county, Kansas, for service, and service thereof shall be made by delivering to the secretary of transportation personally a copy of such summons and copy of the petition, or by leaving copies thereof at the office of the secretary of transportation, in Shawnee county, Kansas, by said sheriff, or his or her undersheriff or deputy sheriff, and said summons shall require the secretary of transportation to serve upon plaintiff’s attorney or upon plaintiff if he or she has no attorney named in the petition and file in the office of the clerk of the court from which said summons issued a pleading to said petition within sixty (60) days after service of said summons exclusive of the day of service: Provided, That no such action shall be maintained unless within ninety (90) days after the sustaining of such damage, written notice, stating the date, when, and place where such damage was sustained, the name and correct post-office address of the person sustaining such damage, and the character of the damage sustained, shall be served upon the secretary of transportation, either in person or by registered or certified mail at his or her office in Topeka, Shawnee county, Kansas. Any such action must be commenced within two (2) years next immediately following the date said damage was sustained. Mailing of the notice required by this section by registered or certified mail within ninety (90) days after such damages are sustained, shall be deemed sufficient service of notice of a claim.
“(b) Neither the state or the secretary of transportation, or any officer or employee of the state or the department of transportation, shall be liable to any person for any injury or damage caused by the plan or design of any state highway, or of any bridge or culvert thereon or of any addition or improvement thereto, where such plan or design, including the signings or markings of said highway, bridge or culvert, or of any addition or improvement thereto, was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.
“(c) For the purpose of this section, the term ‘state highway’ shall not include any road or highway constructed pursuant to subsection (c) of K.S.A. 1975 Supp. 68-406.”
The trial court, in determining that a highway defect was not based on negligence and was a strictly statutory liability, followed a long unbroken line of cases including the often-cited Payne v. State Highway Comm., 136 Kan. 561, 16 P.2d 509 (1932). The issue then becomes whether or not K.S.A. 60-258a compels a departure from the previous statutory construction when a defendant claims highway defects were a contributing cause of the collision and plaintiff’s damages. It should be noted that K.S.A. 1977 Supp. 68-419 does not contain any reference to whether liability for a highway defect was or was not predicated on negligence. This determination arose by judicial interpretation. This interpretation met the needs prior to the introduction of comparative negligence into Kansas. The State and a negligent driver could both be named as defendants on differing theories and, with the concept of joint and several liability, it mattered little that the action against one defendant was predicated on negligence and the other was not. However, the concept of joint and several liability between joint tort-feasors has been held to no longer apply to comparative negligence actions in Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). The individual liability of each defendant for payment of damages will be based on pro portionate fault, and contribution among joint judgment debtors is no longer required in such cases (Brown v. Keill, supra). The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on 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 (Brown v. Keill, supra). The appellants contend that the claimed defects contributed to plaintiff’s loss. In the context of comparative negligence, highway defects claimed to have contributed to the occurrence from which the injuries and damages arose must be compared to the alleged negligence of other parties if the intent of K.S.A. 60-258a is to be accomplished.
The plaintiff makes no claim against the Secretary and has not complied with the procedural prerequisites for maintaining such a claim. Accordingly, any percentage of fault attributable to the Secretary is lost to plaintiff as far as recovery is concerned. Any other defendant found at fault will be liable on the basis of percentage of fault found attributable to such defendant.
ISSUE NO. 3
O. D. Turner, Secretary of Transportation, was properly joined as a party defendant pursuant to K.S.A. 60-258a(c). An additional party defendant in a comparative negligence action may not be dismissed from an action solely because of his immunity. It was, accordingly, error to enter the order of dismissal.
CONCLUSION
The judgment is reversed and the trial court is directed to reinstate O. D. Turner, Secretary of Transportation, as a party defendant.
Miller, J., dissenting to Syl. 4 and the corresponding part of the opinion. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by defendant Michael Ray Soles from a jury verdict finding him guilty of three counts of first degree murder (K.S.A. 21-3401), one count of aggravated burglary (K.S.A. 21-3716), seven counts of aggravated battery (K.S.A. 21-3414), and one count of aggravated assault (K.S.A. 21-3410). The charges stem from a shooting spree carried out by Soles on August 11, 1976, from atop the highest building in downtown Wichita.
The facts are undisputed. Michael Ray Soles took his 30-30 rifle, the shells he had made that morning, and an extra gun, and drove to the Holiday Inn in downtown Wichita, stopping only once to buy more shells. After reaching the hotel, he parked his car and went to the top of the building. The roof was inaccessible, so he forced a maid out of a room on the twenty-sixth floor and went in, locking the door behind him. He then began shooting out of the window toward the street below. The shooting spree left three persons dead and seven wounded. He was finally apprehended and taken into custody by the police. He appeals from his convictions on the above charges.
Defendant contends he lacked competency to stand trial. The competency hearing was held on September 15, 1976, at which time Dr. Sayed Jehan of the Sedgwick County Mental Health Clinic presented testimony based upon his examination of defendant on August 25, 1976. Defendant first argues Dr. Jehan did not have all the evidence with which to make a proper evaluation because he did not have access to a state-ordered psychiatric evaluation report made on August 11, and because Dr. Jehan was not aware of the observations of a sheriff’s detective made on August 17. Both the psychiatrist’s report and the detective’s observations noted that defendant purported to be in a trance-like state. In addition, defendant contends Dr. Jehan did not have the benefit of the report of Dr. T. A. Moeller, who had administered a Thematic Apperception Test to defendant. He claims the state was obligated to present this additional evidence at the competency hearing and that failure to do so resulted in an invalid evaluation.
In addition to the above mentioned tests and reports which appear to have been made before the competency hearing, defendant claims the trial court erred in not considering the October, 1976, court-ordered examination concerning Soles’ mental state, the testimony at trial of a Dr. Leslie Ruthven, a ten-year-old report on Soles made by the Children’s Medical Center, and observations of officers and a fellow prisoner regarding defendant’s behavior after court recessed for the day on December 21, 1976.
K.S.A. 22-3301 governs the test for determining competency to stand trial:
“(1) For the purpose of this article, a person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
“(a) to understand the nature and purpose of the proceedings against him; or
“(b) to make or assist in making his defense.
“(2) Whenever the words ‘competent,’ ‘competency,’ ‘incompetent’ and ‘incompeten’cy’ are used without qualification in this article, they shall refer to the defendant’s competency or incompetency to stand trial, as defined in subsection (1) of this section.”
Also, the test is stated in the often quoted case of State v. Severns, 184 Kan. 213, 336 P.2d 447 (1959):
“[T]he test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner. Stated in different fashion, if the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.” (p. 219.)
See also State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Holloway, 219 Kan. 245, 547 P.2d 741 (1976); State v. Randol, 212 Kan. 461, 513 P.2d 248 (1973); State v. Hamrick, 206 Kan. 543, 479 P.2d 854 (1971); State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967); Van Dusen v. State, 197 Kan. 718, 421 P.2d 197 (1966); Kiser v. State, 196 Kan. 736, 413 P.2d 1002 (1966).
Dr. Jehan’s report appears to make a clear distinction between the emotional stress defendant was experiencing and his inability to cope with anger and hostility, as opposed to his ability to understand the nature of the proceedings against him. His report states Soles’ memory and concentration were good throughout the examination and, although the doctor recommended Soles be treated to learn how to vent his frustrations in a normal manner, Soles was not suffering from any psychosis at that time and was, in the doctor’s opinion, competent to stand trial.
A reviewing court is limited to an inquiry into whether the trial court’s finding of competency amounted to an abuse of discretion. State v. Gilder, 223 Kan. at 224-25; State v. Lewis, 220 Kan. 791, 796, 556 P.2d 888 (1976); Johnson v. State, 208 Kan. 862, 863, 494 P.2d 1078 (1972); State v. Childs, 198 Kan. at 8. There is no evidence to suggest the trial court abused its discretion in ordering defendant competent to stand trial, based upon Dr. Jehan’s report. Also, there has been no showing the state deliberately withheld from the trial court’s consideration the reports taken before the competency hearing. We note, however, all reports and observations made both before and after the competency hearing were eventually presented at trial.
K.S.A. 1977 Supp. 22-3302 allows a defendant, his counsel, or the prosecuting attorney upon request, or the judge upon his own observations, to request a determination of the defendant’s competency to stand trial at any time after defendant has been charged and before sentencing. The record does not indicate any of the parties made such a request. The trial court duly noted defendant’s behavior during court and heard the testimony of those witnesses who observed defendant after court recessed on December 21, 1976. The court did not believe defendant’s competency to stand trial had been impaired by the incident and proceeded with the trial. Under the circumstances, we find the trial court did not err in failing to order a determination of competency based upon the later evidence submitted at trial.
Defendant also contends he was unable to assist in his defense due to amnesia, to which Dr. Jehan alluded in his report. We have spoken on the effect amnesia may have on a defendant’s competency to stand trial and do not deem it necessary to belabor the point here. See State v. Gilder, 223 Kan. at 224; State v. Blake, 209 Kan. 196, 495 P.2d 905 (1972); State v. Severns, 184 Kan. at 218. We see no evidence the trial court abused its discretion as to the competency of defendant to stand trial.
Defendant’s second contention goes to the relevancy and possible inflammatory nature of the state’s evidence. Defendant believes that when the facts of the crime have been stipulated to in advance and counsel has given notice it is using an insanity defense, the introduction into evidence of photos, in particular those of the victims, is irrelevant and inflammatory to the jury. He complains of the admission of black and white photographs of the victims as they lay in the street after the shooting, color slides of the insides of various automobiles filled with blood, sacks containing clothing, papers and film cannisters covered with blood, and chat samples taken from a roof to show the roof was blood-stained. The state argues the evidence was admitted in order to prove defendant acted deliberately, willfully, knowingly and with premeditation.
We have viewed the photographs and slides submitted by the parties and we do not find them shocking or gruesome to the point of prejudicing the jury. In view of defendant’s insanity defense, it was necessary for the state to prove defendant acted knowingly and with premeditation in order to prove its case in chief. Photographs offered to prove the elements of the crime, the fact and manner of death, the violent nature of the death, and to corroborate the testimony of other witnesses are relevant and admissible. State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972); State v. Martin, 206 Kan. 388, 390, 480 P.2d 50 (1971); State v. Johnson, 201 Kan. 126, 129, 439 P.2d 86 (1968). Defendant heatedly complains of the showing of Exhibit No. 228, a color slide of the nude and bloody body of one of the victims lying on a morgue table. The slide had not been admitted into evidence and defendant contends it was shown to inflame the jury. We find no evidence to indicate the showing of this exhibit was anything more than accidental. Some of the photographs and exhibits may have been repetitious and irrelevant, but in view of the evidence itself we do not find their admission into evidence resulted in prejudice to defendant.
Defendant next contends the prosecutor’s presence in the jury box while illustrating an exhibit and questioning a witness was prejudicial to defendant and exemplified the prosecutor’s “fraternization” with the jury. The trial court’s statements indicate the exhibit was located at the end of the jury box, approximately six feet from the nearest juror, because of space limitations in the courtroom and because of “voluminous exhibits” occupying other areas of the courtroom. The statements of the court also indicate the prosecutor was not in the jury box, but was in the six-foot area between the exhibit and the jury box. We cannot condone a prosecuting attorney’s presence in the jury box while questioning witnesses or illustrating exhibits. Such action could constitute fraternization with the jury and result in prejudice to the defendant. In the case at hand, however, the trial court noted the prosecutor was near the jury box because of space limitations and no prejudice was shown due to the attorney’s actions. We adhere to the rule which leaves questions regarding the propriety of the prosecuting attorney’s conduct in examining or cross-examining witnesses to the sound discretion of the trial court. 23A C.J.S., Criminal Law § 1087, p. 116 (1961). We do not believe the trial court abused that discretion.
Defendant contends he was denied access to a state’s witness after he made an informal request of the prosecutor to speak with the witness before trial on January 6, 1977. The facts are in dispute regarding this incident and defendant has offered no affidavits from witnesses to substantiate his allegations. The record does not show a calculated attempt by the prosecutor to keep the defense counsel from the witness. Also, we note the witness was endorsed early in the proceedings and defendant does not indicate an inability to contact her before trial. Defendant has shown no prejudice resulting from his failure to interview the witness and we must dismiss his argument on appeal.
Defendant alleges impropriety on the part of the prosecutor and the trial judge in reference to the questioning of one of defendant’s witnesses. The record indicates the prosecutor attempted to interview Dr. Leslie Ruthven prior to trial. When the witness refused to talk with the prosecutor the trial judge was summoned and he ordered the witness to answer the prosecutor’s questions. The record also indicates that the witness fully testified at trial concerning conclusions as to the mental state of defendant. The judge’s direction to the witness to answer to prosecutor’s questions without further explanation of the witness’s right might result in trial error in some instances. Here, we cannot magnify that error to constitute reversible error because Dr. Ruthven was able to testify fully. We find no harm resulted to defendant and the contention is without merit.
Defendant’s next contention refers to the exclusion of a transcription of Officer Henry Salman’s account of his interrogation of defendant. The officer interrogated Soles at the scene of the crime, took notes in his notebook, made a tape of those notes at the station in a debriefing, and the debriefing session was later transcribed by a third person. Defendant wanted the transcription, done by a third person, admitted into evidence. The court sustained the state’s objection to the transcription, noting there had been no testimony showing the transcription to be an accurate reproduction.
Defense counsel attempted to establish the proper foundation for the evidence by cross-examining Officer Salmans as to possible inconsistencies between the officer’s notebook and the transcription; however, the record does not indicate the defense called the officer who actually transcribed the tape in order to authenticate the transcription. Officer Salmans recognized the transcription, but since he did not type the report from the tape he could not testify as to its authenticity. The court properly sustained the objection on the basis of improper foundation for the introduction of evidence.
Defendant argues pretrial publicity so inflamed the community and the state at large that he could not have received a fair trial anywhere in the state; therefore, he filed no motion for a change of venue. Other than evidence that the tragedy was thoroughly covered by the newspapers and television stations, defendant has made no showing that publicity reached such magnitude as to deny him a fair trial. The mere publication of news articles does not establish prejudice per se which would deny the defendant, a fair and impartial trial in the community. Green v. State, 221 Kan. 75, 76, 558 P.2d 110 (1976); State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867, 50 L.Ed.2d 147, 97 S.Ct. 177 (1976). Even though a criminal matter is widely covered and reported by the news media, it does not follow without further evidence that such prejudice exists which might reasonably prevent a fair trial. Green v. State, 221 Kan. at 76; State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972). Defendant’s only remedy was to file a motion for a change of venue and this court has stated that it will not consider allegations of prejudicial publicity claimed to have affected the fairness and impartiality of the trial proceedings where the defendant neither sought a change of venue below nor raised any objection to such publicity during the trial. State v. Platz, 214 Kan. 74, 76, 519 P.2d 1097 (1974).
After carefully examining the issues on appeal, we find them to be without merit. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This action involves the payment of 1974 ad valorem taxes on a manufacturer’s inventory pursuant to K.S.A. 79-1005, which taxes were paid under protest by appellant-taxpayer, Iowa Beef Processors, Inc., (hereinafter referred to as IBP). The State Board of Tax Appeals (hereinafter referred to as Board) ordered a refund of the protested taxes. Lyon County appealed the order to the district court which reversed and remanded the matter back to the Board. IBP appeals from the judgment of the district court.
IBP, a manufacturer, operates a beef slaughtering and processing plant in Emporia. The entire plant is a bonded licensed warehouse. IBP filed its rendition of personal property for 1974 with the county clerk-assessor of Lyon County on Form CV2R. The only part of that rendition in controversy here is that relating to inventory. The 1974 inventory rendition was based on the average inventory of the preceding year (1973) as required by K.S.A. 79-1005. IBP based its rendition on average daily gross sales; then exempted 96.8% of that amount as the percentage moving in interstate commerce pursuant to K.S.A. 79-304 (Weeks 1969) (now K.S.A. 79-201Í), the “freeport exemption.”
The county clerk-assessor refused to accept IBP’s rendition. The county claimed the total inventory was $1,225,882.00 with a tax assessment of $38,239.37. The county later claimed the correct figures are $3,516,022.40 and $109,676.69, respectively, but does not seek this higher figure. IBP claims the inventory value, after exemption, is $85,126.00 with a tax assessment of $2,655.39. IBP paid the difference, $35,583.98, under protest.
The Board found that IBP came under the freeport exemption and only 3.2% of the inventory was taxable in Kansas. It found that the gross sales reflected the entire inventory and that there was never anything in process. It concluded that the “single average day” met the average monthly value of K.S.A. 79-1005 and was correctly rendered by using one average day’s gross sales. It ordered the tax liability reduced by $35,583.98, the amount paid under protest.
The district court also found that 96.8% of the processed items were sold out of Kansas. But it found that the Board’s determination was unreasonable, arbitrary, and capricious. It found that there was processing involved and also that the Board incorrectly used “one day’s sales” as “one day’s inventory.”
The two questions before the Board were: (1) determination of the correct method of reporting IBP’s 1974 manufacturer’s inventory as required by K.S.A. 79-1005; and (2) determination of correct part or portion of 1974 IBP manufacturer’s inventory subject to exemption under the freeport provisions of K.S.A. 79-304 (Weeks 1969). While appellant designates six points (with subpoints) on appeal, they all go to the basic question of whether the district court was in error in reversing the order of the Board making those two determinations. The Board’s Order is as follows:
“Now, on this 13 day of January, 1976, the above captioned matters come on for consideration and decision before the State Board of Tax Appeals of the State of Kansas.
“Previous hereto these matters were extensively heard by the Board. The Board finds and notes that a Pre-Trial Conference was held on these matters on February 13,1975; that an Evidentiary Hearing was held on these matters on July 14, 1975; that suggested findings of fact and conclusions of law were submitted on behalf of both of the parties; that final oral arguments were heard by this Board on October 30, 1975; and, that subsequently thereto memorandum briefs were filed by each party.
“The Board finds and notes that appearing in these proceedings for the taxpayer corporation were Richard R. Funk and Gerald J. Letourneau, Attorneys, and appearing on behalf of Lyon County, Elvin D. Perkins, Attorney.
“The Board, after having reviewed all of the exhibits submitted, the transcript of the proceedings, all of the files and the evidence submitted, and all testimony and proceedings before it; after having considered final arguments and briefs submitted; and, after being fully advised in the premises, now finds as follows;
“1. Iowa Beef Processors, Inc., also herein referred to as IBP, is a corporation engaged in slaughtering and processing beef at Emporia, Kansas. Also Denison & Hide Company, a subsidiary of IBP, operates a hide facility within the Emporia, Kansas plant. Denison & Hide Company is not assessed separately and the valuation and assessment of this property is included in the valuation and assessment of IBP.
“2. That by stipulation of the parties, docket Nos. 3650-4 and 1231-5 were consolidated for a hearing and Order and cover the protest of the first and second half 1974 taxes paid by IBP, which taxes were levied and assessed against the inventory of IBP at its Emporia, Kansas plant for the tax year 1974.
“3. The question before this Board is the determination of the correct 1974 inventory valuation of Iowa Beef Processors, Inc., also known as IBP, of its personal property inventory located in its plant at Emporia, Lyon County, Kansas, as required by K.S.A. 79-1005 and related statutes. In this regard, the Board notes both IBP and Lyon County agree that there are two questions involved; that is, the determination of the correct method of reporting IBP’s 1974 manufacturer’s inventory, and (2) the determination of the correct part or proportion of the 1974 IBP manufacturer’s inventory subject to exemption under the freeport provisions of K.S.A. 79-304. The Board agrees that these are in fact the questions to be determined and finds that the determination of these questions will be made by analysis of all the facts and circumstances involved in this Protest and the application of the appropriate Kansas Statutes to the factual findings.
“4. Lyon County, also known as the County, claims, for the first time before this Board, that the correct 1974 inventory valuation of IBP is $3,516,022.40; which computes to $109,676.69 in 1974 ad valorem taxes. The County, however, has not and does not seek to obtain ad valorem taxes on IBP 1974 manufacturers inventory over and above an amount based on a total inventory valuation of $1,225,882.00 resulting in an assessed 30% value of $367,764.00, resulting in a levy of $38,239.37. IBP paid $35,583.98 of the said levy under protest for the year 1974. IBP claims that the correct 1974 inventory valuation, based on an average day’s inventory after applying their freeport exemption, is $85,126.00 or an assessed 30% valuation of $25,538.00, which when applied to the Emporia, Lyon County, Kansas tax rate of 10.3978, results in a 1974 ad valorem assessment of $2,655.39 for the 1974 manufacturers inventory taxes. IBP therefore is claiming a refund of $35,583.98, being the difference between the levied, $38,239.37, and the amount it admits due Lyon County, $2,655.39.
“5. The Board finds that IBP is a manufacturer as contemplated and defined in K.S.A. 79-1005 for the year 1974.
“6. The Board further finds that for the tax year in question IBP’s 1974 manufacturers inventory is under the canopy of the freeport provisions of K.S.A. 79-304. The freeport provisions as found in K.S.A. 79-304 for the year in question were by the Kansas Legislature placed in 79-201 effective for the tax years commencing after December 31, 1974, as provided in Senate Bill 30,1975 Session Laws, Chapter 495, new section 7. Although this current amendment does not apply to the instant tax year 1974, the Board notes that the legislative intent continues to treat the freeport provisions as an exemption, although perhaps now more clearly expressed with respect to manufacturers. The Board therefore concludes that with respect to the freeport exemption, IBP has met the requirements of the statute for exemption of a portion of its 1974 manufacturers inventory of which 96.8% is exempt and 3.2% is taxable to Kansas. In this regard, the Board adopts and finds as correct IBP’s Suggested Findings of Fact, Numbers 2, 15, 16 and 17 [which are as follows:
‘2. It was stipulated that the Taxpayer is a manufacturer. . . .
T5. That the gross sales at,the Emporia, Kansas plant reflected the entire inventory. . . .
‘16. That the Emporia, Kansas plant does not feed cattle . . .; that there is never anything in process . . .; normally there would be no live cattle in the pen at Emporia, Kansas after the second shift. . . .
T7. That all hides are handled through Denison Hide Company, a subsidiary of IBP, and all of them are shipped to points outside of Kansas. . . .’]
and Suggested Conclusions of Law, Numbers 2, 3, 4 and 5 [which are as follows:
‘2. That IBP operated a Bonded Warehouse and storage area at Emporia, Kansas for the period of January 15, 1973, to December 31, 1974.
‘3. That all hides from the Emporia, Kansas plant were shipped outside of Kansas in 1973, and under the provisions of K.S.A. 79-304, Subsection (b) (the Freeport Act), are 100% exempted from ad valorem taxation in Kansas.
‘4. That 96.8% of all customer sales by IBP from the Emporia, Kansas plant in 1973 were in interstate commerce and under the canopy of the Freeport Act, and the Taxpayer is entitled to exempt 96.8% of all customer sales from Kansas ad valorem taxes.
‘5. That 3.2% of all customer sales by IBP from the Emporia, Kansas plant for the calendar year 1973 were to Kansas customers, and are subject to Kansas ad valorem taxes.’]
“7. Now turning to the question of what is the correct inventory value subject to the freeport canopy, we find that we must first determine what was the correct method to arrive at inventory as prescribed by K.S.A. 1974 Supp. 79-1005. In this regard we note that 79-1005 provides for the ascertainment of an average monthly value of inventory. However, where inventory is not static, and rapidly turns over, day by day, as in the case instantly before us, this Board feels that it would be substantial error to value and assess the property for an accumulative average of 30 days of finished product. We therefore are of the opinion and conclude that in this instance a manufacturers inventory for ad valorem tax purposes must be determined to be a single average day within the assessment period. The Board further finds that the single average day as contemplated by K.S.A. 79-1005 was correctly rendered by the taxpayer’s agent Mr. Cloonan by rendering one average day’s gross sales during 1973. In this regard the Board adopts and finds as correct IBP’s suggested findings of fact No. 3, 4, 6, 7 and 8 [which are as follows:
‘3. Harrie J. Cloonan, an appraiser and consultant of Frontenac, Kansas, was employed by IBP in 1974 to prepare and file its 1974 commercial personal property statement, including the completion of the CV2R statement, together with the applicable CV2R Supplements. . . .
‘4. Mr. Cloonan prepared the inventory portion of IBP’s 1974 commercial personal property statement by rendering one average day’s gross sales during 1973. . . .
‘6. That at the Emporia, Kansas plant of IBP there is an average roll-over period of three days from the time the beef arrives at the plant until it is on the loading dock. . . .
‘7. That one day’s average gross sales figures was rendered rather than for the three-day roll-over period because gross sales include raw materials, labor, overhead and other production factors, resulting in a greatly inflated valuation figure (3 times) for ad valorem tax purposes. . . .
‘8. That IBP’s commercial personal property tax rendition was prepared in accordance with Kansas Statutes, and as construed by a Directive and Memorandum of the Kansas Property Valuation Department dated January 21, 1971. . . .’]
“8. The Board further finds and adopts suggested conclusions of law of IBP No. 6 [which is as follows:
‘6. That IBP’s 1974 rendition of its commercial personal property in Lyon County, Kansas, including its inventory based on daily average 1973 gross sales, was a proper and correct way to make its rendition, and is complete in all respects.’]
that IBP’s 1974 rendition of its commercial personal property in Lyon County, Kansas, including its inventory based on daily average 1973 gross sales, was the proper and correct way to make its rendition, and is complete in all respects. The Board wishes to comment on the county’s approach to method. The county, by the record, admits that the amended inventory as arrived at by the County Assessor was done on an incorrect approach. The Board further notes that in the county’s second approach to value that yet a different method was used, involving an approximation factor of 25% for inventory work in process. While we have carefully considered the county’s contentions, such approximations that are so indefinite and uncertain as to their application to the facts are not of any great help to this Board.
“9. The Board therefore finds and concludes that the 1974 inventory rendition of its personal property at Emporia, Lyon County, Kansas is correct and is in accordance with the applicable provisions of the Kansas Statutes Annotated. The Board further finds and concludes that IBP has complied with the provisions of K.S.A. 1974 Supp. 79-1005, K.S.A. 79-301 and K.S.A. 79-304 with respect to the ‘freeport exemption,’ and all other statutes applicable thereto.
“10. The Board therefore finds and concludes that the 1974 valuation placed on IBP merchandise manufacturers inventory located in Lyon County, Kansas is not correct and in order that said property will be correctly valued according to the applicable provisions of the Kansas Statutes Annotated for 1974, the value is fixed at $85,126.00 or an assessed 30% valuation of $25,537.00.
“IT IS, THEREFORE, BY THE STATE BOARD OF TAX APPEALS OF THE STATE OF KANSAS, CONSIDERED AND ORDERED that the officials of Lyon County, Kansas correct their books and records accordingly to conform with the findings of this Board. In this regard the protestant’s 1974 tax liability is ordered reduced in the amount of $35,583.98 which is to be immediately refunded to the protestant.’’
The district court’s memorandum is as follows:
“Findings of Fact
“1. On June 7, 1976, Lyon County, Kansas, hereinafter referred to as appellants, appeared by Mr. Elvin Perkins and Mr. R. P. Felkner; Iowa Beef Processors, Inc., hereinafter referred to as appellee, appeared by Mr. Richard R. Funk and Mr. Gerald J. Letourneau.
“2. This matter arises out of the manner in which the rendition was made by appellee in 1974 and 1973 ‘inventory’ for tax purposes. Appellee used the same proceeding in the prior year, basing the ‘inventory’ on one day’s average sale.
“3. In January of 1974, appellee met the requirements of a bonded warehouse and contend that they are under the provisions of K.S.A. 79-304 (Freeport Law).
“4. The County Assessor, in 1974, did not accept the rendition made by appellee and made her own assessment. Appellee paid the assessed tax under protest.
“5. This matter has been heard, after extensive research and discovery and several pre-trial hearings by the Board of Tax Appeals, who found generally for the appellee and against the appellants.
“6. All taxes paid in 1974 were protested by appellee and the cases are consolidated herein, and the protested sum was ordered repaid to appellee.
“7. Appellants have appealed to this Court.
“8. It is agreed that appellee is a manufacturer (K.S.A. 79-1005) who was required to list property for taxation (K.S.A. 79-303) subject, however, to K.S.A. 79-304 (which then contained the provisions now set forth in K.S.A. Supp. 79-201Í).
“9. It appears that about 96.8% of the appellee’s Emporia, Kansas, plant processed items were ultimately sold outside of Kansas, leaving 3.2% taxable in Kansas.
“10. The Board of Tax Appeals order, herein designated as an exhibit by appellee will hereafter be referred to as ‘Order.’
“11. Before any questions of fact can be considered, it is first necessary to determine if this court has jurisdiction to do more than to approve the Order. K.S.A. 74-2426 authorizes this appeal to this court and no question is presented as to procedure. When the Board of Tax Appeals makes an Order fairly and honestly, the court has no right to superimpose its opinion or to usurp the Board’s function (Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, Syl. 3). It is only when the order of the Board is unreasonable, arbitrary or capricious that this court may assume to interfere. (Kansas Ass’n of Public Employees v. Public Service Union, 218 Kan. 509, Syl. 1 & 2).
"12. Bearing the foregoing matters in mind, K.S.A. 79-303 requires a listing of property by the entities therein set forth. It being agreed that appellee is a manufacturer, K.S.A. 79-1005 is applicable (it has been agreed that the motor vehicles, real estate and certain other items are not in dispute herein and they are not considered in this opinion) and being a manufacturer, by definition, appellee must do something to the cattle besides kill them. By reason thereof, a process is involved.
“13. The provisions of K.S.A. 79-304 requires that appellee furnish the ‘Assessor with a report of the monthly average inventory for the preceding calendar year. . . .’In the Order, Finding of Fact 6, which includes appellee’s suggested Findings of Fact 15, 16 & 17, appellee clearly reflects that the Board has not considered the inventory but did consider sales as inventory — this is set out at Conclusion of Law # 7, which refers to Mr. Cloonan’s testimony in TR # 3. At pages 15, 16 & 28 thereof; the following occurs at page 28:
“ ‘Q. (by Mr. Perkins) Mr. Cloonan, then if I understand your testimony correctly, the rendering you made for 1974 was made entirely upon one day’s sale?
“ ‘A. Gross sale, yes, sir.’
“14. It should be further noted that the Board found appellee to be a manufacturer, but, at Finding of Fact # 16, states that there is never anything in process; and in the Conclusion of Law # 7 the Board adopts appellee’s suggested Conclusion of Law of an average ‘roll-over period’ of 3 days from the time the beef arrives at the plant until it is on the loading dock. . . .
“15. It appears that Mr. Cloonan, in an attempt to be fair, decided one day’s sales, included enhancement by processing, was such that it should equal the inventory for 3 days, but there is no reason stated why this should be so. (It should be noted that by reason of a directive from the Property Valuation Department, dated January 21, 1971, required substituting one DAY’S manufacturer’s stock for one month.) Mr. Cloonan indicated records were sketchy as to inventory and no dollar amount given but proof of sales were available. From his observation it was about 3 days from the time a live cow arrived at the Emporia plant until the finished product left the dock. . . . This leaves no room for doubt but that appellee is a manufacturer, and does process the beef in the Emporia, Kansas, plant.
“16. It should be further noted, that the Board must have treated appellee Emporia Plant as a storage area or a warehouse and concluded that supplies used in the processing of the beef were in storage as they are not shown to have been listed for taxation. This is contrary to K.S.A. 79-1005.
“17. Under these circumstances, the Court is of the opinion that the Board was unreasonable, arbitrary and capricious to the point where this court has jurisdiction to hear this appeal pursuant to K.S.A. 74-2426. In essence, it is the opinion of this court that statutes must be given strict interpretation of their unequivocal terms. There is a difference between ‘inventory and ‘one day’s gross sales.’ Deviation by the Board of Tax Appeals in this degree is considered to be sufficient to permit the appeal.
“In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828, the guidelines formulated by the Supreme Court are set out at page 450 in the following tenor:
“ ‘Rules firmly emerging from this line of authority may be summarized thus: A district court may not, on appeal, substitute its judgment for that of the administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily, or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.’
“18. In pursuing the first requirement as set forth in K.S.A. 74-2426, the turns and twists of this matter also determine the other two requirements. There is no substantial evidence that the Board of Tax Appeals considered inventory as required by K.S.A. 79-304. All they considered was ‘one day’s sale’ and equated such to be ‘inventory.’ There is no substantial evidence apparent to this court that the terms ‘inventory’ and ‘one day’s sale’ are synonymous, or, that in the instance of appellee ‘inventory’ equals ‘one day’s sale.’ This is particularly true when Mr. Cloonan’s testimony shows an average ‘roll-over’ period of three (3) days from the cow to the finished products thereof being on the dock. As an incidental matter, it further shows processing was being done at the Emporia Plant contrary to the Board’s finding # 6.
“19. Mr. Cloonan prepared the appellee’s rendition in toto.
“Conclusions of Law
“1. There is no question but the Board of Tax Appeals exceeded the scope of its authority when it determined ‘one day’s sale’ was ‘one day’s inventory’ without any substantial evidence upon which to base this assumption.
“There seems no question about the application or requirements of K.S.A. 79-1005. Appellee is stipulated to be a manufacturer as defined therein. Appellee is, therefore, subject to the balance of the requirements of the statute in averaging amounts of articles purchased and/or held for manufacturing, refining, or combining together with proceeds of the business and rendering a monthly average. It would appear that the directive of the Property Valuation Department of January I, 1971, was to be applied to this process. Personal property consumed in the processing should have been listed for taxation as therein required.
“2. K.S.A. 79-303 requires appellee to list property for tax purposes, and should be read in relation to K.S.A. 79-1005.
“K.S.A. 79-304 requires appellee to list the property for tax purposes in certain places and renders certain property exempt. No problems appear to arise until the exemption occurs. This has been referred to as the Freeport Law. When personal property is moving in interstate commerce, it does not acquire situs for tax purposes in Kansas, unless Kansas is its final destination. Personal property consigned to a bonded warehouse, as defined by statute, for less than 2 years does not acquire tax situs if the warehouse operator keeps the required records, unless the property’s ultimate destination is Kansas. In order to meet the requirement of exemption the party claiming the exemption must show it is applicable to the party’s case. Taxation is the rule. Exemption is the exception. In order to come within this exemption appellee must meet the statute requirements and show, among other things, that: (1) More than 35% of the property was destined outside of Kansas; (2) Furnish the County Assessor with a report of the monthly average inventory for the prior year and the value of the shipments destined beyond Kansas borders for each month of the prior year. If he does this he will pay Kansas Ad Valorem tax only on that percent destined for Kansas. If he does not do this, he has no exemption.
“3. It would not appear, reading K.S.A. 79-1005 and K.S.A. 79-304, that consumables in the processing would be exempt within the ‘Freeport Law’ and must be taxed as personal property on an average amount.
“It is necessary that appellee must furnish the required information to meet the exemption or forego it. The appellee must furnish the average ‘inventory’ of which 3.2% assessed at 30% of its value is to be applied to the levy of 10.3978 mills.
“4. Before any personal property, after it is acquired and located in Lyon County can be said to be in storage, all processing must have been completed on that item and it be laid away for future use. This is to say if it is a half of beef, that it is cooled out and ready to ship to a final destination upon determination where it is to go from storage. If it is a cattle pac, that it be in the box and nothing more is to be done to it until it is loaded on the truck to be transported from storage. If it is the hides, that they have soaked in the brine the required number of days, or if it is any other by-product that it is in final form and no further processing can remain to be done here before shipment to the final destination and the item actually be in storage. Until this point is reached, the personal property remains inventory. This, of course, makes the inventory of personal property under the Freeport Law as set out in K.S.A. 79-304 vital to the exemption offered thereunder. Fair and equal taxing is essential to healthy business and the court feels certain, beyond any doubt, that appellee has more than adequate records stored in computers to develop any necessary inventory information within a matter of hours.
“For the above reasons this matter is respectfully remanded to the Board of Tax Appeals for further proceedings as may be necessary to determine the correct inventory, value and tax due.
“Counsel for appellants will please prepare the Journal Entry.
“Dated this 6th day of July, 1976, at Emporia, Kansas.”
K.S.A. 79-1005 provides:
“(a) Every person, company or corporation who shall hold or purchase personal property for the purpose of adding to the value thereof by any process of manufacturing, refining or by the combination of different materials, shall be held to be a manufacturer;
“(b) Every manufacturer shall be required to make out a statement of his or her personal property for taxation, in which he or she shall state the average value, estimated as provided in this section, of all articles purchased or held for the purpose of being used in the process of manufacturing, refining or combining and all articles manufactured by him or her, which he or she had in his or her possession or under his or her control during the year next preceding the first day of January preceding the time of making such statement.
“The average value of such property shall be ascertained by taking the amount of such property on hand or under his or her control in each month of such year or such portion thereof as he or she may have engaged in such business then add the monthly amounts and divide the aggregate amount by the number of months he or she was engaged in such business during such year; and such statement shall be verified on oath as required in other cases: Provided, That the property so listed shall not be valued or assessed at any higher rate than other property.”
For the year 1974 the “freeport exemption” is set forth in K.S.A. 79-304 (Weeks 1969) which provides in part:
“. . . That personal property which (a) is moving in interstate commerce through or over the territory of the state of Kansas, or (b) is consigned to bonded and licensed warehouses or storage areas under the provisions of K.S.A. 82-161 to 82-171, inclusive, within the state of Kansas from outside the state of Kansas, for storage, shall be deemed not to have acquired a situs in the state of Kansas for purposes of ad valorem taxation if the warehouseman or operator of the storage area where such personal property is stored shall keep records of such property showing point of origin, date of receipt, type and quantity, date of withdrawal, and ultimate destination notwithstanding (1) that the final destination of said personal property is unknown a[t] the time of storage in Kansas or (2) that the interstate movement of the said personal property has been interrupted for not more than two (2) years by such storage in Kansas for reasons relating to the convenience, pleasure, or business of the shipper or owner of said property unless the ultimate destination of said property is within the state of Kansas: And provided further, That goods, wares, and merchandise stored as above described, if manufactured, assembled, joined, processed, packaged or labeled within this state are shipped to final destinations outside this state upon leaving such warehouses or storage areas shall be exempt from taxation in the same manner and for the same period of time while in such storage: And provided further, That in order to qualify personal property in any such warehouse or storage area for the exemption from taxation hereinbefore provided, the owner of such personal property must show by verified statement that the final destination of at least 35% of the sales or shipments from such warehouse or storage area during the previous calendar year were shipped in interstate commerce to a point outside the state of Kansas: And provided further, That the amount of exempt property shall be computed as follows: The owner shall furnish the county assessor with a report of the monthly average inventory for the preceding calendar year and a report of the value of shipments for final destination outside the state for each month of the previous calendar year. The owner shall be entitled to exemption of a percent of the average monthly inventory equivalent to the percent of value of total shipments to the value of shipments that were made in interstate commerce to points outside the state.”
K.S.A. 79-1005 provides for the ascertainment of the average monthly value of property of the next preceding year. Mr. Cloonan used the one day’s average gross sales figure for this purpose. He testified that one day’s average gross sales reflected the entire inventory. He testified authority to use one day arose from a directive from the Property Valuation Department.
The directive from the Director of the Property Valuation Department (January 21, 1971) states in part:
“It is the opinion of the Department that in determining the monthly average, K.S.A. 79-1002 and 1005 must be read in conjunction with other statutes which contemplate an appraisal of property on a basic date, and, the appraisal procedure used must result in the same type of appraisal for merchants and manufacturers stock as we have in the appraisal of other types of property. Therefore, the appraisal of merchants and manufacturers stock for ad valorem purposes must result in a value which has been determined to be a single average DAY within the assessment period (or calendar year), as it is for other property.”
The basic point of contention is whether one day’s gross sales equals actual inventory required by K.S.A. 79-1005.
Appeals from orders of the Board of Tax Appeals are governed by K.S.A. 74-2426, which in its last paragraph provides:
“No appeal may be taken to the district court from any order determining, approving, modifying or equalizing the assessment of property for property tax purposes unless such order is unreasonable, arbitrary or capricious. . . .”
In Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, 522 P.2d 923 (1974), this court found that the trial court improperly substituted its judgment for the Board of Tax Appeals:
“Matters of valuation and assessment are administrative in character and a determination of the Board of Tax Appeals acting within its legislative authority, when fairly and honestly made, is final, and courts will not interfere so as to usurp the Board’s function or substitute their judgment for that of the Board.” (Syl. 3.)
Accord, Cities Serv. Oil Co. v. Board of County Comm’rs, 224 Kan. 183, 578 P.2d 718 (1978); Masson, Inc. v. County Assessor of Wyandotte County, 222 Kan. 581, 567 P.2d 839 (1977).
The leading case on judicial review of administrative agencies is Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968):
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” (Syl. 1, 2.)
The Board found IBP to be a manufacturer with average daily sales of $1,500,000.00 but that it had nothing ever in process. The testimony was that live cattle arrive each morning, are slaughtered, and by the close of the second shift are in boxes or are hanging. The testimony was clear that approximately three days elapsed between the time the live animal arrives at the plant and the beef is shipped out. This is the so-called 3-day “roll-over” period.
The district court concluded that the average gross daily sales figure was not the equivalent of inventory required by K.S.A. 79-1005. Mr. Cloonan testified it was a fair equivalent in his opinion but does not give a logical, reasonable basis for this result. A simple analogy might be helpful. Assume 1,000 cattle go in one end of a barn each day and 1,000 processed carcasses go out the other end each day, but that it takes three days for any individual steer to make the trip through the barn. On any given day, then, 3,000 cattle or carcasses are in the barn. Gross sales would be for 1,000 carcasses. Under the Board’s findings, no processing would have occurred and the inventory in the barn would be 1,000 when in fact there were 3,000 cattle or carcasses on any given day.
IBP has its entire plant licensed as a warehouse. The Board found no processing occurs at the plant in spite of the fact that live cattle are received at the plant and converted to beef, either hanging or boxed, with sales of one and a half million dollars per day. Obviously, extensive processing occurred and the finding that no processing occurred is not supported by the evidence. The classification of a manufacturing or processing plant as a licensed warehouse does not pull the umbrella of the freeport exemption over the entire operation save intrastate gross sales of one day. As far as beef, hides, etc., for interstate sale are concerned, a proper determination must be made as to when processing begins and ends in determining inventory. On goods for intrastate shipment, the inventory cannot be determined on one day’s gross sales. The burden is on the manufacturer or processor to establish the claimed exemption and any alleged difficulty in providing adequate records does not defeat the statute and permit taxation on a non-statutory basis of taxpayer’s creation.
We conclude that the district court correctly found that the order of the Board was unreasonable, arbitrary, and capricious. The findings and conclusions of the district court are supported by the evidence and the law of Kansas.
The judgment remanding the matter to the Board for further proceedings is affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from an order admitting to probate the last will and testament of Clarence Victor Ziegelmeier on July 12, 1974. The appellants herein are Ayesha A. Watt, Sarah I. Protzman, Steuart A. Ziegelmeier, Carl Ernest Ziegelmeier, William R. Ziegelmeier, Vera M. Saddler and Dorothy Maye Metzler, children of the deceased and devisees under the will. The appellee is Victor H. Ziegelmeier (hereafter Victor), co-executor of the will and eldest son of the deceased to whom a substantial bequest was made.
The issues presented concern the testamentary capacity of the deceased at the time of execution; undue influence by Victor as the principal beneficiary; and ambiguity in the will itself.
Clarence Victor Ziegelmeier died on May 19,1974, at the age of 91. He was preceded in death by his wife, Josephine, on December 5, 1972. At the time of his death he owned seven quarters of farm land in Thomas and Sherman counties, appraised at $313,300; a home and several lots in Gem, Kansas; $27,000 in checking accounts; and various personal property.
During the last years preceding his death Clarence was unable and did not leave his home in Gem, Kansas. His leg had been crushed in an accident, and arthritis left him crippled. Following his discharge from the army Victor had returned home and entered the family farming business. From 1946 until 1949 he farmed the land with his brother Carl Ernest. Thereafter he farmed all of his father’s land with the help of his own family and paid his father a one-third crop rent. The trial court found Victor assisted the testator in conducting his business and was his father’s attorney-in-fact during the last year and one-half of his life.
On January 2, 1973, the testator gave Victor a typewritten power of attorney dated December 31, 1972, and told him to take it to the Farmers and Merchants State Bank in Colby, Kansas, to be notarized. Victor was told at the bank the document should be taken to an attorney. Victor then went to Mr. Gerald Stover who had been the testator’s attorney for over fifteen years. Upon reading the power of attorney Mr. Stover testified he realized the testator was attempting to make a disposition of his property after death and therefore phoned him to explain.
Mr. Stover prepared a new power of attorney, and he delivered it to the testator for his signature the next morning on January 3, 1973. When Mr. Stover arrived at the house all four of the testator’s daughters and his son, Victor, were present. Mr. Stover and the testator had a conference in the living room while the children remained in the kitchen. During this conversation the testator expressed a desire to have a will.
Mr. Stover testified the testator stated he wanted his property to be divided equally among his children, but he indicated Victor should be able to farm the land for ten years and have the option of buying it during this time period for $100 per acre. Mr. Stover then described the unfavorable federal estate tax consequences to the testator and persuaded him that a five year option was more reasonable.
Ten days later on January 13, 1973, Mr. Stover returned to the testator’s home with the will. Three of the appellants, Carl Ernest, Vera Saddler, and Ayesha Watt, were present. Victor and his family were in Denver, Colorado. During this visit Mr. Stover read and explained the terms of the will. Pertinent portions of the will provide:
“THIRD: For a period of five years from the date of my death, I grant unto my son, Victor H. Ziegelmeier, the right to purchase any part or all of my farm land for the sum of $100.00 per acre. The said Victor H. Ziegelmeier may exercise this option by giving notice in writing to the Co-Executor, William R. Ziegelmeier, at any time before the expiration of five years after the time of my death. In this connection, I direct that my estate be kept open until such time as my son Victor H. Ziegelmeier has either exercised this option or until five years have expired after my death. I direct that the said Victor H. Ziegelmeier be allowed to continue on as the farm tenant. In the event the option is exercised after a crop is planted and before it is harvested, the landlords share of the crop shall be prorated between my estate and my son, Victor, in accordance with the portion of the growing period which the land is owned by my estate and by my son.
“FOURTH: All the rest and residue of my estate, wherever situated, I give, bequeath, and devise unto my children; Ayesha A. Watt, Sarah I. Protzman, (Steuart) A. Ziegelmeier, Victor H. Ziegelmeier, Carl Ernest Ziegelmeier, William R. Ziegelmeier, Vera M. Saddler, and Dorothy Maye Metzler, share and share alike.”
All three of the children present made offers to buy the farm land for a greater price than the option to Victor in the will. While the testimony is conflicting, the children claim the testator instructed Mr. Stover to throw the will “in the wastebasket behind the stove.” Nevertheless, Mr. Stover returned the unsigned will to his office in Colby, Kansas.
On Monday, February 26, 1973, the testator telephoned Mr. Stover and requested he bring the will to Gem. Mr. Stover was unable to personally deliver the instrument but explained the procedure for execution. He then suggested Victor or someone should be sent to town to pick up the will. Thereafter Victor picked up the will and returned it to his father.
The next day the testator summoned three neighbors, Robert Moore, Maude Etherton, and Harold McGuire, as witnesses. All testified he explained to them why they were assembled in his home. He instructed all of them to read the will and showed them where to sign and date the instrument. In the presence of all the witnesses the testator initialed the spelling change of the name of his son Steuart; changed his place of residence from Colby to Gem; changed the day and month on the will; and signed the instrument. During this time Victor was preparing lunch in the kitchen and did not actively participate in the execution of the will. Victor then returned the will to Mr. Stover’s office where it remained until his father’s death.
Following the execution of his will, the testator told at least two of his children he had completed his last will and testament. He purportedly stated to them he had left his property equally to his children.
The testator’s gross estate was valued at $359,367.17. The preliminary estimate of expenses of administration and debts of the testator amounted to $26,249 and the federal estate tax totaled $68,437.82. The appellants contend on appeal, as they did at the trial level, if the 1,120 acres of farm real estate is sold to Victor for $112,000, it results in an actual gross estate of $154,562.17 and a distributable estate of $59,562.17. They claim the net result is they each realize a share of $7,484.32, while Victor’s share is worth the present value of the real estate plus his distributive share or $320,784.32.
The trial court found:
“19. The land owned by the deceased at the time he executed his will was a practical farming unit. He had spent many years in putting the unit together. He knew it was worth much more per acre to have the unit. He met the problem of equal distribution to each of his children and at the same time fixing a price Victor could pay. He fixed such a price. It did not give each child an equal share. The land, the problem, and the children were those of Clarence Victor Ziegelmeier. His solution was in the will. The fact others are not happy with his solution is unimportant.”
The court then concluded as a matter of law that the testator was of sound mind when he executed his will, and he was not under undue influence. It then determined the will was executed and witnessed according to Kansas law and sustained the order of the probate court admitting the will to probate. Appeal has been duly perfected.
The appellants first contend the testator did not comprehend the extent of his estate or the full nature and consequences of the instrument which he executed as his last will and testament on February 27, 1973.
It is the established rule in Kansas, the deceased possesses testamentary capacity if, on the date he executes the instrument which determines the manner in which the property will be disposed after death, he knows and understands the nature and extent of that property, has an intelligent understanding concerning the disposition he desires to make of it, realizes who his relatives are and the natural objects of his bounty, and comprehends the nature of the claims of those whom he desires to include and exclude in and from participation in his worldly effects after he has no further need for them. In re Estate of Harris, 166 Kan. 368, 372, 201 P.2d 1062 (1949); see also In re Estate of Barnes, 218 Kan. 275, 543 P.2d 1004 (1975); In re Estate of Perkins, 210 Kan. 619, 504 P.2d 564 (1972); In re Estate of Bernatzki, 204 Kan. 131, 460 P.2d 527 (1969).
Here the appellants argue the testator repeatedly stated he understood the disposition of his property to be equal among his children. They conclude because Victor was given the option to buy the farm at a price below the market value, the evidence clearly indicates the testator did not understand the value of his property or the effect of his disposition.
The trial court heard an abundance of testimony on this issue. The evidence revealed the testator told his neighbor, Mrs. Irene Fowler, he intended to let Victor buy his land at a price below market value during the summer before his wife died. Mr. Stover, the testator’s attorney, testified when he advised Mr. Ziegelmeier the other children would not like the arrangements in the will, the testator responded he might not leave them anything. All of the witnesses to the will testified the testator was fully alert at the time of execution and well able to explain the provisions in the will to them. Moreover, none of the appellants testified the testator lacked sound mind; instead, they said he suffered from depression and old age.
We hold the evidence is undisputed, at the time the testator executed his will, he knew what property he owned; he knew his children’s desires; and he knew he wanted his son Victor to have the right to buy his land after his death. Substantial competent evidence exists to support the findings of the trial court as to the testator’s capacity.
Next the appellants assert Victor H. Ziegelmeier was guilty of undue influence. Specifically they contend Victor was almost constantly in their father’s company, and he alone advised their father in his personal and business affairs.
Generally, undue influence or fraud, to invalidate a will, must amount to coercion, compulsion or constraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own, and it must be brought to bear directly on the testamentary act. In re Estate of Carothers, 220 Kan. 437, 443, 552 P.2d 1354 (1976); see also In re Estate of Hall, 165 Kan. 465, Syl. 8, 195 P.2d 612 (1948). Of course, the burden of proof is on the party claiming undue influence. In re Estate of Carothers, 220 Kan. at 443. Legitimate influence is not improper; that is, influence obtained by kindness and affection will not be regarded as undue. Creighton v. Creighton, 261 F. 333, 335 (8th Cir. 1919).
The appellants have failed to provide this court with evidence of undue influence. Although there was evidence that Victor was kind and affectionate toward his father, there was no evidence that fraud was practiced by him. The mere fact Victor enjoyed a close relationship with his father and farmed his father’s land does not amount to undue influence. Thus, substantial competent evidence exists to support the trial court’s decision that the testator did not lack testamentary capacity due to undue influence when he executed his will on February 27, 1973.
Finally, the appellants contend various provisions of the will are ambiguous. They ask this court to rewrite the will by deleting paragraph three which gives Victor the option to buy the farm land. This we cannot do.
We stated the rules for construction of a will in Russell v. Estate of Russell, 216 Kan. 730, Syl. 1, 534 P.2d 261 (1975) as follows:
“In construing a will courts must (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.”
See also In re Estate of Lehner, 219 Kan. 100, 103, 547 P.2d 365 (1976); In re Estate of Hannah, 215 Kan. 892, 897, 529 P.2d 154 (1974); In re Estate of Ricklefs, 211 Kan. 713, 716, 508 P.2d 866 (1973); In re Estate of Graves, 203 Kan. 762, Syl. 3, 457 P.2d 71 (1969); In re Estate of Porter, 164 Kan. 92, 187 P.2d 520 (1947).
Here the testator’s intention is clear and no ambiguity exists in the instrument. This court has no basis for applying the rules of construction, and the will must be upheld as written.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
PRAGER, J.:
This is a direct appeal from convictions of first-degree murder (K.S.A. 21-3401), aggravated burglary (K.S.A. 21-3716), and felony theft (K.S.A. 21-3701). The essential facts in the case are as follows: On the evening of September 11, 1976, Malinda Hildebrand and her husband, Eugene, returned from nearby Yates Center to their home in Burlington, Kansas. During the trip Eugene fell soundly asleep in the back seat of the family automobile. Arriving at their home around midnight, Malinda Hildebrand parked the car in the driveway and went into the house to put their fifteen-month-old baby to bed. It is unknown whether she attempted to awaken her husband before retiring for the evening; there was testimony at the trial that Eugene Hildebrand was difficult to awaken when asleep. At 3:30 a.m., Eugene Hildebrand awoke and entered the house. Several lights were on inside the house and all of the doors were unlocked. Although he noticed that his guns were missing from their rack, he assumed that his wife had taken them down to dust. When Eugene Hildebrand entered the couple’s bedroom, he discovered that his wife was dead. After checking the baby, who was unharmed, he discovered blood on the sheets and called the police. A later autopsy disclosed that Malinda Hildebrand had been strangled to death. An electric clock on the floor near the bed was stopped at 1:55 a.m. The cord was removed from the wall socket and broken in two. A laboratory analysis revealed blood and skin tissue on the cord. The victim’s wedding and engagement rings had apparently been removed from her finger by her assailant. A search of the house revealed that four guns belonging to Mr. Hildebrand were missing. A car matching the description of the automobile of the defendant, Darrel Joseph Gourley, was observed parked near the Hildebrand home on the evening Mrs. Hildebrand was strangled.
On September 12, 1976, within nine hours following the murder, a state game protector employed by the Kansas Fish and Game Commission stopped the defendant and his half-brother, David T. Parker, near Garnett, Kansas. In checking a shotgun in their possession to see if it conformed with federal law concerning shell capacity, the game protector made a note of the serial number of the gun. It was later determined to be one of the guns taken from the Hildebrand home earlier that morning. The two brothers were stopped in a car matching the description of the car seen near the Hildebrand house the night before. On September 23,1976, an Ottawa, Kansas, police officer noticed two men'with a high-powered rifle in the trunk of their car. Parker and another man agreed to let the police examine the rifle. A comparison of the rifle serial number with the list at the police station later in the day revealed that the rifle was one of those guns stolen from the Hildebrand residence. After being arrested for possession of stolen property, Parker told police that he had obtained the rifle from the defendant and directed the police to a barn near Garnett, Kansas, where the defendant had hidden the guns. There, additional weapons were discovered and identified as having been taken from the Hildebrand residence on the night of the murder.
The testimony at the trial showed that the defendant Gourley had given the police three contradictory accounts as to how he had happened to come into possession of the stolen weapons. He admitted that he had been in Burlington on the night of the murder. Both David Parker and the defendant’s mother told the police that the defendant had given her wedding rings similar to those taken from Mrs. Hildebrand. The defendant’s mother testified that she had thrown the rings into a nearby lake. The defendant was arrested and charged with the crimes of first-degree murder, aggravated burglary, and felony theft. An additional count of attempted rape was dismissed. Following his conviction, the defendant appealed to this court claiming trial errors.
The defendant’s first point on appeal is that the trial court erred in admitting into evidence a video-tape deposition of a Missouri woman who identified the defendant as the same person who had forced his way into her home at knife point on September 21, 1976, just ten days after the strangulation of Mrs. Hildebrand. The deposition was taken at the county courthouse in Clinton, Missouri, five days prior to the trial. The witness was unavailable at the trial because of the expected birth of her child. The woman testified that upon the defendant entering her home, he inquired if she had any guns and attempted to rape her. In the attempted rape, he used a piece of electric cord around her neck to choke her. She persuaded him not to take her wedding ring. In lieu thereof, the defendant took a pair of diamond earrings and left the home. At the state’s request, this video-tape deposition was admitted into evidence under the authority of K.S.A. 60-455 to prove identity and plan. Prior to the introduction of the deposition, the trial court held a hearing outside the presence of the jury to determine the admissibility of the deposition. The court viewed the video tape and followed the testimony on a certified copy of the transcript prepared by a court reporter. The trial court admitted the testimony after determining that the testimony was relevant to prove identity and plan and that its probative value outweighed its prejudicial effect. Before the viewing of the tape by the jury and again in its final instructions, the court gave an instruction that the evidence of the Missouri crime was being admitted for the sole purpose of proving, or tending to prove, the identity of Mrs. Hildebrand’s assailant and to prove a plan. The defendant’s objection to the admission of this deposition into evidence was overruled.
The only real issue in this case was the identity of the assailant. We have concluded that the video-tape deposition was properly admitted to prove identity under K.S.A. 60-455. In State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), we discussed in depth the admissibility of other crimes evidence to provide identity. In syllabus 5 of the opinion we stated:
“Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. It is not sufficient simply to show that the offenses were violations of the same or a similar statute.”
We have examined the circumstances of the Missouri crime covered by the video-tape deposition and are satisfied that the evidence disclosed sufficient similarity between that crime and the crime for which the defendant was on trial, to raise a reasonable inference that the same person committed both of the offenses, and was, therefore, admissible to prove identity. In both cases, a lone assailant attacked a young woman alone in her home. In both cases, a bluish-green Ford automobile was parked a short distance away from the house of the victim. In both cases, a cord was wrapped around the victim’s neck and the assailant sought or forcibly took guns and diamond jewelry. The two crimes occurred within a period of ten days. Under the circumstances we find no error in the trial court’s ruling admitting into evidence the video-tape deposition to prove identity. However, we cannot agree that the Missouri crime was admissible to prove a plan directed toward the doing of the offense charged.
In State v. Marquez, 222 Kan. 441, 565 P.2d 245 (1977), Chief Justice Schroeder points out that it is easy to confuse the requirements underlying the plan and identity exceptions to 60-455. In the opinion he states as follows:
“. . . Plan refers to an antecedent mental condition that points to the doing of the offense or offenses planned. The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. Strictly speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.
“Something more than doing similar acts is required to have probative value in showing plan, because the object is not merely to negative an innocent intent or show identical offenses, but to prove the existence of a definite project directed toward the doing of the offense charged. . . .” (pp. 446-447.)
In this regard see also M.C. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 (1972); and M.C. Slough, Other Vices, Other Crimes: Kansas Statutes Annotated Section 60-455 Revisited, 26 Kan. L. Rev. 161, 163 (1978).
In our judgment, it was technically error for the trial court to admit the evidence of the Missouri crime to prove a plan leading to the present crime. We have concluded, however, that under the standard of K.S.A. 60-261, the admission of the other crimes evidence to show plan did not prejudice the substantial rights of the defendant, since the evidence was clearly admissible on the issue of identity. In light of the strong circumstantial evidence of guilt presented in this case it is clear to us that the admission of the evidence of the Missouri crime to show plan as well as identity must be considered as harmless error.
The second point on the appeal concerns certain testimony of Sheriff Freeman regarding his conversation with David T. Parker, the defendant’s half-brother. In his testimony at trial, the sheriff reviewed in some detail his conversation with Parker concerning Parker’s possession of one of the weapons stolen from the Hildebrand residence. Parker asked the sheriff what had happened and the sheriff then testified before the jury as follows:
“Q. What did you tell him?
“A. I told him that there had been a lady murdered where these guns were stolen.
“Q. What was his response to that?
“A. His response, exact words?
“Q. Yes.
“A. I told him — he asked me what had happened, like I said, and I told him that a lady had been murdered during the process of stealing these guns and he said, ‘The son-of-a-bitch done it.’ I said, ‘Who do you mean?’ He said, ‘Darrel.’ I said, ‘Why, you weren’t present, you told me you wasn’t with him.’ And he says, 7 know him,’ and he said, ‘He done it.’
“Q. Now, were you absolutely sure that, in the course of the conversation, he was referring to his brother?
“A. Yes, sir.”
This testimony went into evidence without objection from the defendant. The following day, however, the trial court on its own motion made the determination that the testimony should be excluded from the consideration of the jury. The trial court directed the jury’s attention to the testimony and instructed the jury that the testimony was stricken from the record as improper and should be disregarded. The record shows that following this admonition to the jury, defense counsel neither made further objection nor moved for a mistrial.
This portion of the testimony given by Sheriff Freeman concerning his interview with Parker was obviously inadmissible since it, in effect, was simply an expression by Parker of his opinion that the defendant, Darrel Gourley, had murdered Mrs. Hildebrand and stolen the guns. We have concluded, however, that the admission of the testimony was harmless error. The defendant did not object to the testimony and the trial court struck the testimony and instructed the jury to disregard it. Under all of the circumstances, and in view of the strong evidence of guilt, we have concluded that the admission of this testimony could not have affected the outcome of the trial and does not require the granting of a new trial.
The final point raised on the appeal by the defendant is that the trial court erred in failing to admonish the jury as to its conduct during separations each and every time a recess was taken. The record in the case shows clearly that immediately after the jury was sworn to try the case, the court instructed the jury as to its conduct during separations using the language required by K.S.A. 22-3420. In this initial admonition, the trial court instructed the jury that the admonition should apply during the trial of the case whenever the jury was separated. Although the trial court thereafter did not admonish the jury at every recess that was taken during the trial, the admonition was given at least once every day of the trial and on at least half of the occasions when a recess was taken. While the better practice is for the trial judge to admonish the jury or to refer to its prior admonition prior to every recess, the failure of the court to do so is not prejudicial error. This is especially so in the absence of a showing of any misconduct on the part of the jurors. (State v. Ralls, 213 Kan. 249, 515 P.2d 1205 [1973].)
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a conviction of aggravated battery on a law enforcement officer (K.S.A. 21-3415). The defendant, Donald L. Coleman, was sentenced to a mandatory minimum sentence under K.S.A. 1976 Supp. 21-4618, since a firearm was used in the commission of the crime.
This prosecution arose out of an alleged shoplifting incident which occurred on October 4,1976, at a Woolco department store in Wichita. The factual issues were hotly contested. Since the trier of fact chose to adopt the state’s version of the facts, we will assume that the state’s evidence is true for purposes of the appeal. At the time of the incident, officer Kenneth J. Fuson was working as a part-time employee at the Woolco department store. Fuson, who commonly worked as a full-time police officer for the city of Wichita, was employed during off-hours by the store to look for and apprehend shoplifters. Fuson had been working for the Wichita police department for fourteen months; he had worked for Woolco for less than two weeks. To enable him to move about the store inconspicuously, Fuson was dressed in faded blue jeans, a T-shirt, a jeans jacket, and brown boots. Fuson had on his person a billfold containing his badge and a police identification card, as well as a revolver and a set of handcuffs. The state’s evidence showed that officer Fuson observed Coleman enter the store walking very quickly. Fuson followed Coleman and observed him squatting in front of some clothing shelves, leaning backwards, and stuffing a dark-colored article in the front of his pants. After Coleman stood up, Fuson observed him “pulling and pushing at his groin area, around his belt.” Coleman walked away at a very fast pace, looking from left to right. After walking through several departments at a quick pace, Coleman went out of the store without going through the pay counter with Fuson running in hot pursuit. Just outside the door, Fuson placed his hand on Coleman’s right shoulder and began taking his police identification out of his pocket. As Fuson did this, he looked Coleman straight in the eye and said, “I am a Wichita Police Officer. You are under arrest for shoplifting and it will be necessary for you to come back inside.” Coleman replied, “No, I am not.” Before Fuson was able to remove his billfold from his pocket, Coleman began resisting. A struggle ensued. Fuson testified that he again advised Coleman he was under arrest and again identified himself to Coleman as a police officer. Coleman, with Fuson holding on to him, went to the back of his car, opened the trunk, and grabbed a snub-nosed pistol from the trunk. With the pistol in Coleman’s hand, the men struggled. The pistol discharged and Fuson was struck by a bullet in his right hand. A second shot was fired into the pavement. Another police officer, Snyder, ran toward Fuson and Coleman. Coleman got into the car and drove away despite Snyder’s command to stop the car. Officer Fuson obtained the license number of the departing car. Coleman was later apprehended at a residence in Wichita.
As his first point on appeal, the defendant challenges the application of K.S.A. 21-3415 to a battery committed upon an off-duty police officer employed as a private security guard. K.S.A. 21-3415 provides as follows:
“21-3415. Aggravated battery against a law enforcement officer. Aggravated battery against a law enforcement officer is an aggravated battery, as defined in section 21-3414, committed against a uniformed or properly identified state, county, or city law enforcement officer while such officer is engaged in the performance of his duty.
“Aggravated battery against a law enforcement officer is a class B felony.”
Assuming the state’s version of the evidence to be correct, it is clear that defendant Coleman committed an aggravated battery against officer Fuson. However, for the defendant to be convicted of the offense of aggravated battery against a law enforcement officer, the state was obligated to show that the aggravated battery was committed against a properly identified state, county, or city law enforcement officer while such officer was engaged in the performance of his duty.
We have no difficulty in finding that officer Fuson was a law enforcement officer within the meaning of K.S.A. 21-3415. In that regard, we note the term “law enforcement officer” is defined in the general definition section of Kansas Criminal Code, K.S.A. 21-3110(10) as follows:
“(10) ‘Law enforcement officer’ means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes.”
Since officer Fuson was regularly employed as a police officer by the city of Wichita, he was a law enforcement officer within the meaning of 21-3415. The state’s evidence established that, although he was not in uniform, officer Fuson advised Coleman that he was a Wichita police officer at the time Fuson first placed his hand on Coleman’s right shoulder just outside the door of the department store. Under this evidence, Fuson had been “properly identified” as a law enforcement officer to Coleman prior to the time the aggravated battery was committed.
The question which remains to be determined is whether Fuson was “engaged in the performance of his duty” as a law enforcement officer at the time the aggravated battery took place. Although convictions under 21-3415 have been before this court for review on several occasions, we have not addressed the specific issue raised here. (State v. Gander, 220 Kan. 88, 551 P.2d 797 [1976]; State v. Greene, 214 Kan. 78, 519 P.2d 651 [1974].) In State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972), a highway patrol officer was off duty at his home in the late evening. The defendant complained to the officer concerning traffic tickets issued by the officer to defendant’s employees. A heated argument ensued and ultimately the defendant struck the officer. The highway patrol officer was not in uniform when confronted by the defendant. The defendant was charged with aggravated battery against a law enforcement officer and was convicted of the lesser offense of battery against a law enforcement officer. (K.S.A. 21-3413.) No issue was raised claiming that the highway patrolman was not engaged in the performance of his duty at the time the aggravated battery occurred.
Four jurisdictions have ruled upon the question of whether a policeman who is working as a private security guard is engaged in the performance of his duties so as to make applicable a statute making it an offense to commit an assault or battery upon a law enforcement officer. People v. Hooker, 254 Cal. App. 2d 878, 62 Cal. Rptr. 675 (Ct. App. 1967), presented a factual situation quite comparable to the one presented in this case. There a police officer, who worked as a part-time store employee in detecting and apprehending shoplifting, observed the defendant engaged in removing various store items and secreting them on his person. The officer was hit and kicked several times after announcing to defendant, outside the store, that the officer was a police officer and that defendant was under arrest for shoplifting. The court held that the police officer was engaged in the performance of his duties under a California statute making battery knowingly committed against a peace officer engaged in the performance of his duties a felony. Although Hooker was disapproved in People v. Curtis, 70 Cal. 2d 347, 74 Cal. Rptr. 713, 450 P.2d 33 (1969), the California Supreme Court’s disapproval extended only to the implication in Hooker that a person cannot resist an unlawful arrest. In People v. Townsend, 20 Cal. App. 3d 688, 98 Cal. Rptr. 25 (Ct. App. 1971), the California Court of Appeals held that a police officer, working as a part-time security guard at a high school dance, was a peace officer engaged in the performance of his duties within the meaning of the statute construed in People v. Hooker, supra. In Townsend, the officer’s duties were to maintain peace at the dance and to assist the school officials in keeping out intruders who were not members of the student body. The police officer was in uniform and armed, but was being paid by the school.
The Wisconsin Supreme Court dealt with the issue in Williams v. State, 45 Wis. 2d 44, 172 N.W.2d 31 (1969), where the police officer was driving his private car and noticed a crowd of people standing around two men in a fight. The officer was off duty but had on his uniform following his serving as a private guard at a wedding. The officer was struck by defendant when he attempted to stop the fight. The Wisconsin court held that as soon as the police officer took action to stop the fight he was no longer off duty. In his attempt to preserve public peace and order, the police officer was acting within the scope of his official duties. Hence, the conviction of battery to a police officer was upheld.
There are two pertinent Oklahoma decisions. In Stewart v. State, 527 P.2d 22 (Okla. Crim. App. 1974), the Oklahoma Court of Criminal Appeals held that an off-duty police officer, working as a part-time security guard for an apartment complex, was riot a police officer in the performance of his duties for the purpose of charging the defendant with the crime of aggravated battery upon a police officer. The police officer was not wearing his official police uniform and was not armed. The police officer observed the defendant and another male knocking on an apartment door and window. Having knowledge that the apartment was unoccupied, the officer approached and asked the men for identification. Defendant refused and started walking toward his pickup. The police officer followed, identifying himself as a police officer and displaying his badge. The defendant struck the officer, knocking him to the ground. The Oklahoma Court of Criminal Appeals held that the evidence was not sufficient to establish that the officer was in the performance of his police duties at the time of the altercation. In the later case of Brooks v. State, 561 P.2d 137 (Okla. Crim. App. 1977), it was held that an off-duty police officer, in uniform and not working as a private security guard, was a police officer acting in the performance of his duties where he observed the defendant’s vehicle being operated in such a manner that it resulted in a disturbance of the peace. The police officer was engaged in making an arrest of the defendant when assaulted. It was held that the officer, although off duty, was not acting under the employment of a private enterprise, but was acting for the benefit of the public in general in maintaining peace and order.
Several Texas decisions dealing with the issue take the position that a police officer is on duty twenty-four hours per day and therefore is acting within the performance of his duties under the statute defining the offense of aggravated assault upon a peace officer when the officer is assaulted while in the course of arresting the defendant for misdemeanors such as being drunk in a public place or breach of the peace. (Thompson v. State, 426 S.W.2d 242 [Tex. Crim. App. 1968]; Monroe v. State, 465 S.W.2d 757 [Tex. Crim. App. 1971]; Wood v. State, 486 S.W.2d 771 [Tex. Crim. App. 1972].) In the only recent Texas decision finding that an officer was not engaged in the performance of his duties, the Texas Court had before it an incident where the police officer was confronted by the defendant, who complained that the officer had dented his car. The officer, who had been attending a training session at the courthouse, was not in uniform and was driving his personal car. The officer identified himself as a police officer, told the defendant to stop bothering him, and began writing down the license number of the defendant’s car. An assault thereafter resulted. Although holding that the on-duty/off-duty distinction was not important, the court stated that the officer’s argument with the defendant was a private rather than an official act. (Morris v. State, 523 S.W.2d 417 [Tex. Crim. App. 1975].)
We have concluded that, under the factual circumstances in the present case, officer Fuson was engaged in the performance of his duty as a law enforcement officer at the time the aggravated battery was committed against him by the defendant. Here the aggravated battery occurred after the police officer had identified himself as such and while the officer was in the process of arresting the defendant for a crime committed in the officer’s presence. We hold that a police officer who is working during his off-duty hours as a part-time store employee in detecting and apprehending shoplifters, who observes a customer secreting merchandise on his person, who identifies himself as a police officer to the customer outside the store, and who advises the customer that he is under arrest for shoplifting, is a law enforcement officer “engaged in the performance of his duty” within the provisions of K.S.A. 21-3415.
We have also considered the other points raised by the defendant on the appeal and find them to be without merit. We hold that the evidence was sufficient to sustain a conviction of aggravated battery against a law enforcement officer under K.S.A. 21-3415. We further hold that the trial court did not commit error in denying defendant’s motion for a new trial on the basis of newly discovered evidence. The defendant claims that K.S.A. 1976 Supp. 21-4618, which requires the mandatory minimum sentence where a firearm is used in the commission of an Article 34 crime, is unconstitutional because it creates cruel and unusual punishment and violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. These issues were determined adversely to the defendant’s position in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1977) and in State v. DeCourcy, 224 Kan. 278, 580 P.2d 86 (1978). Furthermore, this court held that K.S.A. 1976 Supp. 21-4618 precludes the trial court from ordering a suspended sentence in cases where that statute is applicable. (Esters v. State, 1 Kan. App. 2d 503, 571 P.2d 32 [1977]; State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 [1978].)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal and cross-appeal from a judgment determining the priority of liens on a mobile home and ordering a sale thereof to satisfy such liens. The plaintiff Bertha Reimer owned and operated a trailer park. The mobile home in question was purchased by Marian Kramer, now deceased, who located the mobile home in the trailer park under authority of an oral lease calling for monthly rent payments. Marian Kramer purchased the mobile home with money borrowed from the defendant Ena Lee Davis. Kramer executed and delivered a note and chattel mortgage to Davis. The chattel mortgage was properly recorded prior to or at the time the mobile home was moved into the trailer park. Rent payments for the leased space fell due and remained unpaid. Payments on the note and chattel mortgage became due and remained unpaid.
Bertha Reimer, the owner of the trailer park, sued Ena Lee Davis as the beneficial owner of the mobile home to recover rental payments. The defendant Ena Lee Davis filed an answer denying liability for the rental payments, asking that the administrator of the estate of Marian Kramer, deceased, be brought in as a third party defendant, and claiming superior rights in the mobile home by reason of the recorded chattel mortgage.
This action was originally filed in the magistrate court. When the attorneys and the parties appeared for trial the magistrate expressed an opinion that the attorneys should settle the case. A written stipulation was prepared and signed by the attorneys fixing the unpaid amounts due the respective parties, authorizing a sale of the mobile home and granting a first lien to plaintiff for rentals due. A judgment was entered by the court on the stipulation of the attorneys. Apparently the attorney for defendant Ena Lee Davis did not seek or obtain her approval to the settlement stipulation. Two days later an appeal was perfected by the defendant Davis to the district court.
In the district court amended pleadings were filed. The plaintiff filed a motion to dismiss the appeal based on the provisions of K.S.A. 61-2101 and in response the defendant filed her affidavit setting forth the circumstances under which the stipulation was filed and the judgment was entered in the magistrate court. In the affidavit defendant stated that the stipulation was signed by her attorney and the judgment was entered without her consent or authority and that she openly objected to the case being concluded by agreement. In the affidavit she further stated that another attorney from the same firm had previously advised her that her lien under the chattel mortgage took precedence over plaintiff’s rent claim, and that she so advised the attorney who appeared to represent her at the trial.
The district court overruled the motion and tried the case de novo. It determined the respective amounts due the parties, ordered the mobile home sold to satisfy the judgments and concluded the plaintiff had a first and prior lien based on her rent claim which should be satisfied first out of the proceeds from a sale of the mobile home. In entering the judgment the trial judge on the record stated:
“Now, I’m going on the same theory as the old oases where you took your car into a garage to have it worked on and didn’t pay the garage man. I remember there were a lot of oases that held that the garage man’s charges came ahead of a chattel mortgage on the car, so I am going to adopt that same theory here as far as concerns rental space on the mobile home. I don’t know whether that’s the law or not, but I’ll liken it to that and perhaps make some law. I really think it’s logical and I think it’s fair, and that’s what I am going to do.”
On appeal the defendant Davis raises one point. She contends the trial court erred in imposing a lien for rent owed and in giving that lien priority.
On cross-appeal the plaintiff Reimer contends the judgment by stipulation in the magistrate court was not appealable under K.S.A. 61-2101(1) and the district court erred in failing to dismiss the appeal.
We will consider the cross-appeal first.
K.S.A. 61-2101(1) provides:
“Any party to a civil action pursuant to this chapter may appeal from:
“(1) A final judgment, except a judgment rendered on confession;”
Cross-appellant argues the judgment entered on stipulation in the magistrate court was a “judgment rendered on confession” and an appeal therefrom is precluded by the foregoing statute. We do not agree that the judgment was entered on confession.
A judgment on confession was a creature by statute in Kansas. See G.S. 1949 60-3110, et seq., and G.S. 1949 61-105. The former statute was repealed on January 1,1964, and the latter statute was repealed on January 1, 1970. We have no procedural statute which now recognizes judgments on confession as previously authorized. The last vestige of the statutory judgment on confession appeared in K.S.A. 61-105 (Corrick). It related to civil procedure before justices of the peace and stated that any debtor could appear before a justice of the peace without process and confess that he was indebted to another. In such case the statute provided on application of the creditor judgment against the debtor could be rendered on such confession. This statute and G.S. 1949 60-3110, et seq., were rarely, if ever, used.
When the present statute governing appeals from courts of limited jurisdiction (effective January 1,1970) was adopted by the legislature the old statute providing for judgments on confession was repealed on the same date. See Laws of Kansas 1969, Ch. 290, Sec. 61-2101, p. 758, and Sec. 61-2606, p. 786. In preparing K.S.A. 61-2101(1) the drafters of the Code of Civil Procedure for Limited Actions apparently failed to delete the reference to a judgment rendered on confession. K.S.A. 61-105 (Corrick), which authorized judgments by confession, was repealed in the same act. Suffice it to say, Kansas no longer has a statutory provision for judgments by confession and the phrase “except a judgment rendered on confession” appearing in K.S.A. 61-2101(1) no longer has any force and effect.
The cross-appellant further argues that defendant Davis stipulated and consented-to the judgment and by doing so she acquiesced in the judgment, waived any right to appeal, and is estopped to pursue the action further. We disagree.
Cross-appellant cites Perrine v. Perrine, 144 Kan. 219, 58 P.2d 1080 (1936), In re Estate of Hill, 179 Kan. 536, 297 P.2d 151 (1956), and Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773 (1964), in support of such argument. The cases are not persuasive under the facts of the present case.
Although the general rule is that a party is bound by a judgment entered on stipulation or consent and may not appeal from a judgment in which he or she has acquiesced there is a well-recognized exception in those cases when the party attacks the judgment because of lack of consent or because the judgment deviates from the stipulation or when the party’s attorney had no authority to settle the case and did so without the agreement and consent of his client. (Anno. Consent Judgment — Appellate Review, 69 A.L.R.2d 755; Edwards v. Cary, 20 Kan. 414 [1878]; Swift & Co. v. United States, 276 U.S. 311, 72 L.Ed. 587, 48 S.Ct. 311 [1928].)
It would appear the better vehicle to use to challenge a consent decree on the narrow grounds constituting the exception in the above rule would be a motion for relief from the judgment. Such a motion could be filed in the court entering the consent judgment. See K.S.A. 60-260(¿>), (3) or (6). This procedure is adopted by reference for courts of limited jurisdiction. See K.S.A. 61-1725. See also Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966), in which a motion for relief was filed under Federal Rule 60 (b) to challenge a consent to entry of a judgment. The fact that a motion under K.S.A. 60-260(b) is a better remedy in such a case does not make it the exclusive remedy. Where the consent judgment is questioned on appeal to the district court from a court of limited jurisdiction we see no reason why the matter cannot be properly presented and decided before conducting the trial de novo as was done in the present case.
We have previously considered the nature and extent of an attorney’s authority in handling a client’s case. It has been recognized generally that a client is bound by the appearance, admissions, and actions of counsel acting on behalf of his client. (Meyer v. Meyer, 209 Kan. 31, 39, 495 P.2d 942 [1972].) The rule is limited, however, to control over procedural matters incident to litigation. The client has control over the subject matter of litigation. (Giles v. Russell, 222 Kan. 629, 635, 567 P.2d 845 [1977].) An attorney has no authority to compromise or settle his client’s claim without his client’s approval. (Jones v. Inness, 32 Kan. 177, 4 Pac. 95 [1884]; Rickert v. Craddock, 98 Kan. 143, 157 Pac. 401 [1916]. See also Sette v. Sette, 132 Kan. 375, 295 Pac. 1096 [1931], and 7 Am. Jur. 2d, Attorneys at Law § 128, pp. 128-129.)
The affidavit of defendant Davis filed in opposition to plaintiff’s motion to dismiss the appeal sets forth sufficient facts to support a finding by the trial court that defendant did not consent to the stipulation, that she did object to the matter being concluded by such an agreement and that her attorney at the hearing before the magistrate settled her claim against her best interests and without her approval. The district court did not err in denying plaintiff’s motion to dismiss. The case is affirmed on the cross-appeal.
We turn now to the appeal. Did the trial court err in concluding that plaintiff-appellee had a lien on the mobile home for rent that was superior to the defendant-appellant’s lien evidenced by the pre-existing chattel mortgage? We believe it did.
As indicated at the outset of this opinion the trial judge likened the obligation for rent due for space occupied by the mobile home to a garageman’s lien. Apparently the judge was referring to the provisions of K.S.A. 58-201 which impose a lien under certain circumstances for work, repairs or improvements on personal property, vehicles and the like.
The appellee makes no argument on this point. In her brief she states:
“. . . She believes that the point on appeal presented by her as Cross-Appellant is dispositive of all issues in this case, and therefore, stands on the decision of the trial court with respect to Appellant’s point on appeal.”
The appellant in her brief argues this case falls under K.S.A. 58-2567(a) which reads:
“(d) Except as otherwise provided in this act, a lien or security interest on behalf of the landlord in the tenant’s household goods, furnishings, fixtures and other personal property is not enforceable unless perfected prior to the effective date of this act.”
During the oral arguments attorney for appellee conceded that the lien created by filing the chattel mortgage of record prior to moving the mobile home into the trailer park was superior to the rent claim of appellee. We believe appellee properly made this concession. K.S.A. 58-201 does not impose a lien for unpaid rentals due for possession and use of space in a trailer park under a month to month oral agreement. We find no statutory authority for such a lien under the residential landlord and tenant act, K.S.A. 58-2540, et seq. Accordingly we hold the trial court was in error in granting the plaintiff a first lien on the mobile home. The judgment is reversed on appeal and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendants-appellants George Howard (hereafter George) and Charles Howard (hereafter Charles) from numerous jury convictions.
George and Charles were originally charged in a twenty-five count information along with their brother, Donald Wayne Howard, and mother, Alma Howard. Two counts were dismissed prior to trial on motion of the defendants.
George was charged in twenty-two of the remaining twenty-three counts and was convicted of four counts of forgery (K.S.A. 21-3710), seven counts of burglary (K.S.A. 21-3715), one count of aggravated burglary (K.S.A. 21-3716), five counts of felony theft and three counts of misdemeanor theft (K.S.A. 21-3701), and two counts of possession of forgery devices (K.S.A. 21-3714).
Charles was charged in ten of the twenty-three counts and was convicted of one count of forgery (K.S.A. 21-3710), two counts of burglary (K.S.A. 21-3715), three counts of theft (K.S.A. 21-3701), and two counts of possession of forgery devices (K.S.A. 21-3714).
Donald Wayne Howard was charged with one count of theft and one count of possession of forgery devices and convicted of one count of misdemeanor theft. Alma Howard was charged in the same two counts as Donald and was found not guilty on both counts. Donald is not a party to this appeal.
Both George and Charles have raised the same points on appeal and filed identical briefs and their appeals will be considered together.
This case began September 29, 1975, when the two appellants, and two other individuals, attempted to cash a forged check for $160.00 at the Fourth National Bank & Trust Company in Wichita. The teller, who had been alerted to watch for certain stolen checks, called her supervisor who then called the police. Shortly thereafter, police officers arrived and arrested appellants for writing and issuing a forged check. As an incident to the arrest, police recovered from appellants’ car several items, including a checkbook and leather case belonging to Martin Dondlinger, Jr., a union card in the name of Michael K. Yeager, several checkbooks and an envelope, containing stock certificates, with the name Mark Ritter on the back.
Police ascertained that these items matched property reported as recently stolen from the residences of Dondlinger, Ritter and Yeager. Appellants were arrested and thereafter detectives obtained a warrant to search appellants’ residence at 1518 North Hillside, Wichita. Listed on the warrant were items reported stolen from the Ritter and Dondlinger residences. Stock certificates, a television set, a watch and personal checks of Ritter, listed on the search warrant, were seized by the officers. Also seized and introduced at trial were insurance papers, checkbooks, savings account books, various identification cards, a passport, a pistol, a leather coat and various other items not specifically listed on the warrant.
In their first point on appeal, appellants assert that instructions seven through thirteen are ambiguous and unclear. These instructions set forth the elements of the numerous different crimes charged along with the counts involved. Appellants claim that since there were four defendants the court should have included in each instruction the names of the defendants charged with that particular offense. Instructions seven and eight referred to “the named defendants”; nine, “the named defendant”; ten, “various defendants”; eleven “certain defendants”; and twelve and thirteen, “the defendants or part of them.”
Instruction number one includes the full content of each count as stated in the information and the defendants allegedly involved in each count are clearly identified. Instructions seven through thirteen are the standard PIK instructions for each offense charged in the information. When read alone, instructions seven through thirteen might be subject to criticism as not setting out with sufficient specificity the particular defendant charged with that offense. However, these instructions are not to be read in isolation.
“The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions given in the case.” State v. Childers, 222 Kan. 32, Syl. ¶ 5, 563 P.2d 999 (1977); State v. Ingram, 211 Kan. 587, Syl. ¶ 5, 506 P.2d 1148 (1973).
When instructions seven through thirteen are read in conjunction with all the other instructions, they are sufficiently clear to adequately inform the jury of the facts necessary to reach a verdict on each count charged. That the jury was not misled and did consider the different charges as they related to each defendant is borne out by the verdicts finding Charles not guilty of two counts, Donald guilty of a lesser included offense on one count and not guilty of the second count against him, and Alma not guilty of either count against her.
After the state rested, defendants moved to dismiss counts five, eleven and twelve. Both appellants were charged in count five with committing the Yeager burglary on September 29, 1975, and in counts eleven and twelve with burglary and theft of the Ritter residence on September 25, 1975. During the trial, however, the witnesses testified that the Yeager burglary was committed September 26 or 27, 1975, and the Ritter burglary September 27, 1975.
Pursuant to K.S.A. 22-3201(4), the trial court permitted the state to amend the information to conform with the evidence presented.
Appellants, in their second point on appeal, contend they were substantially prejudiced by the amended complaint as they were unable to adequately prepare any sort of defense for the days allowed by the amendment.
K.S.A. 1976 Supp. 22-3201 speaks to this problem:
“(2) . . . The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense. . . .
“(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The inquiry under the statute is whether or not the circumstances of each case reflect prejudice to the defendant. Where the record fails to establish prejudice to the defendant’s substantial rights, amendment any time before the verdict is proper. See State v. Sisson, 217 Kan. 475, 536 P.2d 1369 (1975); State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970); State v. White, 1 Kan. App. 2d 452, 571 P.2d 6 (1977).
We find no merit in appellants’ second point.
Wichita police officers executed a search warrant on September 30, 1975, for the residence of the defendants. Listed on the warrant were items reported stolen in the September 27, 1975, burglary of Mark Ritter’s apartment. These items included stock certificates, a television set, a watch and blank personal checks. In addition to the items listed in the warrant there were numerous other items taken during the search, some of which were used in evidence by the prosecution during trial. Unlisted items taken in the search and introduced as evidence included, among others:
Insurance papers of Michael K. Yeager, (Count 5);
Checkbook of David Hayden and Marcella (Marsha) L. Wilson, (Count 16);
Savings Account Register Book on Lonnie Rolfe, Jr. (Counts 20 and 21);
Savings Account Book of Rickie Floyd, checkbook of Rickie Lee Floyd, blank checks of Rickie Lee Floyd (Counts 14 and 15);
Smith & Wesson Magnum owned by Robert Y. Jones (Counts 22 and 23);
Checkbook, charge card, driver’s license, W.S.U. Registration, St. Francis Hospital School of Nursing I.D. Card and American Red Cross Card of Stephanie K. Owens (Counts 17 and 19).
Motions to suppress admission of the unlisted items were heard and denied before trial and during trial.
In State v. Hubbard, 215 Kan. 42, 523 P.2d 387 (1974), we held:
“When an officer is proceeding lawfully in making a valid search for items listed in a search warrant and discovers property known to be stolen but beyond the scope of the warrant and unrelated to the listed items, he may seize the same; and such property, if otherwise unobjectionable, may be admitted in evidence for the prosecution of the theft thereof. (Following State v. Turner, 210 Kan. 836, Syl. ¶ 1, 504 P.2d 168.)” Syl. ¶ 3.
“The validity of a search is not affected by the seizure of property beyond the scope of a warrant if the officer at the-time of the seizure has probable cause, as distinguished from mere suspicion, to believe the property to be stolen. (Following State v. Turner, supra, Syl. ¶ 2.)” Syl. ¶ 4.
The presence of numerous checkbooks in a private residence, none of which were owned by any resident of the dwelling searched, rises above mere suspicion, clearly presenting probable cause for the officers to believe that illegal possession of additional stolen property may have been discovered. Among the items listed on the warrant, and found during the search, was the checkbook of Mark Ritter. Officers are not required to close their eyes to a more extensive cache of items, similar to those named in a warrant, when such items are almost certainly the result of similar criminal activity.
The same is true of items of personal identification and other similar property not belonging to any resident of the dwelling searched. None of the items seized were owned by residents of the Howard home and a number of them had been reported stolen.
There was no error in the admission of such items in evidence.
Next appellants claim error because one of the jurors was observed taking notes during trial. When it came to the court’s attention, the trial judge admonished the jury but did not confiscate the notes.
The appellants have failed to show any basis for their claim of prejudice other than the fact that the juror took notes. Defense counsel made no timely objection to the juror’s conduct; the trial court brought the matter to counsel’s attention. In State v. Jones, 222 Kan. 56, 563 P.2d 1021 (1977), this court dealt with notes taken by a juror, without objection by defense counsel, that were confiscated by the trial court. In rationale dispositive of the defendants’ contention herein, the court stated:
“. . . In any event, the fact a juror takes notes during trial does not create error per se; a defendant must show that there has been prejudice of his substantial rights. . . State v. Jones, 222 Kan. at 61.
Absent any showing of prejudice the fact that notes taken during the trial were available during the jury’s deliberation does not require a new trial.
Shortly before the jury reached its verdict, the following written question was sent to the trial court:
“Can we consider evidence given in testimony but not written in the counts? This pertains to counts 24 and 25.”
While counsel and the trial judge were formulating the answer to the question, the jury reached its verdict. Charles was found guilty on both counts and George was found guilty on count 25. The jury returned its verdict within minutes after sending the question to the trial court. Appellants contend this constituted error.
The instructions given by the trial court clearly delineated the elements and proof required for each count. Appellants present no basis for inference that the jury verdict was reached by considering any evidence other than that properly admitted by the trial court. The logical conclusion is the jury clarified the matter themselves based on the court’s existing instructions.
Finally, appellants, in their statement of the issues, raised the question of the sufficiency of the evidence but did not brief or argue the point. The record indicates a substantial quantum of competent evidence to support the conviction of both appellants.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
Virgil Dorsey, .Jr., defendant-appellant, appeals from jury verdicts finding him guilty of one count of kidnapping (K.S.A. 21-3420), three counts of attempted rape (K.S.A. 21-3502 and K.S.A. 21-3301), and two counts of aggravated oral sodomy (K.S.A. 21-3506).
Defendant was tried on an amended complaint containing eight counts covering acts which allegedly occurred between 12:30 a.m. and 1:35 a.m. on July 29, 1975, as follows:
Count I, kidnapping
Count II, rape at 12:35 a.m.
Count III, oral sodomy at 12:40 a.m.
Count IV, rape at 12:45 a.m.
Count V, oral sodomy at 12:50 a.m.
Count VI, rape at 1:20 a.m.
Count VII, anal sodomy at 1:25 a.m.
Count VIII, oral sodomy at 1:35 a.m.
Defendant was found guilty on counts one, five and eight, guilty of attempted rape on counts two, four and six and not guilty on counts three and seven.
Defendant raises two points on appeal:
1. That the court erred in failing to sustain objections to the prejudicial comments of the prosecutor and in failing to admonish the jury relative to them.
2. That the verdict is not supported by sufficient competent evidence.
We do not deem it necessary or advisable to repeat the sordid details from the trial further than is necessary to determine the issues on appeal. All of the alleged crimes took place with one victim, under a single set of circumstances within a time span of approximately one hour. The two principal witnesses were the alleged victim and the defendant, each having a different version of the night’s events, although there was testimony tending to support the victim’s story.
Defendant’s first point on appeal is that the prosecutor made prejudicial statements to the jury during final argument. In State v. Baker, 219 Kan. 854, 549 P.2d 911 (1976), we held:
“In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. Counsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use.” (Syl. 9)
Some of the prosecutor’s statements objected to by defendant were in response to defense counsel’s comments in his closing argument.
“There is no prejudicial error when a statement of a prosecutor is provoked and made in response to previous argument or statements of defense counsel.” State v. Clark, 222 Kan. 65, 72, 563 P.2d 1028 (1977). See also State v. Robinson, 219 Kan. 218, 547 P.2d 335 (1976) and cases cited therein.
Other statements of the prosecutor, not objected to during trial, are now raised for the first time on appeal.
“. . . The rule is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.’,’ State v. Watkins, 219 Kan. 81, 87-88, 547 P.2d 810 (1976).
We have reviewed the entire closing arguments of both counsel in light of the entire record on appeal and find defendant’s first point to be without merit.
Defendant’s second point is there was no sufficient evidence to support the verdict of the jury. Only two people were at the scene of the crime, the victim and the defendant. Both testified and it appears the jury found the victim’s testimony more believable than the defendant’s.
“. . . The credibility of witnesses will not be passed upon and conflicting evidence will not be weighed on appellate review. This court looks only to the evidence which supports the verdict and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. (Citations omitted)” State v. Dodson, 222 Kan. 519, 524, 565 P.2d 291 (1977).
There was sufficient competent evidence to support the defendant’s conviction of one count of kidnapping, one count of attempted rape and one count of oral sodomy.
However, this does not finally dispose of the appeal. It is clear from the record that all of the alleged charges against the defendant grew out of one incident, with one victim under a single set of circumstances. The complaint contains a multiplicity of charges which have resulted in multiple convictions for the same offenses.
While there has been a tendency for some courts to use the terms “duplicity” and “multiplicity” interchangeably, there are definite differences between the terms when applied to a criminal pleading.
“. . . ‘Duplicity’ is the joining in a single count of two or more distinct and separate offenses. ‘Multiplicity’ is the charging of a single offense in several counts.” 1 Wright, Federal Practice and Procedure: Criminal, § 142 at page 306.
In considering the problems raised by a pleading that includes multiplicitous charges the court in United States v. Hearod, 499 F.2d 1003, 1005 (5th Cir. 1974), said:
“. . . The principal danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.”
As early as 1884, this court stated:
“And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject matter or the foundation of only one criminal prosecution. . . .” State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884).
The conduct of the defendant in the instant case constituted one continuous occurrence in which the jury found three separate and distinct offenses were committed, to-wit: kidnapping, attempted rape and oral sodomy. As we stated in State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 (1976):
“It is a generally accepted principle of law that the state may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution. (State v. James, 216 Kan. 235, 531 P.2d 70; State v. Gauger, 200 Kan. 515, 438 P.2d 455.)”
In Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973), defendant was charged with two counts of forcible rape, one count of assault with felonious intent and one count of taking a woman for defilement, all involving one act of violence on the same woman. This court reversed stating:
“This court has likewise held the state may not split a single offense into separate parts. Two or more separate convictions cannot be carved out of one criminal delinquency and where numerous charges are made, those which make up an integral part of another crime charged, in which the defendant was convicted, must be dismissed as duplicitous.” (p. 173.)
In State v. Pierce, et al., 205 Kan. 433, 469 P.2d 308 (1970), we held:
“It is proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence.” (Syl. 1)
“Generally, a single wrongful act should not furnish the foundation of more than one criminal prosecution.” (Syl. 2)
“The test to be applied in determining the question of identity of offenses laid in two or more counts of an information is whether each requires proof of a fact which is not required by the others.” (Syl. 3) Also compare Jarrell v. State, supra; State v. Cory, 211 Kan. 528, 506 P.2d 1115 (1973).
While the factual situation in the case before this court is somewhat different from prior decisions and comes to the court in a different posture, we feel the general principles previously enunciated apply. The only difference in the three allegations of rape and the facts necessary to prove the acts, was a lapse of a few minutes between each alleged offense. Under the circumstances, we fail to find where there has been more than one act of attempted rape. The same is true of the allegations of oral sodomy. On the other hand, the proof necessary to convict the defendant of kidnapping, rape or attempted rape and sodomy requires different facts and therefore the conviction as to one count of each of these three different crimes would not be multiplicitous. The convictions of the additional counts of attempted rape and sodomy, under the factual situation existing in this case, are not supported by the evidence and constitute multiple convictions for the same offense.
The fact that defendant has been convicted more than once for the same offense does not require a reversal of all the convictions.
“An accusatory pleading in a criminal case may, in order to meet the exigency of proof, charge the commission of the same offense in different ways. In such a situation a conviction can generally be upheld only on one count, the function of the added counts in the pleading being to anticipate and obviate fatal variance between allegations and proof. Thus it is proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence.”. State v. Pierce, et al., supra, 436-437.
The convictions on counts one, two and five are affirmed and the convictions and sentences on counts four, six and eight are vacated and set aside.
It is so ordered. | [
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The opinion of the court was delivered by
FROMME, J.:
This case comes to the court on a Petition for Review. The appeal from the Wyandotte District Court was heard in the Kansas Court of Appeals. Its formal opinion appears in Frost v. Hardin, 1 Kan. App. 2d 464, 571 P.2d 11 (1977). The issue there decided was whether claims by the children of a deceased father in a wrongful death action were barred because the claim of their widowed mother was barred by the statute of limitations. The Court of Appeals concluded the claims of the children were not barred and the judgment of the district court terminating the action should be reversed and the case remanded for further proceedings.
The question decided was one of first impression in this state and concerned the rights of parties under the Kansas wrongful death act, K.S.A. 60-1901, et seq. At the time this court granted the Petition for Review we noted several inconsistencies in the Kansas wrongful death act and determined that the issue presented would justify further scrutiny by this court. We have fully considered the arguments and briefs of the parties in light of the provisions of the act. We approve and adopt the opinion of the Kansas Court of Appeals as written.
The judgment of the district court is reversed and remanded in accordance with the opinion of the Kansas Court of Appeals. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by the plaintiff, Belger Cartage Service, Inc., for damage to its crane as a result of an accident which occurred on April 4, 1972. Defendant, Holland Construction Company, counterclaimed for damage to its conveyor and for loss of earnings therefrom. Following a bench trial, the trial court granted judgment to the defendant on its counterclaim in the amount of $7,127.99 and on plaintiff’s petition. Plaintiff appeals therefrom.
The trial court made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“1. On March 31,1972, Gerald D. Humble, a foreman for defendant Holland ordered a 30-ton crane from Bud Kuhl, a dispatcher for plaintiff. The request also included that plaintiff supply an operator and oiler for the crane to be used on April 4, 1972.
“2. On April 3,1972, dispatcher Kuhl filled out a work order form formalizing the request made on March 31 and indicating the names of operator and oiler to transport and operate the crane.
“3. The crane was delivered to the Holland Construction Company site by the operator Harlow and the oiler Platz on the morning of April 4,1972. A copy of the work order was carried to the site by the operator, but there is conflicting testimony as to whether defendant’s foreman Humble signed the work order at that time.
“4. On the reverse side of the work order there appears in small print ten paragraphs attempting to establish the rights and obligations between the parties with respect to the use of the crane.
“5. The undisputed testimony is that no one read the reverse side of the work order and no one on behalf of plaintiff pointed out the conditions set forth on the reverse side.
“6. The operator and oiler received all their instructions to report to the Holland site from plaintiff’s dispatcher and had no contact or consultation with the defendant prior to the morning of April 4, 1972.
“7. The operator worked for plaintiff for thirteen years prior to April 4, 1972, and was a member of a union representing employees in his specialized field. The oiler had been employed by plaintiff for eight years; belonged to his respective specialized union; and had worked with the same operator for about six years.
“8. The crane that plaintiff delivered to the site was approximately two years old and the crane’s cable was the original cable, never having been replaced.
“9. At the Holland site, the Holland employees assisted the oiler and operator in rigging the crane to lift the defendant’s conveyor. The actual lifting of the conveyor by the crane was accomplished by the operator.
“10. The oiler and operator admitted that if the crane had been rigged incorrectly, they would either have corrected it or refused to lift the conveyor.
“11. During the lift the cable broke and the fall of the conveyor damaged the crane and itself. The parties stipulated that the amount of damage to the crane was $8,097.99.
“12. The damage to the defendant’s property was $7,127.99.
“13. The cause of the cable breaking was not established with certainty. The cable had not been inspected for some time prior to its lift. The most likely cause was that the angle of the lift caused the cable to break.
“14. The defendant’s employees did not operate the crane in any way, but merely assisted in rigging the crane to the conveyor designated for the lift. It is admitted by all parties that the crane had the capacity to lift the conveyor.
“15. The performance of the employees of the parties established that the oiler and operator were in fact employees of plaintiff during the operation of the crane and that only the crane had been temporarily leased to defendant for use.
“16. The defendant produced evidence in support of its claim for damages by way of loss of use and profit. The conclusion of the testimony was that plaintiff was damaged in the amount of $6,500.00. The court finds the plaintiff failed to meet its burden of proof in this regard and that the evidence was remote, speculative and a matter of conjecture or opinion.”
“CONCLUSIONS OF LAW
“1. The work order form signed by plaintiff’s dispatcher and defendant’s foreman was just that — an order for the lease of equipment at a certain time and an acknowledgement of the receipt of the equipment. The various provisions on its reverse side in fine print were not discussed or contemplated by the parties to be a contract setting forth the rights and obligations of the parties.
“2. For one party to contract away its legal duty of due care so as to not make them responsible for their negligence through the use of exculpatory clauses is contrary to public policy.
“3. While parties may contract to determine the right to use and control leased equipment, performance of the parties may vary the terms of the contract.
“4. The provisions on the reverse side of the work order form contain clauses against the public policy of Kansas with respect to excusing one party’s negligence, and will not be given force or effect. The other provisions of the contract dealing with the right of control of the equipment was varied by the performance of the parties.
“5. The defendant was not negligent in the use or operation of the plaintiff’s equipment because defendant did not operate the equipment. Plaintiff is responsible for the damage caused to defendant’s equipment and its loss of use because of the negligent operation of the equipment by plaintiff’s employees.
“6. Plaintiff is further responsible for defendant’s losses because it breached an implied warranty that the equipment was, in fact, fit for the use for which it was intended.
“7. Defendant’s claim for its damages is based upon the negligence action, is not barred by the Statute of Limitations and defendant may recover its full loss, including loss of earnings, if proven.
“See: 195 Kan. 51.”
“JUDGMENT
“Judgment is entered this date in favor of defendant and against plaintiff in the amount of $7,127.99 and costs.”
Accompanying the above findings and conclusions was the following letter from the trial court:
“Enclosed you will find a Memorandum Decision largely in conformity with the findings and conclusions submitted by defendant. In addition, I would make these observations:
“Upon contact from Holland, Belger selected the appropriate equipment to meet the needs of the job. The crane was capable of lifting 60,000 pounds and was two years old. Holland employees made the hookup or attached the cables to the conveyor, including the tag lines. Had the hookup been in error, the Belger employees would have advised the Holland employees. Belger, through its employees, selected the set point. The eyes on the 26,000 pound conveyor were already fastened to the piece of equipment for lifting purposes. Belger employees follow customer’s instructions unless they consider them to result in an unsafe condition.
“In the lift of the conveyor within a fraction of a minute the conveyor pulled around into a critical area, the weight shifted the cable to one side, its angle of entering the boom head caused the cable to jump off the schreave or pulley and it frayed and broke. Whereupon, the boom bounded back onto the cab of the crane, jerked the boom out of the crane and tore the cab off the crane, all to the stipulated damage of Belger in the amount of $8,097.99.
“Contemporaneously, the conveyor was damaged extensively. A new piece of equipment would have required approximately a ninety-day delivery period while the damaged conveyor was repaired in ten days at a reasonable cost of repair stipulated to be $7,127.99. The bin and conveyor were new and never before had been in operation.
“The sole cause of the misfortune was the failure of the Belger employees to properly operate the equipment. The 220-foot cable needed to be inspected and replaced when worn. The load involved was an overload at a critical angle but not when properly lifted. The oiler saw the conveyor pulled around into a critical area but failed to warn. There was nothing wrong with the hookup. The operator knew a cable could break if the angle became improper and it was his duty to watch for this problem. The operator can view the end of the boom if he is observing it.
“As to the Statute of Limitations issue on the grounds of negligence, I would direct your attention to 195 Kan. 51, Rochester American Insurance Company, et al., vs. Cassell Truck Lines, Incorporated, et al., which is a 1965 case dealing with the old and the new Codes of Civil Procedure.”
The plaintiff-appellant raises numerous points and subpoints of claimed error. All but one of the issues raised are in the area of the legal relationship of the parties, as determined by the trial court.
The defendant (hereinafter referred to as Holland) needed a crane to move some hea y equipment. To accomplish the moving of the equipment, Holland contacted the plaintiff (hereinafter referred to as Belger). Belger sent the crane, boom, and two employees to the job site. A work order was signed (whether it was signed before or after the accident is disputed). In small print on the reverse of the work order are the following provisions:
“7. The lessee understands and agrees that all control of and any rights of control ovei personnel and equipment furnished are expressly relinquished and surrendered by Belger Cartage Service, Inc. and assumes the exclusive right to supervise and control them during the continuance of this agreement.
“The lessee specifically agrees that there is a complete surrender of control in regard to the aforementioned employees and equipment and not simply a division of control. This lease is upon the agreement by Belger Cartage that no personnel may be replaced or substituted by Belger Cartage except at the direction and with the approval of the lessee and that the lessee shall have the right to control all of the details of operation of the equipment and personnel furnished.
“The person signing this agreement specifically represents that he has the right and authority to agree to the foregoing terms. Any disputes or disagreements concerning the right of control over personnel or equipment furnished shall be resolved in favor of such control being in the lessee.
“8. It is agreed and understood that any equipment, or any item which may be delivered, is brought upon or delivered to lessee’s premises (including any premises where lessee is engaged in work on account of or in connection with which this work order was issued) at the sole risk of the lessee. It is further agreed and understood that any work performed on such premises is performed at the sole risk of the lessee. With regard to such equipment or deliveries or work performed, Belger Cartage Service, Inc. is hereby relieved from any and all responsibility regardless of its own fault or negligence. Belger Cartage Service, Inc. is further relieved of any responsibility whatsoever for damage to any curb, sidewalk, drive, lawn or appurtenance adjacent to the said premises. In connection with any claims made against Belger Cartage Service, Inc. arising out of deliveries made, equipment furnished or work done in connection with this work order, the lessee hereby indemnifies Belger Cartage Service, Inc. in full (including attorney’s fees). This indemnity to Belger Cartage Service, Inc. shall extend to and include any and all injuries to persons and any and all damage to property which may occur on account of the negligence of Belger Cartage Service, Inc.”
The two individuals sent by Belger with the crane and boom operated the equipment at all times relevant. Employees of Holland were on the ground operating tag lines. Tag lines are ropes that are attached to the load being lifted to steady and guide the same. When the conveyor was being lifted, the cable on the boom broke. The conveyor fell, damaging it as well as the crane and boom. The only evidence as to the precise cause of the accident was that the conveyor was lifted at an improper angle in relation to the boom. This resulted in the cable rubbing the side of the pulley, fraying out, and breaking. The evidence indicated the crane and boom were of adequate size and in good working order. The individual operating the crane testified he was aware that too great an angle could result in the cable breaking, knew they were close to the “critical angle” in the lift, but did not think that point had been reached until the cable broke.
Belger contends that its employees became Holland’s employees by virtue of the circumstances and paragraphs seven and eight of the work order. Therefore, Belger contends Holland was responsible for the negligence of these individuals. Harlow and Platz, the employees in question, were skilled crane operators and were paid by Belger. Holland paid an hourly rate for the use of Belger’s equipment which included any compensation paid the employees. Belger assigned the men to the job. Holland’s employees told them what work was to be done. The testimony was clear that Harlow and Platz determined how the work was to be done. The actual operation of the crane was in the control of Harlow and Platz. Only Belger could remove them from the job.
In the law of the master-servant relationship, a number of general criteria have been developed to determine whose servant a borrowed servant is. In 57 C.J.S., Master and Servant, § 566a (1948), the following is stated:
“Where a servant is loaned by the employer to another, the question whether the general or the special employer is liable for his acts while in the special employment generally depends on which one retains the right of direction and control over him and in whose business the servant was engaged while performing the act complained of; in some circumstances both masters may be liable.” (p. 284.)
In the matter of control, it says:
“It is not so much the actual exercise of control which is decisive as the right to exercise such control. In order to escape liability, the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under the control of a third person; and it is necessary to distinguish between authoritative direction and control and mere suggestions as to details or the necessary co-operation where the work furnished is part of a larger operation. A servant of one employer does not become the servant of another for whom the work is performed merely because the latter points out to the servant the work to be done, or supervises the performance thereof, or designates the place and time for such performance, or gives the servant signals calling him into activity, or gives him directions as to the details of the work and the manner of doing it, or because the servants of the person for whom the work is being performed assist in the work.” (pp. 287-288.)
This last statement was quoted in part (but from 39 C.J. 1275) in Redfield v. Chelsea Coal Co., 136 Kan. 588, 590, 16 P.2d 475 (1932). In the Redfield case, a coal mining company made a contract with a truck owner to haul coal from the mine; the truck owner hired the truck drivers and paid them; the foreman of the mine told them when to report to work; the foreman of the mine showed the drivers where to load; and the mine employees would load the trucks. When a truck was involved in an accident with a third party, this court held that the evidence did not prove that the truck driver was an agent of the coal company. We noted that the collision resulted from the manner in which the truck was being operated, something over which the mining company had no control.
In cases involving independent contractors, this court has said that an employer’s right to direct and control the method and manner of doing work is the most significant aspect of determining an employer-employee relationship (Chasteen v. Childers, 218 Kan. 519, Syl. 5, 546 P.2d 935 [1976]; McCarty v. Great Bend Board of Education, 195 Kan. 310, 403 P.2d 956 [1965]).
In Beitz v. Hereford, 169 Kan. 556, 220 P.2d 135 (1950), a repairman working on a door of a shop was being helped by employees of the shop; an issue involved was whether they became the repairman’s employees while helping him. This court summarized the test:
“Various tests have been employed by courts in determining whose servant a person is at a particular time. Among such tests are:
“Whose work was the person doing at the particular time?
“What person had authority to discharge the workman?
“Who had the right to exercise supervision and control over the workman and to determine the manner in which the work was to be done rather than who actually exercised such control?” (Syl. 2.)
There have been a number of cases from other jurisdictions involving the leasing of a crane and its operator(s), as in this case. A representative sampling of those which held the operator remained the employee of the lender and not the borrower is summarized as follows:
Harrington v. H.F. Davis Tractor Co. Inc., 342 Mass. 675, 175 N.E.2d 241 (1961). Even though the borrower gave the operator direction on what to do, the operator did not become subject to direction and control in the actual management of the crane. The court also stated there is a presumption that an employee remains the servant of the general employer.
Skornia v. Highway Pavers, Inc., 39 Wis. 2d 293, 159 N.W.2d 76 (1968). The court relied on a presumption that the operator remained with the general employer as long as he was on its business. Other factors relevant were that the operator was a specialist, and that he could be substituted by the general employer. The court also noted a rule that a person was not a loaned employee unless the employee consented to change. Because of a lack of evidence to overcome the presumption of continued employment, there was no need to consider the question of “control,” but the court did note that merely pointing out work to be done was not control. However, if the operator would need detailed direction, then that might indicate control.
Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966). The court relied on a presumption of continued employment by the original master unless the borrower in fact assumed control of the manner of performance. The test was control of the work as well as the manner of performing it. Factors noted were the experience and skill on the part of the operator and lack thereof by the borrower; operator using his own judgment; lender having the right to substitute another employee; employees being paid by the lender; and the borrower giving requests but not commands.
An example of one case wherein the borrower became the master is distinguished from the case before us in that the lender was not in the regular business of leasing cranes and did not stand to profit (Western Foundry Inc. v. Matelich, 150 Mont. 228, 433 P.2d 789 [1967]).
There was substantial competent evidence to support the trial court’s findings that Belger, under the totality of the circumstances, was the employer of Harlow and Platz; that their negligence was the cause of the accident; and that Holland was not negligent.
We turn now to the related issue of whether the exculpatory clauses in paragraphs seven and eight of the work order altered the legal relationship of the parties.
In Kansas City Structural Steel Co., v. L. G. Barcus & Sons, Inc., 217 Kan. 88, 535 P.2d 419 (1975), we said:
“The policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced. Contracts freely arrived at and fairly made are favorites of the law. (Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 426 P.2d 60.) None of the parties here involved were neophytes or babes in the brambles of the business world. Both companies, it would appear, dealt in projects involving considerable sums of money; both operated substantial business enterprises; and there is no suggestion that their businesses were not capably managed and profitably operated. The trial court did not find the limitation on damages imposed by the exculpatory clause was unconscionable, and we cannot view it as such. The limitation imposed was not total and was agreed upon by parties standing on equal footing.” (p. 95.)
However, it should be noted that Kansas City Structural Steel involved a delay of delivery issue and a limitation of liability for damages arising therefrom. Further, it arose under the provisions of the Uniform Commercial Code. Active negligence was not involved.
Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962), involved a rental of a trailer and hitch by a rental company to an individual. The trailer hitch broke. The rental agreement absolved the rental company of any responsibility in the event of accident. This court found that such a contract limiting liability for consequences of one’s own negligence was “void as against public policy.” Public policy was determined by a statute requiring certain standards for trailer hitches and connectors.
Hunter was distinguished in Talley v. Skelly Oil Co., 199 Kan. 767, 433 P.2d 425 (1967), in which this court said:
“As a general rule, an exculpatory clause in a lease voluntarily executed between parties standing on an equal footing, under the provisions of which clause the lessee agrees to indemnify the lessor against risk, loss, damage or injury occurring on the leased premises during the term of the lease, whether or not caused by the lessor’s negligence, is a valid clause and enforceable between the parties themselves.” (Syl. 1.)
This court noted that Hunter was a well-defined exception to the general rule. There was no contention in Talley that the lease in question contravened any statute and no “public policy” question was involved. Talley involved injury to a third party during lessee’s use of the premises. Lessee had complete, actual control over the premises. This factual situation is materially different from the facts at hand wherein lessor retains control of the leased equipment which requires special skill and training to operate, and the operation thereof is potentially dangerous.
As to “public policy,” this court defined it in In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960):
“Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts which are lawful and which contravene none of its rules shall be enforced, and that they shall not be set aside or held to be invalid on a suspicion of illegality.
“A contract is not void as against public policy unless injurious to the interests of the public or contravenes some established interest of society.” (Syl. 5, 6.)
The rule seems to be that, unless against public policy, a contract exempting liability will be enforced, however, it will be enforced very strictly. In Cason v. Geis Irrigation Co., 211 Kan. 406, 507 P.2d 295 (1973), we said:
“Contracts for exemption from liability for negligence are not favored by the law and are strictly construed against the party relying on them.” (Syl. 1.)
In Kansas City Power & L. Co. v. United Tel. Co. of Kan., Inc., 458 F.2d 177 (10th Cir. 1972), a Kansas case, the court found that the specific indemnification clause was not broad enough to require indemnification for losses occasioned by the company’s own negligence. The court said:
“The general rule is that private contracts exculpating one from the consequences of his own acts are looked upon with disfavor by the courts and will be enforced only when there is no vast disparity in the bargaining power between the parties and the intention to do so is expressed in clear and unequivocal language. [Citations omitted.] However, the courts have not agreed upon the language necessary to manifest such an intent. . . .” (p. 179.)
The law of “unconscionable” provisions was discussed extensively in Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976), wherein this court found that in an action by an advertiser against a telephone company for damages by reason of an omission of advertising contracted for the yellow pages, the contract which limited the company’s liability for errors and omissions was not unconscionable and contrary to public policy. We noted that disparity of bargaining power, alone, does not render a contract unconscionable.
A summary of the law in this area is provided in 17 Am. Jur. 2d, Contracts, § 188:
“Generally, parties may agree to waive contract, statutory, or other rights unless a question of public policy is involved.
“It is not the rule that any agreement by any person which assumes to place another person at the mercy of his own faulty conduct is void as against public policy. However, the law does not look with favor on provisions which relieve one from liability for his own fault or wrong. It is a well-settled general doctrine that the law will not sustain a covenant of immunity which protects against fraud or relieves one of a duty imposed by law for the public benefit. It has been held that clauses limiting liability are given rigid scrutiny by the courts, and will not be enforced unless the limitation is fairly and honestly negotiated and understandingly entered into; this is especially true where the contract involves services of a public or semipublic nature, but has also been applied in some controversies involving private contracts, particularly where, as in the case of a public or semipublic contract, the private contract is the only means one of the parties has of filling an important need. A release may be void as against public policy, as where an employer, carrier, or professional bailee is released from liability for future negligence. . . .
“An agreement that facts which the law declares establish a certain relationship do not establish that relationship is void. A person may not shield himself from liability to a third party merely by stipulating with another that he is something which in reality he is not.” (pp. 556-557.)
The trial court concluded the exculpatory clause herein was against public policy and that the terms of the clause had been varied by the performance of the parties. Whether any term of a written contract has been modified or waived by a subsequent agreement is a question of fact for the trial court (Coonrod & Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, Syl. 2, 535 P.2d 971 [1975]).
By analogy, a Uniform Commercial Code sales provision (K.S.A. 84-2-316[2]) provides in part:
“to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. . . .”
Kansas has found this conspicuousness to be absent in such cases as Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 531 P.2d 41 (1975) (disclaimer of warranty in equipment order used much smaller type than rest of contract); and Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, 523 P.2d 709, modified on other grounds, 215 Kan. 510, 525 P.2d 626 (1974) (disclaimer in invoice was in smaller type and of same color as rest of writing). See generally Annot., Implied Warranty Disclaimer as “Conspicuous,” 73 A.L.R.3d 248 (1976). Also, K.S.A. 1977 Supp. 84-1-201(10) provides:
“ ‘Conspicuous’: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. . . . Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. . . . Whether a term or clause is ‘conspicuous’ or not is for decision by the court.”
The exculpatory clause was in small print on the reverse side of the form. Everything on the reverse side was printed. All signatures and “personalized” data were on the front of the order. There was no evidence that the clauses were discussed or that Holland had actual knowledge thereof. The evidence was disputed as to whether or not the work order was signed before or after the accident.
In determining the enforceability of exculpatory clauses purportedly transferring employees to another and relieving the transferring employer from all responsibility for harm they might cause, such clauses are to be strictly construed against the transferring employer.
In determining the enforceability of any such exculpatory clauses, the trial court may consider the totality of the circumstances surrounding the execution and performance of the contract including, but not limited to, whether the employer to whom the employees were purportedly transferred had knowledge of the clauses by having them pointed out to him or the clauses themselves being conspicuous in the contract; the nature of the work to be performed including the degree of skill required and the degree of risk of harm involved; and the actual performance of the parties.
There was substantial competent evidence to support all of the trial court’s findings of fact contained in its memorandum opinion and as expanded upon in its accompanying letter of May 25, 1976.
The remaining issue is whether or not Holland’s counterclaim was barred by the statute of limitations. The trial court found Holland could recover on the theories of both negligence and implied warranty. The action herein was commenced on April 4, 1974. It was predicated on an accident occurring April 4, 1972. Holland filed its counterclaim on May 30, 1974.
K.S.A. 60-213(d) provides:
“Effect of death or limitations. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.”
By this statute a claim that may be barred by a statute of limitations may still be used as a matter of pure defense but not as an affirmative action (Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. 8, 9, 562 P.2d 1 [1977]; Waechter v. Amoco Production Co., 217 Kan. 489, 517-519, 537 P.2d 228 [1975]; Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P.2d 782 [1965]).
Rochester was the case that the trial court relied upon. In that case we stated in part:
“As a general rule a setoff, counterclaim or cross-claim has the nature, characteristics and effect of an independent action or suit by one party against another. Accordingly, in the absence of a statute to the contrary, a demand pleaded by way of a setoff, counterclaim or cross-claim is regarded as an affirmative action in most jurisdictions, and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations. [Citations omitted.]
“In Christenson v. Akin, [183 Kan. 207, 326 P.2d 313], the court in considering 60-715 [predecessor to 60-213(d)], supra, said:
“ ‘. . . The counterclaim here being considered grew out of the same contract and transaction which is the basis of plaintiffs’ cause of action in their petition. Although defendants may be barred from affirmative relief because of limitations, they would seem to have a right to use their counterclaim as a matter of pure defense to reduce any judgment received by plaintiffs herein.’ (p. 213.) (Emphasis added.)” (195 Kan. at 56-57.)
Had Belger recovered, the negligence claim of Holland could have been used as a setoff. However, Belger did not recover against Holland. Therefore, any recovery on the negligence theory of the counterclaim was barred by the statute of limitations which was two years, pursuant to K.S.A. 60-513. The trial court’s conclusion of law No. 7 as follows:
“Defendant’s claim for its damages is based upon the negligence action, is not barred by the Statute of Limitations and defendant may recover its full loss, including loss of earnings, if proven.”
was clearly erroneous.
We turn now to the issue of breach of implied warranty. The cause of action for breach of implied warranty has a three-year statute of limitations pursuant to K.S.A. 60-512, as follows:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. . . .”
The trial court found that Belger had breached its implied warranty “that the equipment was, in fact, fit for the use for which it was intended.” The counterclaim theory of implied warranty was as follows:
“Plaintiff upon renting said crane to the defendant impliedly warranted that said crane was in good operating condition and would be able to lift the conveyor of the defendant and put it in place and also impliedly warranted that its operator knew how to operate said crane and that said crane operator of plaintiff would be able to use said crane in the proper manner to place the conveyor in place and plaintiff breached said implied warranties.”
It was broader based than implied warranty of fitness for intended purpose. There was no evidence that the crane was not “fit” for the intended purpose and the trial court found no defects in the equipment itself.
The counterclaim raises the theory of an implied warranty by Belger to complete the job in a workmanlike manner. In Gilley v. Farmer, 207 Kan. 536, Syl. 3, 485 P.2d 1284 (1971), this court said:
“Where a person contracts to perform work or to render a service, without an express warranty, the law implies an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in performing the work or service. (Following Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986.)”
Implied warranty of fitness has been used by this court in a different factual situation in Global Tank Trailer Sales v. Textilana-Nease, Inc., 209 Kan. 314, 496 P.2d 1292 (1972). Textilana-Nease was using Global’s tank trailer to haul detergent. The tank collapsed. In reversing the lower court and finding for Textilana-Nease, this court said:
“An implied warranty of fitness has been recognized in connection with bailments made for the mutual benefit of the parties. The rule is that if a bailment is for the mutual benefit of both the bailor and the bailee, such as a let-for-hire agreement, then a higher duty arises on the part of the bailor, the general rule being that, while the bailor is not an absolute insurer against injuries from a defective chattel, he is charged with the duty of inspection to determine whether or not the chattel is fit for the purpose intended. Thus, if the defect were discoverable, he became liable for injuries to the bailee, arising from this unsafe condition, under the theory of an implied warranty of fitness. [Citations omitted.]
“A fortiori, Global’s knowledge of the material facts and its knowledge of the use to which the tank trailer here in question would be put, requires that Global be held to impliedly warrant the tank trailer to be fit for the use intended and to which it was put by Textilana-Nease.” (p. 320.)
In Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 524 P.2d 1194 (1974), a well driller was selling the equipment and drilling the well. This court found no implied warranty as to the quantity or quality of the water, only that his work will be in a workmanlike manner, with such skill as may be expected from one who ordinarily does such work. As to the selling of the equipment, this court said the implied warranty provides that the equipment will be fit for the purpose when the seller knows of the particular purpose for which the equipment will be used. Franklin was, however, a Uniform Commercial Code case applying K.S.A. 84-2-315.
A person supplying equipment and workmen to operate the equipment, absent an express warranty, impliedly warrants: (1) the equipment is fit for the intended use; and (2) that the workmen are skilled in the use of said equipment, will do the job in a workmanlike manner, and will exercise reasonable care in performing the work.
The trial court does not specifically conclude that the implied warranty of performance in a workmanlike manner, using reasonable care, was breached, but the findings support this conclusion. The trial court did find that Relger was responsible for Holland’s losses due to breach of implied warranty. The trial court apparently considered the employees as a part of the equipment package or unit in reaching this conclusion.
The judgment of a trial court is to be upheld if it is correct, even though the trial court may have relied upon a wrong ground or assigned an erroneous reason for its decision (Crow v. City of Wichita, 222 Kan. 322, Syl. 1, 566 P.2d 1 [1977]). We have no difficulty in concluding that the correct result was reached herein.
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The opinion of the court was delivered by
Fromme, J.:
Donald McQueen and Elmer Hardyway, Jr., were jointly charged with participating in eight separate criminal incidents occurring between January 29 and March 9, 1975. The charges originally included 29 counts against one or both of these defendants. The charges arising from three of the eight criminal incidents were severed for separate trials. These two defendants ultimately were tried jointly for participating in five criminal incidents involving a total of 21 counts. Some preliminary background must be given in order to understand the points discussed.
We will refer to the eight criminal incidents as (1) the Berry burglary, (2) the Jones burglary, (3) the Grove IGA robbery, (4) the Pawnee Plaza Mall conspiracy, (5) the McDonalds-Hillside robbery, (6) the McDonalds-Broadway robbery, (7) the Hickory House robbery, and (8) the Willie Stevens murder.
The McDonalds-Hillside robbery, the McDonalds-Broadway robbery and the Hickory House robbery involved a lone bandit. The trial court properly severed all charges arising from these incidents. The remaining charges were tried. A jury was unable to agree on a verdict in the Berry burglary and a mistrial was declared. The jury acquitted both defendants in the Willie Stevens murder. So — on appeal we are concerned with convictions in connection with the Jones burglary, the Grove IGA robbery and the Pawnee Plaza Mall conspiracy.
The present case is a sequel to State v. Smallwood, 223 Kan. 320, 574 P.2d 1361 (1978), and State v. Moody, 223 Kan. 699, 576 P.2d 637 (1978). The present defendants along with Smallwood and Moody participated in the Grove IGA robbery and the Pawnee Plaza Mall conspiracy. Smallwood and Moody were tried first and were convicted in separate trials. The fifth participant in these two crimes was Ray Meeks. He became the state’s principal witness.
The first seven points on appeal concern both appellants. These seven points were presented in separate briefs but the arguments are identical in both briefs. Our decision on these seven points will apply equally to both appellants. Hardyway raises two addi tional points which will be treated separately and numbered eight and nine.
The first point involves the appellants’ convictions for criminal injury to persons under count thirteen of the information. This count arose out of the Grove IGA robbery. The basic charge was aggravated battery. The trial judge instructed the jury that under this count the appellants might be found guilty of a lesser included offense, criminal injury to persons. The appellants were found not guilty of aggravated battery, but guilty of criminal injury to persons under K.S.A. 21-3431.
The provisions of K.S.A. 21-3431 are identical to those of K.S.A. 1976 Supp. 21-3431, defining criminal injury to persons. The provisions of these statutes are so vague and uncertain they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process. (See State v. Kirby, 222 Kan. 1, Syl. ¶ 2, 563 P.2d 408 [1977]; State v. Woods, 222 Kan. 179, 186, 563 P.2d 1061 [1977]; and State v. Sullivan & Sullivan, 224 Kan. 110, Syl. ¶ 1, 578 P.2d 1108 [1978].) The convictions and sentences of both appellants for criminal injury to persons under count thirteen are reversed and set aside.
Appellants urge as their second point that the trial court erred in refusing to grant separate trials. They contend there was a misjoinder of both charges and parties under the guidelines of K.S.A. 22-3202 and 22-3204.
The first of these statutes sets guidelines for joinder of charges. The second provides for severance when two or more defendants are jointly charged. Our initial consideration is whether the joinder of charges was permissible. When joint charges are filed against two or more defendants K.S.A. 22-3202(3) governs. It reads:
“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.”
If the joinder of charges is proper, then the question of severance and the granting of separate trials must be considered. Severance to avoid possible prejudice is covered by K.S.A. 22-3204 which reads:
“When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.”
Even though joinder of charges may meet the requirements of K.S.A. 22-3202 the trial court should nevertheless grant separate trials under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant.
We will consider the joinder of charges first.
In State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), this court examined the provisions of K.S.A. 22-3202(3) and held:
“Two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.” (Syl. f 2.)
In the present case after the charges on the McDonalds-Hillside robbery, the McDonalds-Broadway robbery and the Hickory House robbery were severed there remained the charges on the Berry burglary, the Jones burglary, the Grove IGA robbery, the Willie Stevens murder, the Pawnee Plaza Mall conspiracy, and the three firearms charges. Both Hardy way and McQueen were charged jointly and were alleged to be accountable for each of the offenses except for the Pawnee Plaza Mall incident and the three firearms charges. The first four incidents, the Berry burglary, the Jones burglary, the Grove IGA robbery and the Willie Stevens murder, were properly joined under State v. Roberts, supra, since each defendant was charged with accountability for each offense.
As to the three firearms charges — they arose out of crimes in which both parties participated. In State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395 (1975), this court held it was proper to try two defendants jointly for aggravated robbery and include a charge against one or both of the defendants for unlawfully possessing a pistol. When the unlawful possession of a firearm occurs during the commission of a primary crime charged against two defendants it is proper to join with the primary charge a count on unlawful possession of a firearm against the person, or persons, who unlawfully possess a firearm. Therefore, the firearm charges against the appellants in this case were properly joined with other charges filed against both appellants.
The final question on joinder of charges concerns the Pawnee Plaza Mall conspiracy charge. Initially a complaint was filed charging both appellants with conspiracy to burglarize the Pawnee Plaza Mall. Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime, and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy. (State v. Daugherty, 221 Kan. 612, Syl. ¶ 4, 562 P.2d 42 [1977].)
Testimony to establish the conspiracy under this charge was given by Ray Meeks, the same co-conspirator who testified in State v. Moody, supra. The details are more fully set forth in Moody. Suffice it to say Smallwood, Moody and Meeks were present when the agreement was first made to burglarize the mall. The following day Hardyway joined Smallwood and Moody to further plan the burglary. Hardyway, McQueen, Smallwood and Meeks were apprehended three days later in a vehicle en route to the mall. Two revolvers and a shotgun were found in the vehicle at the time the men were arrested. The two revolvers had been obtained by the appellants in one of the prior burglaries and in the Grove IGA robbery.
McQueen was not bound over on this charge at the preliminary hearing. Hardyway was bound over, tried and convicted. During the trial McQueen’s presence in the vehicle with the other individuals, including Hardyway, was established by the testimony of the officers. McQueen was neither tried nor convicted on the charge because of his release at the preliminary hearing.
The Pawnee Plaza Mall charge does not fall within the first two tests for joinder of charges enunciated in State v. Roberts, supra, since McQueen was not included in the final charge and since all of the incidents were not in furtherance of a single conspiracy to commit them. So — we must decide if the Pawnee Plaza Mall incident was part of a common scheme or so closely connected in time, place and occasion to the Jones burglary and the Grove IGA robbery as to be in a series of acts or transactions constituting the crime or crimes. The statute K.S.A. 22-3202(3) speaks of participation in the same series of acts or transactions constituting the crimes. The Berry burglary, the Willie Stevens murder, the Jones burglary, the Grove IGA robbery, and the Pawnee Plaza Mall incident all occurred in the Wichita area within a period of 39 days. All were participated in to some degree by both appellants. The revolvers recovered in connection with the Pawnee Plaza Mall conspiracy had been acquired by appellants in the Jones burglary and the Grove IGA robbery. In addition the last three incidents were closely related in time and place and they were criminal transactions in which Ray Meeks was a connecting link. He was a co-conspirator in all three of these crimes. Each of these three criminal transactions included a separate conspiracy participated in by Ray Meeks with one or both of the appellants.
We therefore believe the necessary connection between these criminal transactions exists and is sufficient under the facts and circumstances to satisfy the standard for joinder contemplated by the statute even though McQueen’s participation in the Pawnee Plaza Mall incident may not have been sufficient to bind him over for trial on said charge. The criminal transactions were so closely connected that proof of the Pawnee Plaza Mall conspiracy required proof of the other crimes, including proof of how and where the weapons seized had been acquired by the conspirators.
We turn next to the question of severance. Severance under K.S.A. 22-3204 lies within the discretion of the trial court. The limitations on joinder and the provisions for severance are to prevent manifest injustice. When two defendants are charged with multiple crimes some prejudice necessarily will occur. When the evidence of participation and identity of those charged is clear and convincing, prejudice from a joint trial may not be great. However, when the evidence is clear and convincing as to one defendant and not so as to the other, failure to sever may well cause prejudice which will result in manifest injustice in violation of constitutional due process.
There is a material advantage in having defendants tried together for the crimes in which all have jointly participated during a short period of time. In a joint trial witnesses will have to testify but once. The saving of time and money to the state may be substantial. In the present case we doubt any savings in either time or money. The trial consumed a period of eight weeks and much time was spent in arguing and briefing questions on both joinder and severance. However, these considerations are secondary to giving each person accused a fair trial under the constitutional requirement. The question of possible prejudice to multiple defendants should be carefully considered before a severance under K.S.A. 22-3204 is denied.
In the present case the appellants point to three specific instances of alleged prejudice arising from evidence admitted at the trial. The first concerns a letter written by Hardyway to McQueen suggesting the possibility of disposing of Ray Meeks, the state’s chief witness. Although the letter was admitted in evidence the court did instruct the jury that they were to consider it only in connection with the guilt or innocence of Hardyway. Appellants argue that such a limitation would be impossible to heed in the jury room. The next suggestion of prejudice comes from evidence of the charge against Hardyway on the Pawnee Plaza Mall conspiracy. McQueen was not charged and could not be convicted, yet testimony was introduced to establish he was present in the vehicle with Hardy way and the others. It is argued evidence of his participation was prejudicial. The third suggestion of prejudice comes from evidence concerning the statements Hardyway made after his arrest. Testimony of a detective as to these statements was admitted. The statements made were exculpatory in nature. The appellants argue the admission of the statements was a violation of the Bruton rule. Hardy way testified at the trial and was available for McQueen to cross-examine. The court limited the use and purpose of the statements in its instructions. The rule laid down in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968), was not violated. See State v. Sullivan & Sullivan, supra.
The jury did acquit both appellants on the charges arising from the Willie Stevens murder. This indicates a proper weighing of the evidence on each charge rather than returning indiscriminate verdicts on all charges. In addition the jury failed to agree on any verdict on the charges arising from the Berry burglary. It seems apparent that the verdicts did not result from either guilt by association or guilt because of the number of charges tried together.
In view of McQueen’s actual participation in the Pawnee Plaza Mall incident and the overall weight of evidence against the two appellants, we hold the failure to sever was not reversible error. We find beyond a reasonable doubt the failure to order separate trials for these appellants did not result in such prejudice as to prevent a fair trial. (See K.S.A. 60-2105, and State v. Thompson, 221 Kan. 176, Syl. ¶ 4, 558 P.2d 93 [1976].)
The third point concerns alleged grounds for a mistrial based on juror misconduct. During the course of the trial it came to the court’s attention that two of the jurors had overheard a conversation outside the courtroom among three persons who were spectators at the trial. The jurors brought this matter to the attention of the trial judge who questioned each of the jurors in the presence of counsel. The substance of the conversation was that it would not be hard to slip into the jury room with a shotgun and blow the jurors away.
The jurors identified two men, James Baker and Larry Smith, as the persons present when the remark was made. Both jurors said they considered the statement more a matter of joking than a serious threat. Each juror assured the trial judge the incident would have no effect on their thinking as far as the trial of the defendants was concerned. They also indicated they had sáid nothing to any of the other jurors about the incident and had made no response to the person making the statement.
No motion for a mistrial was made by either defendant at this time. Such a motion was made, however, later in the trial during the testimony of Ray Meeks. In referring to a conversation which took place at the house of one Johnnie B. Davis, Meeks indicated both defendants were present, as was Larry Smith. Upon the mention of Smith’s name both defendants moved for a mistrial because of the previous incident involving the two jurors. The court overruled the motions.
The statutory authority for mistrials is found in K.S.A. 22-3423 which provides in pertinent part:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because . . .
“(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; . . .” (Emphasis supplied.)
Terminating a trial and declaring a mistrial on one of the statutory grounds listed in K.S.A. 22-3423 is largely within the discretion of the trial court. A clear showing of abuse of discretion must be made before the decision of a trial court will be set aside on appeal. See State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977); State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977).
Although the defendants allege they were prejudiced by the denial of their motions they have failed to affirmatively show any harm to their substantial rights. It is conjecture at best to suggest the earlier incident outside the courtroom took on any greater significance in the minds of the two jurors involved after they heard Ray Meeks mention the presence of Larry Smith. The existence of prejudice becomes even more remote when the court considers that these two jurors were members of a panel which unanimously convicted the defendants of ten counts in the information, acquitted them of three counts and were unable to reach a verdict on eleven other counts. The verdicts themselves indicate the jury considered each count and the evidence necessary to prove it, and was not influenced by the event complained of.
The fourth point concerns the use of the inquisition statute by the state during an evening recess. The state called a witness, Osborne J. Smith. He claimed the Fifth Amendment privilege against self-incrimination and was excused. After the trial was recessed that evening the state made application to the court for permission to conduct an examination of this witness under the inquisition statutes. The application was granted.
K.S.A. 22-3101 in pertinent part provides:
“(1) If the attorney general, an assistant attorney general, or the county attorney of any county is informed or has knowledge of any alleged violation of the laws of Kansas, he may apply to a judge of the district court to conduct an inquisition. An application for an inquisition shall be in writing, verified under oath, setting forth the alleged violation of law. . . .
“(3) . . . Any person who . . . refuses to . . . answer any proper question propounded during the inquisition, may be adjudged in contempt of court and punished by fine and imprisonment.”
K.S.A. 22-3102 provides:
“No person called as a witness at an inquisition shall be required to make any statement which will incriminate him. The attorney general, assistant attorney general or county attorney may, on behalf of the state, grant any person called as a witness at an inquisition immunity from prosecution or punishment on account of any transaction or matter about which such person shall be compelled to testify and such testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him.”
The inquisition was conducted. The witness was represented by counsel. The presiding judge ordered the witness to answer the questions. He was not granted immunity because the trial court found that none of his answers to questions would incriminate him and the Fifth Amendment privilege was not available. Defense counsel were not advised of the inquisition until after it was over. Later a hearing was held in chambers concerning the use of the inquisition procedure and the propriety of using that means to obtain the testimony of the witness. Counsel for appellants argued before the trial court that this amounted to fundamental unfairness and denied the appellants equal protection and. due process of law since it gave the state an improper advantage. Objections were overruled. The witness testified at the trial and the transcript from the inquisition was used by the state to refresh the memory of the witness in a few instances. The testimony of Smith concerned the furnishing of a 12-gauge shotgun to Hardyway for his use.
The cases cited by the state contain language which indicates that there are no time limitations on the use of the inquisition process, and that the investigatory powers of the state do not end with the conclusion of a preliminary hearing. See State v. Jones, 202 Kan. 31, 47, 446 P.2d 851 (1968), and State v. Brecheisen, 117 Kan. 542, 543, 232 Pac. 244 (1925). However, these cases did not involve the precise question at hand and such language does not constitute binding precedent.
When a witness refuses to answer questions on the ground his answers will incriminate him the trial court may hold a hearing in chambers to determine if the witness is justified in claiming the Fifth Amendment privilege. We see little difference in this and the use of the inquisition statute to examine justification, if any, for the claim of privilege. In the present case the witness was represented by counsel, his rights were protected, and the appellants were afforded the opportunity in chambers to learn of the nature and extent of his testimony.
When a witness called by the state refuses to testify and claims the Fifth Amendment privilege against self-incrimination, the court may hold a hearing in chambers to determine if the claim is justified or on the application of the prosecutor the court may hold inquisition proceedings under K.S.A. 22-3101, et seq., to determine the validity of such claim.
Appellants’ fifth point is that the court erred in failing to grant their motion for an in-camera inspection of all of the Wichita Police Department files having to do with the case. It is not clear what records appellants were seeking by their motion. They indicate now they wanted information concerning a lineup identification and information on the pawning of a ring belonging to Willie Stevens, the murder victim.
K.S.A. 22-3212 places in the trial court a broad discretion to require disclosure of documents and other tangible objects which may be in the possession or under the control of the prosecution. The motion should be made prior to trial in order to allow reasonable time for disclosure and inspection. To obtain discovery of records or objects the defendant has the burden of showing the materiality of the same and the reasonableness of the request. (State v. Glazer, 223 Kan. 351, Syl. ¶ 6, 574 P.2d 942 [1978].) The trial court’s ruling will be set aside only if an abuse of discretion is shown. (State v. Brown, 220 Kan. 684, 689, 556 P.2d 443 [1976].) The request for disclosure in this case was made during the trial. It appears over-broad, in scope. The briefs of the appellants on this point are not keyed to the record and we are unable to find in the voluminous record the showing of materiality and reasonableness required. No abuse of discretion has been shown in this case.
The sixth point raised concerns appellants’ convictions on both count eleven and count twelve. These counts arose out of the Grove IGA robbery. Count eleven covers the robbery and taking of $5,200.00 in the presence of five store employees including Larry L. Wolf. Count twelve covers the robbery and taking of a .38-caliber Charter Arms revolver from the person and in the presence of Larry L. Wolf.
The state attempts to justify the separate charges by contending there was a lapse of time between the two incidents. When the robbery was in progress Wolf was confronted in the office by one of the robbers who demanded and received the gun. Wolf was ordered to leave the office and then the money was taken. The state further contends count eleven charges aggravated robbery of the money belonging to Grove IGA, while count twelve separately charges aggravated robbery of a gun belonging to Wolf. These arguments are not persuasive. There was one store robbery. Both the money and the gun were kept on the store premises in connection with running the business. This court has held ownership of the property taken is not an element of robbery under K.S.A. 21-3426. (State v. Glymph, 222 Kan. 73, 74, 563 P.2d 422 [1977].) Multiple offenses cannot be carved out óf a single robbery because of separate ownership of the property taken.
The state may not split a single offense into separate parts. When there is one wrongful act it does not furnish a basis for more than one criminal prosecution. (State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 [1976]; State v. Dorsey, 224 Kan. 152, Syl. ¶ 8, 578 P.2d 261 [1978].) The convictions and sentences on count twelve are vacated and set aside.
The seventh point concerns the giving of an instruction on recent possession of stolen property. In State v. Crawford, 223 Kan. 127, 573 P.2d 982 (1977), this court held the giving of the instruction, while no longer favored, was not error under the facts and circumstances of that case. In the present case the court advised the jury that the presumption only arises if the possession is recent, and it is overcome if there is a reasonable doubt the defendant possessed the stolen property. Again we do not favor giving this instruction but under the facts and circumstances of the case the giving of the instruction did not amount to reversible error.
The eighth point is raised by Hardyway. He contends the court’s instruction limiting the use of evidence relating to the Pawnee Plaza Mall conspiracy to him was error because it emphasized the testimony. We do not agree. Such a limiting instruction is not only proper (see State v. Cantrell, 201 Kan. 182, 188, 440 P.2d 580, cert. den. 393 U.S. 944, 21 L.Ed.2d 282, 89 S.Ct. 315 [1968]) but in certain instances may be required in order to afford a codefendant a fair trial (see State v. Sullivan & Sullivan, supra, Syl. ¶ 4).
The ninth point raised by Hardyway concerns the refusal of the court to grant a judgment of acquittal on the Pawnee Plaza Mall charge. A co-conspirator’s testimony standing alone may be sufficient to prove a charge of conspiracy. (State v. Roberts, supra, p. 60.) As to the sufficiency of the present evidence see State v. Moody, supra, where the testimony of Ray Meeks concerning an identical charge against Moody was held to be sufficient. The point is without merit.
In summary the convictions and sentences on count thirteen (criminal injury to persons) and on count twelve (robbery at Grove IGA in taking the revolver) are vacated and set aside. The balance of the convictions and sentences are affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from an order of the Sedgwick County District Court finding Charlotte Ann White, age seventeen, was not a fit and proper person to be dealt with under the Kansas Juvenile Code and directing that she should be tried for first degree murder as an adult under the provisions of K.S.A. 1977 Supp. 38-808(fc). There is no argument about the procedural aspects of the district court hearing and the sole question on appeal is whether the State presented sufficient evidence to support the findings of the trial court.
K.S.A. 1977 Supp. 38-808(b) provides in part:
“In determining whether or not such finding should be made, the court shall consider each of the following factors: (1) Whether the seriousness of the alleged offense is so great that the protection of the community requires criminal prosecution of the child; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) the maturity of the child as determined by consideration of the child’s home, environment, emotional attitude and pattern of living; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the record and previous history of the child; (6) whether the child would be amenable to the care, treatment and training program for juveniles available through the facilities of the court; and (7) whether the interests of the child or of the community would be better served by criminal prosecution of the child.”
Charlotte Ann White was charged in a petition with committing an act of delinquency by “unlawfully killing a human being, to-wit: James E. Woffard in a malicious, willful, deliberate manner and with premeditation, and such killing was committed in the perpetration of the crime of aggravated assault, a felony.”
At the hearing on the motion alleging Charlotte Ann White was not a fit and proper person to be dealt with under the Kansas Juvenile Code, the state offered absolutely no evidence, other than the original petition, to support its allegations. The assistant district attorney made a lengthy opening statement and argument in which he referred to each of the seven factors set out in the statute but offered no evidence in support of his statements. It appears to be the position of the state that the bare allegations of the petition alleging delinquency, together with argument by the district attorney, is sufficient. The trial court evidently agreed. We do not.
At the close of the state’s argument, counsel for the juvenile moved that the motion of the state be denied. The motion was overruled and defense counsel was then placed in the position of going forward with evidence or resting at that point and taking an appeal. Defense counsel proceeded to introduce evidence and it is sufficient to say that such evidence, viewed in its entirety, was favorable to the position of the defendant that she should be dealt with under the Kansas Juvenile Code.
The question of the sufficiency of the evidence to support a finding that a juvenile should be tried as an adult has been before this court on several occasions. In re Ferris, 222 Kan. 104, 563 P.2d 1046 (1977); In re Harris, 218 Kan. 625, 544 P.2d 1403 (1976); State v. Shepherd, 213 Kan. 498, 516 P.2d 945 (1973); In re Patterson, Payne & Dyer, 210 Kan. 245, 499 P.2d 1131 (1972); In re Templeton, 202 Kan. 89, 447 P.2d 158 (1968).
Prior to its amendment July 1, 1975, the statute required “substantial evidence” to support a finding that a juvenile over the age of sixteen was not amenable to the care, treatment and training program available through the facilities of the juvenile court. As amended, the statute adopted additional factors to be considered by the court and also omitted the requirement of “substantial evidence.” The factors set forth in the existing statute took into consideration and made a part of the act certain guidelines set forth in Kent v. United States, 383 U.S. 541, 16 L.Ed.2d 84, 86 S.Ct. 1045 (1966).
Despite the change in the statute to conform to the directions of Kent v. United States, our court has adhered to the rule that “substantial evidence” is required. In In re Ferris, 222 Kan. at 111, we stated:
“The only question presented is whether the trial court’s decision that the child is not a fit and proper subject to be dealt with under the Kansas Juvenile Code is supported by substantial competent evidence. (State v. Lewis, [220 Kan.] at 793; State v. Green, [218 Kan.] at 443; and In re Patterson, Payne & Dyer, [210 Kan.] at 250.)
“The term ‘substantial evidence’ has come to have a well-defined meaning in our law. It is said to be evidence possessing something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved. (State v. Green, [218 Kan.] at 443; and In re Templeton, [202 Kan.] at 94.)”
The submission by the district attorney of a petition he prepared alleging the commission of a crime of violence amounting to a felony cannot, standing alone, be considered the “substantial evidence” required under our decisions.
“The gravity of the misconduct alleged is not the controlling factor in determining the proper disposition of a juvenile offender.” In re Ferris, 222 Kan. at 110.
The complete failure of the district attorney to submit anything but argument of counsel constitutes a total lack on the part of the state to present evidence in support of the state’s position.
The motion of Charlotte Ann White at the close of the state’s “evidence” should have been sustained, the order of the district court must be reversed and the case remanded for a new hearing on the issue of whether she was a fit and proper person to be dealt with under the Kansas Juvenile Code. In re Harris, 218 Kan. at 628.
The judgment of the district court is reversed and the case remanded for further proceedings in accordance with the foregoing opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
Thomas Leo McCorgary was convicted of killing Earl Bowlin, Ruth Bowlin and Wayne Platt. These three murders occurred in 1963. McCorgary was not prosecuted until ten years later. Jury verdicts of guilty were returned on all three counts of murder in the first degree on June 12, 1974. This appeal followed.
At the outset a few facts should be given. The Bowlin murders were particularly gruesome killings. Earl Bowlin was found shot in the living room of his farm home. Four bullet wounds were in his head and one in his chest. A smeared trail of blood led from inside the house to the front porch. This convinced the investigating officers that the missing wife, Ruth Bowlin, had also been killed. The torso of Ruth Bowlin’s body was found in a shallow grave under some trees about three quarters of a mile from the Bowlin farm home.
Wayne Platt, the operator of a service station, was killed a few days later on the outskirts of Wichita. The station was in the general area a person would traverse to reach the city of Wichita after leaving the Bowlin farm. Platt was found in the restroom of his service station. He had been shot with a .45 caliber weapon. It was not until ten years later that a connection between these murders was discovered. We will develop additional facts as they become pertinent to a discussion of the points raised on appeal.
The first point raised by appellant McCorgary concerns the testimony of David Elliott, a police informer and a cell mate of McCorgary while in the Sedgwick County jail in March of 1973. McCorgary then had been charged and was later convicted of the murder of Karl Williams. The Williams conviction was reversed by this court and remanded for a new trial. See State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867, 50 L.Ed.2d 147, 97 S.Ct. 177 (1976). (McCorgary was retried and was convicted a second time for the Williams murder. His conviction was upheld in an unpublished opinion of this court.) In order to understand the point raised in the present case the cause of the reversal in the Williams conviction must be understood. The case was remanded for a new trial because of the improper use of the testimony of David Elliott, a police informer. We held in that case the state violated McCorgary’s right to counsel by surreptitiously placing the police informer in a cell with appellant in order to obtain information on the Williams murder through questioning by the police informer. We held the police could not do indirectly what they could not do directly, i.e., interrogate McCorgary in the absence of his attorney or without a knowing waiver of his right to have counsel present during questioning. Our holding in this regard was based upon Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964).
When the incriminating statements were made to Elliott on the Karl Williams murder McCorgary was being held on the Williams charge. However, at that time in addition to the incriminating statements on the Williams murder, McCorgary confessed to the killing of Earl Bowlin, Ruth Bowlin and Wayne Platt. These murders had occurred ten years before. McCorgary was not under indictment and no charges had been filed on these killings at the time he voluntarily confessed to Elliott. The confession was not made as a result of any surreptitious questioning by Elliott as to the circumstances of the Bowlin and Platt deaths.
Elliott was permitted to testify in the present case as to the incriminating statements made by McCorgary which amounted to a verbal confession that he killed the Bowlins and Wayne Platt ten years before.
The appellant contends the admission of the testimony of Elliott resulted in reversible error. He urges error on two separate grounds. The first is a Fifth Amendment argument that since Elliott was acting as a police agent during the time in question he was required to advise appellant of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966). This would appear to be the first case in which this court has been called upon to consider the application of Miranda to the use of undercover agents or informers in a custodial setting. The question has, however, been considered by several federal courts. The federal courts have held Miranda inapplicable under the present circumstances.
The first of these cases is United States v. Fioravanti, 412 F.2d 407, 413-414 (3rd Cir.), cert. denied 396 U.S. 837, 24 L.Ed.2d 88, 90 S.Ct. 97 (1969). This was an appeal from a conviction in a federal counterfeiting case. The government’s case was based largely on the testimony of a secret service agent who had worked undercover. For a short time after the defendants were arrested they were held in a detention room along with the agent whose true identity was still undisclosed. During this time the appellant made an incriminating statement which came out at trial while the agent was being cross-examined by defense counsel. The court held the statement to be admissible at trial despite the absence of the Miranda warnings. In so holding the court made the following observations:
“Here, it is inconceivable that the defendant could have experienced the coereion-born type of fear and intimidation set forth in Miranda, because when he volunteered this incriminatory statement, he thought that he was conversing with a fellow partner in crime, not a policeman. The predicate of Miranda is the inherently coercive nature of police interrogation of a person in custody; it cannot have application to a situation where one, not under stress of interrogation, simply volunteers a statement which perchance turns out to be inculpatory.” 412 F.2d at 413-414.
See also United States v. DiLorenzo, 429 F.2d 216, 219-220 (2nd Cir. 1970); United States v. Viviano, 437 F.2d 295, 300-301 (2nd Cir.), cert. denied 402 U.S. 983, 29 L.Ed.2d 149, 91 S.Ct. 1659 (1971).
In Hoffa v. United States, 385 U.S. 293, 17 L.Ed.2d 374, 87 S.Ct. 408 (1966), reh. denied 386 U.S. 940, 951, 17 L.Ed.2d 880, 87 S.Ct. 970 (1967), the exact situation presented here was considered by the United States Supreme Court. The question there framed was whether evidence obtained by the government by means of deceptively placing a secret informer in the quarters and councils of the defendant during one criminal trial so violated the defendant’s constitutional rights that suppression of such evidence was required in a subsequent trial of the same defendant on a different charge. The court in Hoffa answered the above question in the negative. The court pointed out that none of the incriminating statements which the informer heard were made in the presence of counsel, in the hearing of counsel, or in connection in any way with the legitimate defense of the second crime. The defendant was not in custody or charged with the second crime about which defendant volunteered his statements. The court declined to exclude the testimony of the informer as to the incriminating statements relevant in the subsequent case. It stated there was nothing in Massiah, in Escobedo, or in any other case which would render such testimony by the informer a violation of defendant’s Fifth or Sixth Amendment rights.
Although state action in obtaining evidence by surreptitiously placing an informer in a cell with defendant during a criminal prosecution may violate defendant’s constitutional rights in a pending case, such action does not require suppression of other evidence volunteered at the same time by defendant pertinent in a subsequent prosecution on an entirely different charge. See United States v. Gray, 565 F.2d 881 (5th Cir. 1978); Grieco v. Meachum, 533 F.2d 713 (1st Cir.), cert. denied 429 U.S. 858, 50 L.Ed.2d 135, 97 S.Ct. 158 (1976); United States v. Missler, 414 F.2d 1293 (4th Cir. 1969), cert. denied 397 U.S. 913, 25 L.Ed.2d 93, 90 S.Ct. 912 (1970); Gascar v. United States, 356 F.2d 101 (9th Cir. 1965), cert. denied 385 U.S. 865, 17 L.Ed.2d 92, 87 S.Ct. 125 (1966); United States v. Edwards, 366 F.2d 853 (2nd Cir. 1966), cert. denied 386 U.S. 908, 17 L.Ed.2d 782, 87 S.Ct. 852 (1967).
Appellant’s next point concerns the admission into evidence of photographs and a movie film depicting the scenes where the bodies of the Bowlins were found. Several pictures were taken of the gruesome and grotesque mutilation of the body of Ruth Bowlin. These showed the body as it appeared when it was removed from the shallow grave. It is contended the exhibits were prejudicial to defendant’s rights since the pictures are described as “highly inflammatory to the passions of the jury.”
We have viewed the photographs and the color movie film. The only pictures which are objectionable are those of Mrs. Bowlin’s decapitated head. There are five slightly different views of the head. These five photographs are objectionable because of the unnecessary repetition. The trial court found all these exhibits relevant to show the crime scenes and physical evidence. The pictures were proper for those purposes. The extent, nature and number of wounds inflicted are generally relevant in a first degree murder case. The unnecessary repetition of the pictures of the decapitated head is not enough in this case to justify a reversal.
Photographs and color film are not inadmissible as evidence merely because they may be gruesome and shocking provided they are true reproductions of relevant physical facts and conditions material to matters in issue. State v. Childers, 222 Kan. 32, 44-45, 563 P.2d 999 (1977); State v. King, 219 Kan. 508, 513, 548 P.2d 803 (1976).
Appellant’s third point of error is based upon a claim of lack of evidence available for his defense caused by the eleven year lapse of time between the crime and the time of trial. Several subpoenas for witnesses were returned “not found.” This establishes nothing without a showing of what these witnesses could be expected to establish by their testimony. Appellant complains of inability to find alibi witnesses. Complaint is also made because of the death of one of the police officers who was present when appellant made incriminating statements. The complaint of inability to find alibi witnesses was general in nature. As to the death of the police officer, the voluntary nature of appellant’s statements was established and the death of one of several police officers present at the time the statements were made without pointing out something more specific can hardly support a charge of prejudice and unfairness. The one matter appearing in appellant’s argument which could possibly have caused prejudice to a defense bears on a possible plea of not guilty by reason of insanity. The appellant had been adjudicated insane four years before these crimes were committed. It is possible the time between 1963 and 1973 may have played a part in counsel’s decision not to plead insanity in 1973. However, whether prosecution was in 1963 or 1973 the defense would relate to appellant’s mental condition in 1963 when the crime was committed. The four year period before the crime would remain the same regardless of when appellant was prosecuted.
Appellant asserts that this delay prior to commencing the criminal prosecution denied him due process of law. Appellant cites United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971), to support this contention.
The United States Supreme Court has held that the speedy trial clause of the Sixth Amendment is inapplicable to preindictment delay. United States v. Marion, 404 U.S. at 320. This court has reached the same holding with regard to § 10 of the Rill of Rights of the Kansas Constitution. State v. Trotter, 203 Kan. 31, 453 P.2d 93 (1969). Therefore, if appellant’s contention is to prevail he will have to show a violation of the due process clause. This question is governed by the recent case of United States v. Lovasco, 431 U.S. 783, 52 L.Ed.2d 752, 97 S.Ct. 2044 (1977). In that case an indictment was returned some 18 months after the offense was allegedly committed. The defense attempted to establish prejudice by showing the delay caused the loss of two defense witnesses. According to the government the delay resulted from their attempt to uncover additional perpetrators. The lower courts concluded that the delay was unjustified, unnecessary, and unreasonable and that the due process clause barred prosecution. The supreme court reversed. The supreme court holds “that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” 431 U.S. at 796. A showing of prejudice while necessary to support a due process claim is not sufficient in itself. Rather, “a due process inquiry must consider the reasons for the delay as well as the prejudice of the accused.” The court did, however, state in dicta that governmental delay solely “to gain tactical advantage over the accused” would violate due process. 431 U.S. at 795. A like pronouncement is made in United States v. Marion, 404 U.S. at 324.
This same conclusion was reached by this court in State v. Royal, 217 Kan. 197, 202, 535 P.2d 413 (1975), where we concluded:
“[T]wo questions must be considered in testing whether there has been an impermissible encroachment on due process rights: (1) Has the delay prejudiced the accused in his ability to defend himself, and (2) was the delay a tactical device to gain advantage over him? Affirmative answers to both questions need be supplied before it may be said that criminal charges should be dismissed.”
The speedy trial requirement of the Sixth Amendment of the United States Constitution which is also guaranteed by § 10 of the Bill of Rights of the Kansas Constitution is inapplicable to a preindictment delay, except when the governmental delay is solely for the purpose of gaining tactical advantage over the accused in which case there may well be a due process violation. From what has been said it is clear that if appellant is to prevail on this point he must show not only that he was prejudiced by the delay, but also that the delay was due solely to an attempt by the state to gain a tactical advantage over him. The appellant clearly has not established this. The state gave the following explanation of the delay at trial:
“However, [defense] counsel states that we had all the information in 1963; we did not. The later part of 1963, if my memory serves me correct, we had information from a prisoner as to statements made by the defendant about the Bolin [sic] murder case and the other case, Platt. In 1965, if my memory serves me correct, there was a statement made to another prisoner; it was not detailed, it was not what I would call sufficient to base in a review of the evidence that we had back eleven years ago. I don’t think it was sufficient, and I don’t think we had at that time sufficient evidence to issue a warrant for murder one. In 1973, there came to light, during the course of another investigation concerning this defendant, another murder, another statement of another prisoner. During that statement, it went into detail — or the defendant went into detail with this prisoner concerning two murders, that being Williams and that being the Bolin [sic] case. The body was subsequently found on the Williams case and it, through the processes, the defendant was arrested on the Williams case and went to trial. A review of that case and a review of the statements of the prisoner incarcerated with the defendant, the other two prisoners and what other information we had from 1963 in our opinion warranted the filing of a murder one, warrants on three cases, that being Wayne Platt, and the two Bolin’s [sic], Earl and Ruth.”
An examination of the record supports the state’s explanation. McCorgary’s confession to Elliott in 1973 was an important, if not an indispensable, part of the state’s case. The state acted properly in not bringing charges before that time and acted with due speed after that time. There is not the slightest indication the delay was a ploy by the state “to gain a tactical advantage over the accused.”
The appellant for his fourth claim of error argues he was deprived of a fair trial by the admission in evidence of his conviction on the Karl Williams murder charge. The evidence of the offense was admitted pursuant to K.S.A. 60-455 to show motive, intent, preparation and plan. Evidence was introduced at a separate hearing to show the similarities between the Williams murder and the Bowlin murders. The state’s argument on the motion in limine serves to point out the claimed similarities. The assistant district attorney argued as follows:
“MR. PETERS: Your Honor, the facts of the Williams case are so closely related in this case — If I might give the Court a short historical background of how this case came to light in relation to the Williams case. The Williams case was being originally started, I should say as a missing person’s report in the Wichita Police Department by a sister of Carl Williams some time in, if I remember, the summer of 1973 — was it not?
“MR. HILTON: 1972.
“MR. PETERS: You are correct. She made several trips to the city of Wichita. On the last trip she had opportunity to talk to Captain Floyd Williamson of the Wichita Police Department concerning the disappearance of her brother; and he went into some detail in the conversation concerning who Carl Williams associated with, and she mentioned the name of Tom and a name that began with Me, but she couldn’t remember the entire name; and she was asked by Captain Williamson if it was McCorgary, and she said yes that was him. Captain Williamson was familiar or knew of McCorgary’s involvement or the investigation involving the Bowlin trial. The case was ultimately assigned to Detective Drowatzky who from that standpoint worked it up and made various inquiries in various penal institutions of the United States concerning prisoners that McCorgary talked to over the years, one being Alex Cox in 1963 and Larry Dohle in 1965; and in Captain Williamson’s recommendation, David Elliott was placed in 1973 in the same cell and the Court has heard the information that he received. The information received concerned both the Bowlins and their death and also Carl Williams. The case was filed without a body having been discovered some time in 1973 — the exact date I can’t remember which — I believe—
“MR. HILTON: March.
“MR. PETERS: Yes, March of 1973, the body was shortly thereafter discovered basically from the media covering the case being filed without a body, and it was found in a wooded area behind Pinsker Steel in a very shallow grave, so shallow in fact, a skeletized portion of a hand was above ground. The body according to the coroner’s report of Carl Williams’ death was caused by — and I believe the terms he used — a massive oppression blow to the skull. The testimony revealed that there was an immense amount of blood on the defendant after he killed Carl Williams. We believe that — and the defendant was convicted in, I think of October of 1973 of second-degree murder and aggravated robbery of Carl Williams.
“The case we have at hand, the body of Mrs. Bowlin was disposed of in a very very shallow grave. It is an immense bloody killing as evidenced from the interior of the house and the blood. The body was dismembered. The disposal of the body from statements was to hamper or preclude identification of the body as we believe the reason for the burial in behind Pinsker Steel in a remote desolate area was the motive we believe from statements of the defendant was the robbery of the Bowlin family from the sale of livestock and monies; the motive we believe of Carl Williams was robbery in that the pockets — in the body as it was assumed [sic] and I refer to the Williams killing — pockets of his trousers were all turned out indicating a robbery motive. The car of Carl Williams was taken, also a robbery motive, and he was convicted of that robbery.
“The cases we feel, Your Honor, are similar in the fact of a brutal killing, the disposal of the bodies in shallow graves in remote desolate areas, robbery always being present as a motive, and modus operandi. We believe that the Williams case is an offense similar to the Bowlin case for that reason methods of operation being — If I might look over the Court’s shoulder — preparation and plan, modus operandi are methods of operation is included in preparation and plan. We think intent is another similarity in the two cases that the intent being to murder.
“The remarks of the defendant, of statements have always been that you don’t leave live witnesses when you rob. We feel that that is also applicable to the Platt case, that robbery was the motive and the old saying: Dead men don’t tell no tales. Being applicable, for that reason, we feel not only should we be allowed to mention the similarities on opening statement, but to present evidence to the testimony of Detective Drowatzky and the Court’s files of that conviction.”
Much has been written concerning the use of the exceptions in K.S.A. 60-455. The case annotations following the statute attest to this fact. The motive exception under the statute is explained and applied in State v. Craig, 215 Kan. 381, 383, 524 P.2d 679 (1974). Motive for the Bowlin murders could hardly be shown by proof of the Williams murder eleven years later.
The intent exception was urged; however, intent was not substantially in issue. The Bowlin and Platt killings were done intentionally and this was not questioned at trial. Insanity was not raised as an issue at trial. The felony murder charges made it unnecessary to prove state of mind such as deliberation, premeditation, and malice. The meaning of preparation and plan was explained in State v. Marquez, 222 Kan. 441, 446-447, 565 P.2d 245 (1977). The Williams murder, occurring some ten years after the Bowlin and Platt murders, clearly could not have been in preparation for or part of the plan for the earlier Bowlin and Platt murders.
For the reasons stated the trial court did err in admitting the evidence of the subsequent crime under the exceptions instructed upon. However, there was an issue of the identity of the perpetrator of the Bowlin and Platt murders. The fact that the Williams murder occurred subsequent in time to the offenses being tried does not affect its admissibility to establish identity. State v. Morgan, 207 Kan. 581, Syl. 2, 485 P.2d 1371 (1971); State v. Miller, 204 Kan. 46, 48, 460 P.2d 564 (1969). If evidence of other crimes is otherwise admissible, remoteness in time of the other offenses affects only the weight and probative force and not the admissibility of the evidence. State v. O’Neal, 204 Kan. 226, 461 P.2d 801 (1969).
The admission of evidence of the other crime and the instruction of the court authorizing and limiting that evidence to motive, intent, preparation and plan was clearly in error. Under the balancing procedure suggested in State v. Bly, 215 Kan. 168, Syl. 3, 523 P.2d 397 (1974), the evidence of the other crime should not have been admitted even on the question of identity. The probative value and force of the evidence of the Williams murder pointing to the defendant and identifying him as the perpetrator of. the Bowlin and Platt murders was not strong. When weighed against the tendency to prejudice the jury it should have been excluded. The question then is whether its admission can be considered harmless beyond a reasonable doubt.
The erroneous admission of evidence of a crime under one exception in K.S.A. 60-455 is not made harmless merely by the fact it would have been admissible under another exception not instructed on. State v. Marquez, 222 Kan. at 447-448. Therefore, the court must examine the whole record to see whether the admission of the evidence was harmless or prejudicial under the harmless error rule. See State v. Thompson, 221 Kan. 176, Syl. 5, 6, 558 P.2d 93 (1976), for the harmless error rule and its application.
We consider the evidence against the appellant in this case to be overwhelming. Appellant told three different cell mates he killed Earl Bowlin, Ruth Bowlin and Wayne Platt. He made these incriminating statements on three separate occasions. The circumstances under which these incriminating statements were made lend credence to the state’s claim of voluntariness. All three of the cell mates testified at this trial. McCorgary’s cap was found near the place where Ruth Bowlin’s body was found. This was physical evidence tying him to the crimes. Other evidence pointed to McCorgary. Footprints at the Bowlin farm matched those near where Ruth Bowlin’s pocket book was found. McCorgary’s story that he first washed and then burned his car to destroy traces of human blood was verified by the police. This case against appellant did not arise from a single murder. The prosecution was for three murders. The other-crime evidence of the Williams murder was tied into the Bowlin and Platt murders by reason of the testimony of the police informer Elliott. For these reasons the evidence of the Williams crime lost some, if not most, of its prejudicial impact. The evidence of guilt in the present case is of such direct and overwhelming nature it can be said the erroneous admission of the Williams evidence could not have affected the result of the trial. Such admission of other-crime evidence is harmless error.
The final point raised by appellant concerns a failure of the trial court to declare a mistrial after Mrs. Kelley, a prospective juror on voir dire, expressed a strong feeling in front of other prospective jurors that what she had read in the paper about these murders was true. She was a cousin of the appellant and was excused from jury service. Appellant made no contemporaneous objection. However, a motion for mistrial was filed by appellant before voir dire was completed. The motion was denied but the jury was admonished to disregard statements by prospective jurors. They were further admonished not to consider what they may have read in newspapers.
K.S.A. 22-3423(c) covers grounds for a possible mistrial in this case. This subsection provides: “Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; . . .” The granting of a mistrial on this ground lies within the discretion of the trial court. State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976). A mistrial will not be declared under K.S.A. 22-3423(c) unless the rights of either the defendant or the state have been substantially prejudiced. State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396 (1976). No such showing has been made in this case. The statements of Mrs. Kelley were inadvertent and it is conceded that no intentional action by the state precipitated these improper statements.
The judgment is affirmed.
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The opinion of the court was delivered by
PRAGER, J.:
This is an action brought by the plaintiff, Gerald Braun, to recover the balance due on a note and to foreclose a security agreement which were executed in connection with the sale of a grocery business. At the time the petition was filed, the plaintiff-creditor obtained the ex parte appointment of a receiver. The receiver was in the possession of the grocery business for three days. Then, on application of the defendants, the receivership was dissolved by the district court. The defendants, Robert and Judy Pepper, filed, along with their answer, a counterclaim seeking to recover damages on the theory of wrongful appointment of a receiver. After a trial to the jury, the district court awarded the defendants damages for a wrongful receivership. The plaintiff Braun has appealed.
The essential facts in the case are as follows: In January of 1970, plaintiff Braun contracted to sell a grocery store to defendants Pepper. The purchase price was secured in part by the store’s inventory. The contract provided that the Peppers should not permit the inventory of the store to fall below $18,000 for a period as long as two weeks. In the event it did so, the seller Braun could, at his option, declare the agreement null and void, consider the full amount of purchase price due, and take or regain possession of the property. In addition, under the agreement the Peppers agreed to furnish copies of the inventory of merchandise every three months and to furnish copies of weekly sales and purchases. The Peppers took possession and operated the grocery store. For a period of time they purchased grocery items from the Fleming Company. Apparently a dispute arose between the Peppers and the Fleming Company. The Peppers then began to purchase grocery items from other sources. The Peppers supplied to Braun quarterly inventories and statements of weekly sales and purchases. The plaintiff did not know that the defendants were securing merchandise from sources other than the Fleming Company. He assumed that the inventory was declining and became concerned about his security for the Peppers’ debt. Plaintiff Braun then consulted counsel and filed this action. The petition requested that a receiver be appointed ex parte. The district court conducted a hearing at which evidence was presented. On April 8,1971, the court appointed a receiver, requiring the plaintiff to furnish a bond for the receiver pursuant to K.S.A. 60-1302 and also to furnish a bond for himself under K.S.A. 60-1304. Bonds were furnished and the receiver, Paul O. Dart, took possession of the grocery store on April 9,1971. On April 12, 1971, on motion of the Peppers, the order appointing the receiver was set aside and the defendants Pepper reassumed possession of the store. Thereafter, prior to trial, the grocery store burned. The debt of plaintiff Braun was paid out of the insurance proceeds, except for the sum of $1,000 plus interest which was due under the Peppers’ note. The only issue remaining to be tried was the right of the Peppers to recover from Braun on their counterclaim seeking damages for the wrongful appointment of the receiver.
The jury was submitted certain special questions stating issues of fact to be determined. Based upon the jury’s findings of fact, the district court entered judgment in favor of the Peppers on their counterclaim. In so doing, the district court found as matters of fact that, on the date of the appointment of the receiver, the inventory of the grocery store exceeded $18,000; that plaintiff did not have information from a reliable source that the defendants were threatening to dispose of the inventory; but that the plaintiff Braun had information available to him upon which he relied which would cause a reasonably prudent man to believe that the inventory of the store was below the contract minimum of $18,000. The district court sustained the jury’s award of damages to the Peppers on the theory that a receiver had wrongfully been appointed. The plaintiff Braun has appealed to this court contending that the district court erroneously determined certain questions of law and that the evidence did not support the verdict of the jury and certain findings of fact made by the trial court.
The first issue raised by the plaintiff on appeal is that the trial court erred in failing to hold as a matter of law that there can be no recovery on a theory of wrongful appointment of a receiver unléss the appointment of the receiver was obtained with malice and without probable cause. Plaintiff argues that it is not sufficient for the debtor to show that the receivership was ultimately terminated and the property restored to the possession of the debtor. Stated simply, it is the position of the creditor Braun that an action by a debtor to recover damages for the wrongful appointment of a receiver is essentially an action for malicious prosecution and that the same rules which govern liability apply in both actions. A determination of this issue requires us to consider carefully the nature of an action for malicious prosecution and to compare it with an action for the wrongful appointment of a receiver.
An action for malicious prosecution may arise after a person has been charged with a crime and the criminal prosecution is terminated in favor of the defendant. The defendant, at that point, may become a plaintiff and bring an action for malicious prosecution against the person who instigated the criminal prosecution. To maintain successfully an action for malicious prosecution, the plaintiff must prove that the defendant initiated the criminal proceeding of which complaint is made, that the defendant in so doing acted without probable cause and with malice, and that the proceeding terminated in favor of the plaintiff. (Stohr v. Donahue, 215 Kan. 528, 527 P.2d 983 [1974]; Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P.2d 269 [1970]; Messinger v. Fulton, 173 Kan. 851, 252 P.2d 904 [1953]; Haines v. Railway Co., 108 Kan. 360, 195 Pac. 592 [1921].) In this state, damages may also be recovered for the malicious prosecution of a civil suit. The basic elements of the cause of action are the same as those in an action for malicious prosecution of a criminal action. (Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321, 496 P.2d 1358 [1972]; Ahring v. White, 156 Kan. 60, 131 P.2d 699 [1942].)
The plaintiff Braun maintains that an action for the wrongful appointment of a receiver is, in effect, an action for malicious prosecution of a civil action and that liability can attach only where' the person initiating and procuring the receivership acted without probable cause. In taking this position, the plaintiff Braun relies upon the finding of the trial court that Braun had information available to him at the time the receiver was appointed upon which he relied which would cause a reasonably prudent man to believe that the inventory of the store had dropped below the $18,000 minimum.
There are cases in other jurisdictions which hold that an action for wrongful receivership is identical with an action for malicious prosecution of a civil action. The only state which has adopted a pure malicious prosecution approach to an action for wrongful receivership is Wisconsin. (Luby v. Bennett, 111 Wis. 613, 87 N.W. 804 [1901].) Other jurisdictions take this approach where the action is not brought upon the bond which has been provided in the receivership proceeding. A majority of the jurisdictions take what has been described as the “strict liability approach.” Under the strict liability approach, once a court has determined that the original order appointing a receiver was wrongful, the person obtaining the receivership is considered a trespasser ab initio and it is not necessary for the injured party to show that the appointment was procured maliciously or without probable cause. (McKinney v. Nayberger, et al., 138 Or. 203, 2 P.2d 1111, reh. den. 138 Or. 216, 6 P.2d 228 [1931]; K.C. Oil Co. v. Harvest Oil & Gas Co., 80 Okla. 61, 194 Pac. 228 [1920]; Cecil v. Cecil's Exors. and Trustees, 188 Ky. 700, 223 S.W. 1092 [1920]; Strum v. Blair, 182 Ill. App. 413 [1913]; Thornton-Thomas Co. v. Bretherton, et al., 32 Mont. 80, 80 Pac. 10 [1905]; Haverly v. Elliott, 39 Neb. 201, 57 N.W. 1010 [1894].)
The Kansas cases on the subject do not clearly determine the issue presented here. There is, however, language in the Kansas cases involving receiverships and other provisional remedies which support the conclusion that it is not necessary to prove malice or probable cause in order for an injured party to recover damages for the wrongful appointment of a receiver. Before considering the Kansas receivership cases, it would be helpful to analyze the action for wrongful appointment of a receiver and to compare it with the usual types of actions brought for malicious prosecution of a civil action. It appears to us that there is a sound basis for distinguishing the two types of actions. The usual case of malicious prosecution of a civil action is based on the mere filing of the action where the debtor’s possession of his property is not disturbed. In the typical wrongful receivership case, the injured party has been divested of possession of his property and prevented from using the same.
By statute, the legislature has provided for certain provisional remedies which may be utilized by a creditor for the purpose of enforcing or satisfying a debt upon which the primary cause of action is based. Examples of provisional remedies are attachment (K.S.A. 60-701, et seq.), garnishment (K.S.A. 60-714, et seq.), and receivership (K.S.A. 60-1301, et seq.). In each of these statutory provisional remedies the legislature has provided special protections to the debtor. In each instance, the pertinent Kansas statute either makes mandatory or authorizes the trial court to require a bond to be provided by the creditor in order to protect the debtor who may suffer damages as the result of the wrongful use of the provisional remedy by the creditor.
Where an attachment is wrongfully issued, an action for damages is provided in this state. In such an action, this court has held that it is unnecessary for the plaintiff to allege a want of probable cause for the suing out of the attachment. In M’Laughlin v. Davis, 14 Kan. (2d ed.) *168 (1875), the court stated:
“. • . A party is entitled to an attachment only when certain facts exist, not when there is probable cause to believe that they exist. ... If they do not exist, the attachment is wrongfully issued, and the party causing it to issue is liable for all the damages actually sustained. . . .” (p. “169.)
The same rule applies where an action is brought to recover damages for a wrongful garnishment. In Jacobs v. Greening, 109 Kan. 674, 202 Pac. 72, (1921), it was held that an action for wrongful attachment, not brought upon the bond, may be main tained without malice being pleaded or proved and that the same rule applies to a wrongful garnishment. In an action to recover damages for wrongful attachment and garnishment it was pointed out that, even where the absence of probable cause is requisite for recovery, “probable cause” must exist as a fact and not merely in the mind of the attaching creditor. (Lukens v. First National Bank, 151 Kan. 937, 101 P.2d 914 [1940].) In Lukens this court stated that it has followed the more modern rule which does not recognize probable cause as a sufficient defense to a claim for actual damages for wrongful garnishment. It is important to note that the court emphasized that liability on the garnishment bond given under G.S. 1935, 60-942, was based simply on “wrongful” garnishment and not on garnishment that was malicious or without probable cause. It is clear from these cases that, in an action for wrongful attachment or wrongful garnishment, it is not necessary for the injured party to prove malice or absence of probable cause. Why should a different rule apply in a case of wrongful receivership where the receivership is obtained ex parte?
We believe that there is equal, if not more, justification for imposing the same liability for the wrongful ex parte appointment of a receiver as there is in cases involving wrongful attachments or garnishments. Protection for a debtor is especially justified where a creditor obtains the appointment of a receiver ex parte without an opportunity for the debtor to be heard. It is well-settled that the appointment of a receiver, ex parte and without notice,'to take over one’s property is one of the most drastic actions known to law or equity. (Redfearn v. Bronson Mutual Telephone Co., 189 Kan. 105, 367 P.2d 76 [1961].) In Browning v. Blair, 169 Kan. 139, 145, 218 P.2d 233, the court stated that the power to appoint a receiver is limited almost exclusively to cases where it is necessary in order to prevent fraud, to save the subject of litigation from material injury, or to rescue it from threatened destruction. It is not properly exercised in any case where there is no fraud or imminent danger of the property sought to be reached being lost, injured, diminished in value, destroyed, wasted, or removed from the jurisdiction. In the opinion in Browning the court uses the following language:
. . It is only in cases of the greatest emergency that courts are warranted in tying up a business or property by appointing a receiver to take it from the control of the owners; neither should a receiver be appointed unless it is absolutely necessary and there is no other adequate remedy. A receiver should never be appointed where it may do irreparable injury to others or where greater injury is likely to result from such appointment than if none were made. (Feess v. Bank, 84 Kan. 828, 115 Pac. 563.)” (p. 145.)
Under the Kansas statutes a receiver may be appointed without notice to the adverse party, though generally this court has taken the position that “such a thing should not be done.” (Elwood v. National Bank, 41 Kan. 475, 21 Pac. 673 [1889].) The subject of receivers may be found in K.S.A. 60-1301 through 60-1305. K.S.A. 60-1301 authorizes a judge or justice to appoint a receiver and sets forth his duties. K.S.A. 60-1302 requires the receiver, before entering upon his duties, to execute an oath and a bond “with sufficient sureties to such persons on such conditions and in such sum as the judge may direct.” K.S.A. 60-1303 provides that the receiver shall perform such acts concerning the property or business as the judge may authorize.
K.S.A. 60-1304 authorizes the court to require the petitioner or applicant seeking the appointment of a receiver to provide a bond in addition to the receiver’s bond required by 60-1302. It should also be noted that under 60-1304 the debtor must be provided a notice and an opportunity to be heard unless the judge shall, after the introduction of evidence and a record of the proceeding is made, make a finding that immediate and irreparable injury is likely to result.
We have concluded that the same rule should apply in an action to recover damages for the wrongful ex parte appointment of a receiver as in an action to recover damages for a wrongful attachment or garnishment. In an action for wrongful receivership, damages are recoverable if the facts, as established at the trial or hearing, show that a receivership was not justified. It is not necessary for the debtor to show that the appointment of the receiver was obtained maliciously or without probable cause. Such a holding is consistent with the past decisions of this court pertaining to actions for the wrongful ex parte appointment of a receiver.
In Bowman v. Hazen, 69 Kan. 682, 77 Pac. 589 (1904), it was held that where the appointment of a receiver was absolutely void, those who procured the appointment were trespassers ab initio and were liable as such to the parties suffering loss as the result of the wrongful appointment. In Petersime Incubator Co. v. Ferguson, 143 Kan. 151, 53 P.2d 505 (1936), a creditor brought an action in replevin to recover the possession of three incubators from the defendants, who were operating a chicken hatchery. The plaintiff secured the ex parte appointment of a receiver to take charge of the business without giving defendants an opportunity to be heard. The defendants filed a counterclaim seeking to recover damages for wrongful receivership. The creditor, in defense of the counterclaim, argued that the gist of the counterclaim was an action for malicious prosecution and since there was no evidence of malice the action must fall. In the opinion the court stated that the counterclaim was not brought for malicious prosecution, but was for wrongfully procuring the appointment of a receiver. The supreme court pointed out that the trial court had found that the plaintiff had no just grounds for obtaining an ex parte appointment of a receiver and there was ample evidence to sustain this finding. The court clearly rejected the argument that an action for wrongfully procuring the appointment of a receiver is the same as an action for malicious prosecution. As pointed out in Lukens v. First National Bank, supra, “probable cause” must exist as a fact and not merely in the mind of the attaching creditor. In other words, if the debtor, who has been injured by the wrongful ex parte appointment of a receiver, can show that the true facts did not justify the appointment of a receiver and the receivership is ultimately dissolved, then the injured debtor is entitled to recover damages resulting from the wrongful receivership even though the creditor in procuring the appointment of the receiver acted without malice and on facts which reasonably appeared to him to constitute probable cause.
First Federal Savings & Loan Ass’n v. Moulds, 202 Kan. 557, 451 P.2d 215 (1969), was an action to foreclose a mortgage on real property. The defendant-debtor defaulted. On motion of the plaintiff-creditor, a receiver was appointed and authorized to collect the rents from the property during the redemption period. Thereafter, the debtor filed a motion asking that the receivership be set aside and sought damages for wrongfully procuring the receivership. The district court upheld the appointment of the receiver and denied damages. On appeal, we set aside the receivership order, holding that the receiver was wrongfully appointed. We also held that the trial court erred in refusing to assess damages against the creditor for wrongfully procuring the receivership. We stated that one who causes or procures the wrongful appointment of a receiver is liable for the resultant damages, including attorney fees of counsel employed to procure vacation of the order appointing the receiver. There is nothing in the opinion which requires the aggrieved party to prove malice or want of probable cause.
In the present case the plaintiff Braun obtained the ex parte appointment of a receiver. The Peppers were not afforded an opportunity to present evidence or to make a showing that the inventory of the grocery store was not in danger of being concealed or taken away or that any fraud was about to be committed on the plaintiff Braun. On the basis of the authorities cited above, we have concluded that, in order for the Peppers to recover damages on the theory of wrongful appointment of a receiver, it was not necessary for them to plead or prove as a part of their cause of action that the plaintiff Braun, in obtaining the appointment of the receiver ex parte, acted maliciously or without probable cause. We find no error in the trial court’s conclusion of law so holding.
The plaintiff’s second point on appeal is that it was error for the district court to rule that advice of counsel is not a complete defense in an action to recover damages for wrongful receivership. This point is essentially the same point just discussed above. Counsel for the plaintiff has not cited for us any cases which make advice of counsel a defense in an action to recover damages for the wrongful appointment of a receiver, nor have we found any. We find no error in the ruling of the trial court in this regard.
The last point raised by plaintiff on the appeal is that the finding of the jury and the trial court that the inventory of merchandise at the grocery store was above the contract minimum for the two or three weeks preceding April 8, 1971, is not supported by substantial competent evidence. We have carefully considered the evidentiary record in this case and find the evidence on this issue to be conflicting. We note that, immediately upon taking possession of the grocery store, the receiver took an inventory which disclosed that the value of the merchandise on hand was in excess of $25,000, well above the $18,000 minimum required by contract. Suffice it to say, this testimony, along with other testimony in the case, was sufficient to support the finding of the jury and of the trial court that the inventory at all times exceeded the contract minimum. The evidence does not establish that a receivership was necessary to prevent fraud or to save the subject of the litigation from injury or destruction. The issues presented in the case were essentially issues of fact to be determined from the testimony of the witnesses. We find no justification for setting aside any of the findings of fact or conclusions of law made by the trial court.
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiffs from an adverse judgment entered by the district court in a declaratory judgment action. The sole question is whether K.S.A. 1975 Supp. 41-2601(b)(3) violates the equal protection clause of the Fourteenth Amendment of the Constitution of the United States and § 1 of the Bill of Rights of the Constitution of Kansas.
Plaintiffs are holders of class B club licenses, issued by the Director of Alcoholic Beverage Control of the Kansas Department of Revenue, pursuant to K.S.A. 1975 Supp. 41-2601(b)(3). None of the plaintiffs’ clubs are located on the premises of a hotel. Plaintiffs commenced this action to secure a judicial determination that the proviso contained in K.S.A. 1975 Supp. 41-2601(b)(3) is unconstitutional. The statute reads in applicable part as follows:
“A class B club shall consist of a premises operated for profit by a corporation, partnership or individual, known as the management, to which premises the management allows persons, known as members, to resort for the consumption of food and/or alcoholic beverages and for entertainment. As a prerequisite for attaining membership the management must screen the applicants for good moral character. No membership may be granted within ten (10) days of the application therefor. Each membership must be renewable annually upon payment of the annual dues of at least ten dollars ($10): Provided, however, Any class B club located on the premises of a hotel as defined in K.S.A. 36-101 may establish rules whereby guests registered at said hotel, who are not residents of the county in which said club is located, may file application for temporary membership in said club, which membership, if granted, shall only be valid for the period of time that they are a bona fide registered guest at said hotel. Said temporary membership shall not be subject to the waiting period or dues requirement contained in this section.”
Plaintiffs contend that the proviso of the statute which authorizes the granting of temporary memberships by class B clubs located on hotel premises, to registered guests who are nonresidents of the county, constitutes a denial of equal protection in that it does not extend the same privilege to all class B clubs.
The trial court’s findings and conclusions as set forth in its final order, are:
“2. The Court finds enactments of the legislature are surrounded with presumption of constitutionality and that presumption applies to the facts set out in plaintiff’s petition in this case.
“3. The Court adopts the position of the Supreme Court in Tri-State Hotel Co. vs. Londerholm, 195 Kan. 748 at page 760 concerning the determination of the reasonableness of a classification to-wit:
‘(1) A classification having some reasonable basis does not offend against Sections 1 and 2 of our Bill of Rights merely because it is not made with mathematical nicety or because in practice it results in some inequality; (2) there is no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities — in a classification for governmental purposes there need not be an exact exclusion or inclusion of persons and things; (3) if any state of facts reasonably can be conceived that would sustain the Act, their existence at the time the law was enacted must be presumed; (4) within the zone of doubt and fair debate, the legislative determination is conclusive upon the court and must be upheld, and (5) one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’
“4. The Court finds that plaintiff has not met his burden under the dictates of Tri-State Hotel Co. vs. Londerholm, supra, in showing that the classifications complained of have no reasonable basis or that the same are arbitrary. The Court further finds that K.S.A. 1975 Supp. 41-2601(b)(3) is constitutional and within the purview of the purpose for which the legislature enacted Article 26 of Chapter 41.”
Justice Owsley, in the recent case of State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978), said:
“Our next concern is whether the statute offends the equal protection clause. When considering this question we must first determine the proper test. Traditionally, the yardstick for measuring equal protection arguments has been the 'reasonable basis’ test. The standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101:
“ ‘ . . . The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .’
“In Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684, it was stated:
“ ‘ . . . If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 . . .’ (p. 485.)
“A statute comes before the court cloaked in a presumption of constitutionality and it is the duty of the one attacking the statute to sustain the burden of proof. . . .”
Are there reasonable bases for permitting hotel-based clubs the privilege of granting temporary memberships, and not permitting all other clubs to do the same? We hold that there are. To require hotel guests to pay an annual fee and wait 10 days would effectively deny them the privilege of club membership. While guests are registered at a hotel, the club located therein has an available and effective way to check on the facts of hotel registration and residence, which other clubs do not have. Enforcement of the present exception to the rule is practical; enforcement, if the exception were to be granted to all clubs, would be most difficult.
The purpose of the Kansas Liquor Control Act, of which K.S.A. 1975 Supp. 41-2601 is a part, is to define and regulate places where alcoholic beverages might be lawfully consumed within the state. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 761, 408 P.2d 877 (1965). We hold that the statute here challenged is a reasonable regulatory measure.
The principal case relied upon by plaintiffs is Mayhue v. City of Plantation, Florida, 375 F.2d 447 (5th Cir. 1967). The facts of that case and the statute there challenged differ mightily from those at hand, and we do not find its rationale persuasive in the present context.
What plaintiffs are seeking is to have this court extend the temporary membership privilege to off premises clubs. This lies within the legislative, not the judicial, realm.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant, Ralph M. McBarron, was convicted of burglary (K.S.A. 21-3715) and theft (K.S.A. 21-3701). The prosecution arose out of a burglary at the VFW Club building in Salina on December 7, 1975. Entry to the building was gained by use of a rope removed from the flagpole. The rope was attached to the frame of a skylight. The burglar lowered himself through the skylight and then through a false ceiling into the club’s bar. The only issue at the trial of the case was the identity of the defendant, McBarron, as one of the participants in the crime.
Difficulties arose in this case because an overly zealous Salina police officer first made an illegal arrest of the defendant and his companion, Wayne Morse, and some time later proceeded to make an illegal entry into the defendant’s motel room. As a result of the police officer’s misconduct, the trial court, after a hearing on the defendant’s motion, suppressed the statements of the defendant, McBarron, and his companion. The court suppressed all of the physical evidence of the crime which was found in their motel room. Because of the suppression of such evidence, the prosecution was seriously crippled in the presentation of its case.
The facts in this case were not greatly in dispute and were essentially as follows: McBarron, Wayne Morse, and Victor Herrera were all members of the Army stationed at Fort Riley. The three companions arrived in Salina on December 6, 1975. During the evening, Herrera checked into the Flamingo motel. At about 3:00 a.m. on the morning of December 7, the three men left the motel in Herrera’s automobile and drove around Salina. At about 4:00 a.m. Herrera dropped off Morse and McBarron at a point near the VFW building, about one-half block from the bus depot. The bus depot was the only building open in the downtown area at the time. In attempting to find his way back to the motel, Herrera became lost. At 4:30 a.m., Salina police officer Kenny Brown observed Herrera driving slowly up and down the street near the VFW building. It appeared to officer Brown that Herrera was looking around for something or somebody. The officer then stopped Herrera and asked him for his name and where he was going. Herrera gave his name to officer Brown and advised him that he was looking for a motel room. Officer Brown then requested officer Lane to help Herrera find a motel room. Lane directed Herrera to Ninth Street and gave him the name of two motels, including the Flamingo motel.
At 7:00 a.m. on the morning of December 7, officers Smith and Lane observed two pedestrians walking in the 200 block of North Santa Fe, a main street in the business district of Salina, not far from the VFW building. Officer Smith testified that the two pedestrians were not acting in any suspicious manner and that they appeared to be very young. Apparently the police had been informed of two young students who were AWOL from a military school in Salina. The officers decided to stop the subjects. The two pedestrians, McBarron and Morse, produced military ID cards. The two men advised the police officers that they were staying at a local motel with a friend and were looking for a place to get breakfast. The police officers, without probable cause, arrested McBarron and Morse and took them to the police station. They were released after a short time when a check with Fort Riley showed them not to be absent from their post without leave.
At about 8:00 a.m. officer Smith learned that a patrol car had been sent to the VFW building to investigate a burglary. Smith was advised over the radio that when Morse and McBarron were being transported to the police station by officer Lane, they had called officer Lane’s attention to a white two-door Ford with an out-of-state license tag which they said was being driven by a friend. They mentioned that they were staying in the motel room with their friend. On receipt of that information, officer Smith proceeded to the Flamingo motel, obtained the. key to the defendants’ room, and forcibly entered the motel room without invitation, consent, or warrant and in an abusive and illegal manner. Upon entering the room officer Smith placed Morse, Herrera, and McBarron under arrest. Statements were obtained from the three men and there was a subsequent search of the car and motel room. Thereafter Morse, McBarron, and Herrera were charged with burglary and theft.
The defendants filed motions to suppress the evidence seized and certain statements taken from the defendants by the police officers. The motions to suppress were consolidated and heard in a single hearing. After hearing all of the testimony, the trial court found that the initial arrest of McBarron and Morse and their interrogation and detention at the police station were unlawful. The trial court also found from the evidence that the officers had entered the motel room at the Flamingo without a search warrant and that the arrest of the defendants and search of the room were unlawful. The trial court sustained the motions of all three defendants and suppressed their statements along with the physical evidence seized by the officers. The state then proceeded to try Morse alone. He was acquitted by the jury. Faced with the possibility that the jury would reach the same verdict on a trial of defendant McBarron, the state granted immunity to Victor Herrera and compelled him to testify at the trial of the defendant McBarron. With the testimony of Herrera, plus an incriminating statement made by McBarron to another inmate in the Saline county jail and evidence of a prior conviction of McBarron for burglary in California, McBarron was convicted of burglary and theft. He appeals from that conviction, claiming trial errors.
The first point raised by the defendant McBarron on the appeal is that the trial court erred in admitting into evidence the prior conviction of McBarron for the offense of burglary in California committed about twenty months prior to the burglary of the VFW in Salina. This prior conviction was admitted pursuant to K.S.A. 60-455 to prove plan and identity. The prosecutor in his brief concedes that the state could not properly offer the previous conviction to prove plan. We agree. In State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978), it was held that where a similar offense is offered under K.S.A. 60-455 for the purpose of proving plan, it should be admitted for that purpose only where the evidence shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan, or scheme directed toward the doing of the offense charged. To the same effect is State v. Marquez, 222 Kan. 441, 565 P.2d 245 (1977). In this case the burglary by the defendant McBarron in California twenty months prior to the VFW burglary was completely unrelated to the crime for which the defendant was charged in this case. Evidence of the California conviction was clearly not admissible to prove plan.
The California conviction was admissible, however, for the purpose of proving identity. Where a similar offense is offered under K.S.A. 60-455 for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). The defendant contends that the prior California burglary was not sufficiently similar in its factual circumstances to the VFW burglary in Salina to raise the necessary inference. The state maintains that the similarities were sufficient. In this regard, we note that both of the burglaries involved the same peculiar method of entry into the building by means of a rope through a roof opening. Here both burglaries involved a business rather than a residence; both involved thefts of money and the attempted entry of a safe; and, in each instance, the burglar exited through a door which was left unlocked. Under all the circumstances, we have concluded that the factual circumstances were sufficiently similar to raise a reasonable inference that the same person committed both of the offenses. It was error for the trial court to admit evidence of the California burglary to prove plan. We find, however, that under the standards of K.S.A. 60-261, the admission of the other crimes evidence to show plan did not prejudice the substantial rights of the defendant since the evidence was properly admitted on the issue of identity. State v. Marquez, 222 Kan. 441.
The second point raised on the appeal is that the trial court erred in refusing to suppress the testimony of Victor Herrera because the identity of that witness was made known to the police as the result of defendant McBarron’s illegal arrest. In support of his position, the defendant relies upon the “fruit of the poisonous' tree doctrine.” The fruit of the poisonous tree doctrine is one facet of the exclusionary rule of evidence, which bars the admissibility in a criminal prosecution of evidence obtained in the course of unlawful searches and seizures. In that context, the fruit of the poisonous tree doctrine is held to extend the scope of the exclusionary rule to bar not only evidence directly seized but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search. When applicable, the fruit of the poisonous tree doctrine bars not only derivative physical evidence, but also derivative testimonial evidence, such as confessions and admissions obtained as a result of confronting the accused with information learned in an unlawful search, and the testimony of witnesses discovered as a result of an unlawful search. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920); Nardone v. United States, 308 U.S. 338, 84 L.Ed. 307, 60 S.Ct. 266 (1939). The doctrine of the fruit of the poisonous tree was considered in State v. Deffenbaugh, 216 Kan. 593, 533 P.2d 1328 (1975) and in State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977).
In Childers we held that the doctrine is inapplicable where the police learn of the evidence from an independent source or where the connection between the unlawful conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. 222 Kan. at 32, Syl. ¶ 7. Whether or not specific evidence is the inadmissible yield of an unlawful search or is admissible because knowledge of its availability was obtained from an independent source is a question of fact to be determined in each case where the issue is raised.
The evidence in this case is undisputed that, at approximately 4:30 a.m. on December 7, officer Brown observed Victor Herrera driving his automobile at a slow rate of speed in the vicinity of the VFW building. The officer stopped him, obtained his name, and told officer Lane to assist him in finding a motel room. The illegal arrest of defendant McBarron and his companion Morse by officer Smith occurred at 7:30 a.m. on December 7, approximately three hours after the name of Victor Herrera became known to the police. It is clear to us that, upon his being notified of the burglary of the VFW, officer Brown’s attention would have focused immediately upon Victor Herrera, the subject who had been seen driving in the early morning hours in the vicinity of the VFW Club. Officer Brown would immediately have contacted officer Lane, who at Brown’s suggestion had given Herrera the name of the Flamingo motel. Officer Brown would have proceeded to the motel and would have learned that Herrera had actually checked into the Flamingo motel many hours before he was stopped by officer Brown. In our judgment the trial court, correctly overruled the motion of the defendant to suppress the testimony of Victor Herrera. The evidence of Victor Herrera, as a prime suspect and witness in the VFW burglary, was obtained from an independent source, separate and apart from the illegal arrest and unlawful search of the defendant McBarron and his companion, Morse. Hence, we hold that the fruit of the poisonous tree doctrine did not bar Herrera’s testimony in this case.
The last point raised by the defendant on the appeal is that the state’s evidence was not sufficient to support a verdict of guilty in this case. Although the evidence presented by the state was circumstantial, it has long been recognized that circumstantial evidence may support a verdict of guilty of even the most severe offense. State v. Ritson, 215 Kan. 742, 529 P.2d 90 (1974). The test of the sufficiency of the evidence to sustain a verdict of guilty when questioned on appeal is not whether guilt has been established beyond a reasonable doubt but whether the evidence, viewed in the light most favorable to the state, forms a basis for a reasonable inference of guilt. State v. Rincones, 209 Kan. 176, 495 P.2d 1019 (1972); State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977). Here the evidence showed that defendant McBarron and Morse were dropped off by Herrera in the early morning hours on a dark street behind the VFW building in an area where there were no open businesses. Furthermore, Herrera was observed driving his automobile at a slow speed looking carefully around the area of the VFW building and then returning to the alley behind the club. These circumstances could reasonably lead one to the conclusion that Herrera was driving the getaway car and that he was there to pick up his two companions. There was, of course, ample evidence of a burglary and theft of the VFW building some time in the early morning hours on December 7. In addition to this, evidence was presented of an admission made by defendant to James Fulton that he, McBarron, was the one who committed the crime at the VFW. These facts, when considered in the light most favorable to the state, in our judgment provided a basis for a reasonable inference of guilt sufficient to sustain the verdict of guilty.
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The opinion of the court was delivered by
McFarland, J.:
This is an action brought under the Consumer Protection Act (K.S.A. 1975 Supp. 50-623, et seq.). The alleged defective product was a home sold to plaintiffs which was under construction. The trial court found this type of transaction was not within the purview of the act and entered summary judgment for the defendant. From this judgment plaintiffs appeal.
The facts as they relate to the issues before us are not seriously in dispute. On November 13,1974, plaintiffs (hereinafter referred to as buyers) entered into a contract with defendant (hereinafter referred to as seller) for the purchase of real estate on which a residence was being built by seller. The purchase price was $37,500.00. The contract provided that the buyers had the right to select inside and outside paint colors. The contract further provided that it would be null and void unless the contract terms were completed by January 15, 1975. The entire transaction was expressly contingent upon the buyers securing adequate financing. Prior to the time of the execution of the contract, the seller orally advised the buyers that they would have the right to select panelling and that the home would be built in “first-class condition.” On January 11, 1975, the parties entered into a second contract which extended the completion date to February 15, 1975, and enumerated six specific items that were to be corrected (these were primarily remedial in nature). The second contract acknowledged that $34,500.00 of the purchase price had been paid. The seller was further required to deliver a general warranty deed to the property to the buyers. The buyers were required to deliver to the escrow agent a general warranty deed in the seller’s favor. This latter deed was to be held by the escrow agent until performance under the contract was completed. If the $3,000.00 were paid, this latter deed was to be returned to the buyers. If the $3,000.00 were not paid, then the deed would be delivered to seller for recording.
On February 15, 1975, the buyers paid the $3,000.00 balance and occupied the premises. Apparently, at least partial occupancy started in early February. The buyers were not satisfied with the construction when they paid the final $3,000.00 and moved in, but did so on the advice of their attorney. Just prior to this payment, the seller refused to discuss the defects with the buyers. The buyers claim 36 defects existed in the house and that they expended monies and personal labor to correct some and that further expenditures would be required to correct-other defects. This action was brought under the Consumer Protection Act. The buyers sought $2,000.00 for each of the 36 defects. After the action was commenced, buyers sold the home for $40,000.00 and moved to the state of California. Subsequently, the trial court granted summary judgment to the seller, stating:
“The Court further finds from the pleadings, depositions and exhibits that an original contract of sale was entered into by the parties prior to the completion of the house in question; that Plaintiffs subsequently took possession of the house and entered into a supplementary contract wherein $3,000.00 of the purchase price, previously withheld by Plaintiff, was to be paid to Defendant upon completion of specified deficiencies that subsequently said $3,000.00 was paid by Plaintiff to Defendant.
“That the transaction in its entirety is not one contemplated by or intended to be within the purview of K.S.A. 1975 Supp. 50-626, et seq.
“The Court further finds that the Plaintiffs are not entitled to a declaratory judgment as prayed for in their Petition and that the Plaintiffs should be assessed the costs of this action.”
It should be noted that neither before the trial court nor this court have the buyers stated their action was brought on alternative theories, i.e., Consumer Protection Act or contract law. The buyers have chosen to base their entire cause of action on the Consumer Protection Act. The propriety of the trial court’s decision must be determined in the context of the issues before it.
The principal issue before this court is whether or not the transaction in question is within the purview of the Consumer Protection Act (K.S.A. 1975 Supp. 50-623, et seq.). The buyers assert that the statement that the home would be constructed in a “first-class condition,” followed by “shoddy” construction, as well as the installation of a panelling of a different color than that selected, constituted deceptive and unconscionable practices prohibited by the Act. The portions of the Act (1975 Supp.) which the buyers contend authorize this action are as follows:
“50-623. Purposes; rules of construction. This act shall be construed liberally to promote the following policies:
“(b) to protect consumers from suppliers who commit deceptive and unconscionable sales practices; . . .”
“50-624. Definitions. . . .
“(c) ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of goods, a service, or an intangible (except insurance contracts and securities regulated under federal or state law) to a consumer or a solicitation by a supplier with respect to any of these dispositions.
“(e) ‘Goods’ includes any property, tangible or intangible, real, personal or mixed, or any other object, ware, merchandise, commodity or thing of value wherever situated, within or without the state of Kansas.”
“50-626. Deceptive consumer sales practices, (a) No person shall engage in any false, misleading, deceptive or unconscionable trade practice in the sale, lease, rental or loan or in the offering for sale, lease, rental, or loan of any goods or services.
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act:
“(1) Representations that:
“(A) Goods or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have;
“(B) the supplier has a sponsorship, approval, status, affiliation or connection that he does not have;
“(C) goods are original or new, if they are deteriorated, altered, reconditioned, repossessed or second-hand or otherwise used to an extent that is materially different from the representation;
“(D) goods or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation; or
“(E) the consumer will receive a rebate, discount or other benefit as an inducement for entering into a consumer transaction in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if receipt of benefit is contingent on an event occurring after the consumer enters into the transaction;
“(2) the intentional use, in any oral or written representation, of exaggeration, innuendo or ambiguity as to a material fact;
“(3) the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled;
“(4) disparaging the goods, services or business of another by false or misleading representations of material facts;
“(5) offering goods or services without intent to sell them;
“(6) offering goods or services without intent to supply reasonable, ex-pectable public demand, unless the offer discloses the limitation;
“(7) making false or misleading representations of fact concerning the reason for, existence of or amounts of price reductions, or the price in comparison to prices of competitors or one’s own price at a past or future time;
“(8) falsely stating that a consumer transaction involves consumer rights, remedies or obligations;
“(9) falsely stating that services, replacements or repairs are needed;
“(10) falsely stating the reasons for offering or supplying goods or services at sale or discount prices.”
“50-627. Unconscionable consumer sales practices, (a) An unconscionable act or practice by a supplier in connection with a consumer transaction violates this act whether it occurs before, during or after the transaction.
“(b) The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider circumstances which the supplier knew or had reason to know, such as, but not limited to the following:
“(1) That he took advantage of the inability of the consumer reasonably to protect his interests because of his physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor;
“(2) that when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by like consumers;
“(3) that when the consumer transaction was entered into, the consumer was unable to receive a material benefit from the subject of the transaction;
“(4) that when the consumer transaction was entered into, there was no reasonable probability of payment of the obligation in full by the consumer;
“(5) that the transaction he induced the consumer to enter into was excessively one-sided in favor of the supplier; and
“(6) that he made a misleading statement of opinion on which the consumer was likely to rely to his detriment.”
“50-634. Private remedies, (a) Whether he seeks or is entitled to damages or otherwise has an adequate remedy at law, a consumer may bring an action to:
“(1) Obtain a declaratory judgment that an act or practice violates this act; or
“(2) enjoin or obtain a restraining order against a supplier who has violated, is violating or is likely to violate this act.
“(b) A consumer who suffers loss as a result of a violation of this act may recover, but not in a class action, actual damages or a civil penalty as provided in K.S.A. 1973 Supp. 50-636(o) as amended, whichever is greater.”
“50-636. Civil penalties, (a) The commission of any act or practice declared to be a violation of this act shall render the violator liable for the payment of a civil penalty, recoverable in an individual action, including an action brought by the attorney general or county attorney or district attorney, in the sum of not more than two thousand dollars ($2,000) for each violation.”
In his deposition the buyer, Loren L. Baldwin, testified that he was relying on the “first-class condition” statement as the basis for the alleged violation of the Consumer Protection Act.
In determining the propriety of the summary judgment, the transaction, in its entirety, must be viewed in the light most favorable to the buyers. Accordingly, although the defects are disputed, we must assume the defects existed as claimed and that the seller stated the house would be built in “first-class condition.” We also know, from the second contract, that the buyers knew of defects and included them for remedial work. The deposition of the buyer, Loren L. Baldwin, shows he knew the listed defects were not all corrected when he completed the contract and paid the balance due. In addition he knew of other defects and, also, that the seller would not even discuss them with him. The statement as to “first-class condition” is innocent “puffing,” to be expected by a consumer.
Under the totality of the circumstances of this case, we find that the trial court correctly found that the transaction was not within the purview of the Consumer Protection Act and properly entered summary judgment for the defendant seller. The balance of the issues raised need not be determined by virtue of this conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder,C.J.:
This is an appeal by Edward S. Weser, petitioner-appellant, from an order denying post-conviction relief by the sentencing court in a proceeding filed under K.S.A. 60-1507. The petition seeks to vacate his sentence on conviction of second-degree murder (K.S.A. 21-3402).
The facts surrounding this case are fully reported in State v. Burrow & Dohlmar, 221 Kan. 745, 561 P.2d 864 (1977), where convictions of the petitioner’s two codefendants were affirmed on appeal. At the time their direct appeal was taken the petitioner had escaped from the penitentiary and was a fugitive from justice.
Specifically the petitioner contends the trial court lacked jurisdiction to dismiss his direct appeal, and this constitutes an exceptional circumstance which excuses his failure to perfect his direct appeal.
On July 2, 1973, the petitioner was sentenced by the Sedgwick County district court to a term of imprisonment of 30 years to life for his conviction of second-degree murder. On August 1, 1973, he timely filed his appeal with that court. Thereafter, he was granted orders extending the time for filing his designation of record and statement of points on appeal until September 3, 1974.
On August 14, 1974, the petitioner escaped from custody, and the state’s motion to dismiss the appeal was sustained by the trial court on August 30, 1974.
The petitioner was subsequently captured and reincarcerated. He filed a motion to reinstate his direct appeal in the Sedgwick County district court which was denied on March 26, 1976. He then filed a motion to reinstate the appeal in this court on November 22, 1976, which was denied on December 2, 1976.
On August 9, 1976, the petitioner filed his motion pursuant to K.S.A. 60-1507. The state filed a motion to dismiss claiming the petitioner had failed to allege grounds showing exceptional circumstances for failing to perfect his direct appeal. The trial court sustained the motion and dismissed the petitioner’s 1507 motion on November 15, 1976. Appeal was then duly perfected to this court from the trial court’s order.
At the outset we note this is not an appeal which reaches the merits of the claim. Supreme Court Rules Nos. 6(n) and 6(p), 214 Kan. xxv, which control the disposition of this case, have since been amended.
Was the dismissal of the petitioner’s direct appeal on August 30, 1974, when the appeal had not yet been docketed in the Supreme Court, within the jurisdiction of the trial court?
Our court recently examined the circumstances under which it is proper for the trial court to dismiss an appeal to the Supreme Court in Johnson v. Johnson, 219 Kan. 190, 547 P.2d 360 (1976). After discussing the pertinent statutory provision K.S.A. 60-2103(a) and Supreme Court Rules Nos. 6(n) and 6(p), we stated:
“. . . [T]he Supreme Court has authorized district courts to dismiss appeals if the record on appeal has not been filed with the Supreme Court only by (1) stipulation of the parties, (2) a voluntary notice of dismissal filed by the appellant, or (3) a finding by the trial judge that the appeal has been abandoned. . . .” (Emphasis added.) (p. 193.)
Here, the trial court sustained the state’s motion to dismiss the appeal on August 30 based upon the affidavit of Wayne D. Woolverton, Deputy Secretary of Records, Kansas Department of Corrections. The affidavit stated the petitioner had escaped from the custody of the Kansas State Industrial Reformatory in Hutchinson, Kansas, on August 14, 1974, and was a fugitive from justice. Moreover, the record on appeal indicates the petitioner’s attorney was served with copies of the motion ten days before the hearing but made no attempt to assure the petitioner’s appearance at any time. The petitioner voluntarily remained at large until he was recaptured. Under these circumstances the trial court properly inferred the petitioner had abandoned his appeal.
The petitioner further contends the trial court’s dismissal of his direct appeal was an exceptional circumstance excusing his failure to perfect a direct appeal under Supreme Court Rule No. 121(c)(3), 214 Kan. xxxix (now Rule No. 183[c][3], 220 Kan. lxx.)
Exceptional circumstances which justify entertaining a second or successive motion include those unusual events or intervening changes in the law which prevent the movant from being aware and raising all of his alleged errors in the first post-conviction proceeding. To entertain a second or successive motion the errors must affect constitutional rights and be such that the ends of justice can only be served by reaching the merits of the subsequent application. (See Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 [1977].)
The trial court’s dismissal of an appeal taken by a defendant in a criminal action who intentionally abandons appellate review of his constitutional claim is not an exceptional circumstance excusing a direct appeal. In his motion for reinstatement, which was denied by our court in State v. Weser, 48,639, the petitioner recognized this fact. He stated:
“1. If the Court rules that he [Weser] does not have the right to have his appeal reinstated then it would appear that the ruling by Judge Raum regarding failure to show exceptional circumstances would be upheld by the Kansas Supreme Court following an appeal of that ruling in the 1507 proceeding. . . .”
Thus, under the facts and circumstances appearing in this record the trial court properly dismissed the petitioner’s direct appeal on August 30, 1974, and his 60-1507 motion on November 15, 1976.
The judgment of the lower court is affirmed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Hillard Amon Thornton, from convictions of seven charges of violation of the Uniformed Controlled Substances Act, K.S.A. 1977 Supp. 65-4127b(¿>)(3). All charges involved marijuana. Thornton was sentenced to concurrent terms of not less than two nor more than ten years on counts 1, 2, and 3, and to sentences of not less than two nor more than ten years on counts 4, 5, 6, and 7, these to be served consecutively to the sentence on count 1. Since the record is silent, we presume that the sentences on counts 4, 5, 6, and 7 are concurrent with each other. K.S.A. 21-4608.
Defendant contends that the trial court erred (1) in refusing to allow the defendant to present alibi evidence, (2) in his instructions to the jury, (3) in allowing the prosecution to present rebuttal evidence which did not refute, and which exceeded the scope of, defendant’s evidence, (4) in finding that the evidence was sufficient to sustain the verdict, and (5) in allowing the prosecution to charge and the jury to convict on both possession with intent to sell, and sale, of the same marijuana.
The charges against Thornton stem from four separate incidents. On December 14, 1976, undercover narcotics agents contacted Thornton, after they had let it be known that they were in the market to purchase two pounds of marijuana. Thornton directed the officers to an address in El Dorado, and announced that he needed $285 for the two pounds. The officers refused to deal in that fashion and stated that they wanted to deal directly. Thornton then directed them to another residence, where he went in, stayed briefly, and returned to the car, telling the agents that they would have to leave for awhile because they were not supposed to be there when the marijuana came. They left, returned about fifteen minutes later, entered the residence, and one of the agents then purchased two pounds of marijuana from Stephen W. Carlisle for $285. The remaining six counts involved three other incidents. On December 17, 1976, Officer Grow purchased one ounce of marijuana from the defendant for $12. On December 22, he purchased an additional ounce for the same amount; and a similar transaction occurred on December 26.
Thornton was charged in count 1 with aiding, abetting and procuring another, Stephen W. Carlisle, to commit a crime, selling marijuana. Counts 2, 4, and 6, respectively, charged Thornton with separate sales of marijuana on December 17, 22, and 26. Counts 3, 5, and 7 charged Thornton with possession with intent to sell marijuana on December 17, 22, and 26.
The trial was held during April, 1977. Trial counsel had been appointed shortly prior thereto, and no notice of alibi had been given pursuant to K.S.A. 22-3218. The court denied defendant’s request for leave to file notice of alibi out of time. Defendant’s first contention is that it was error for the court to deny the defendant the right to produce alibi evidence, in view of the fact that less than a month after trial, in Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977), we held the alibi statute, K.S.A. 22-3218, unconstitutional.
We have carefully examined the transcript in this case, and conclude that the alibi statute was not enforced by the court as against this defendant. The defendant was, of course, permitted to testify fully as to his alibi defense. The defendant was then permitted to call his alibi witnesses, and each testified on direct examination that the defendant was not at the locations designated in counts 2 through 7 inclusive, at the specified times. On cross-examination, each witness testified precisely where the defendant was during that period of time, and thus the alibi testimony was fully presented to the jury. The defendant does not now suggest the existence of other evidence, which he was precluded from utilizing. We conclude that the defendant was not prejudiced, and the ruling of the trial court based upon K.S.A. 22-3218, while erroneous, was not prejudicial.
We turn next to defendant’s contention that the court erred in using the word “procure” in the instructions relating to aiding and abetting in the sale of marijuana (count 1), and in using the. same word in the instruction defining the defense of “procuring agent.” The court instructed the jury in instruction No. 7 that, in order to establish the charge contained in count 1, the claim must be proved that the defendant did aid, abet or procure Stephen W. Carlisle to commit the crime of selling marijuana. This was immediately followed by a definitions instruction, in which the court stated:
“As used in these instructions the following words are defined as indicated:
“ ‘procure means to bring a buyer and seller together so that the seller has an opportunity to sell.” (Emphasis supplied.)
By instruction No. 17, the court informed the jury that:
“It is a defense to the charge against the defendant for the sale of marijuana if the defendant acted only as a procuring agent for the purchaser.
“A procuring agent for the purchaser is a person who, by agreement with the purchaser, buys or procures an article or a substance at the request of and for the purchaser. The agreement may be written, oral or implied by the behavior of the parties.
“It is not a defense where the defendant acted as a seller or as an agent for the seller.” (Emphasis supplied.)
The word “procure” is used in one of the statutes under which the defendant was charged, K.S.A. 21-3205(1). The word was used in the information upon which defendant was being tried. The court’s instruction on procuring agent follows the suggested form set out in PIK Crim. (1975 Supp.) 54.14-A.
Defendant argued to the trial court and argues now, that the court should have used the phrase, “agent for the purchaser” instead of “procuring agent”; and he contends that the instructions as given could be confusing to the jury.
We have reviewed the instructions and do not find them confusing. The defense of “procuring agent” was argued succinctly by counsel in their closing arguments. Under all of the circumstances we conclude that the jury could not have been misled.
Defendant next claims that the trial court erred in not limiting the scope of the state’s rebuttal evidence. The state called two defense witnesses in rebuttal, and “cross-examined” them as to their testimony. While this line of questioning should have been pursued when the witnesses were cross-examined, the testimony was admissible under K.S.A. 60-420. We have examined the transcript, and conclude that the trial court did not abuse its discretion in admitting this testimony in rebuttal.
Defendant contends that the evidence is not sufficient to form the basis for a reasonable inference of guilt. Viewing the evidence in the light most favorable to the prevailing party, we disagree. There is ample evidence to support the verdict.
Finally, defendant contends that the court erred in allowing the prosecution to charge and the jury to convict on both sale of marijuana and possession with intent to sell the same marijuana. We agree.
In State v. Lassley, 218 Kan. 758, 545 P.2d 383, we said:
“It is a generally accepted principle of law that the state may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution. (State v. James, 216 Kan. 235, 531 P.2d 70; State v. Gauger, 200 Kan. 515, 438 P.2d 455.) In State v. Lora, 213 Kan. 184, 515 P.2d 1086, we stressed that duplicity does not depend on whether the facts proved at trial are actually used to support the conviction of both offenses; rather, it turns on whether the necessary elements of proof of the one crime are included in the other.” (p. 761.)
Thornton was originally charged with three counts of sale of marijuana, based on his three separate sales of one ounce of marijuana to Officer Grow for $12 each. Prior to trial, the state filed an amended information by which it charged six offenses arising out of the three incidents with Officer Grow. Each incident was charged as a sale, and as possession with intent to sell.
Although the elements of the two offenses are different, and although we have held that possession of marijuana is not a lesser included offense in a prosecution for sale of marijuana (see State v. Woods, 214 Kan. 739, 522 P.2d 967 [1974]), we are convinced that the offense of possession of marijuana with intent to sell is merged with the crime of sale of marijuana where, as here, the sale was consummated. In Prince v. United States, 352 U.S. 322, 1 L.Ed.2d 370, 77 S.Ct. 403 (1957), the United States Supreme Court held that the offense of entering a bank with the intent to commit a felony or larceny therein was merged with the crime of bank robbery when the latter crime was consummated. The court said:
. . [T]he heart of the crime is the intent to steal. This mental element merges into the completed crime if the robbery is consummated. . . (p. 328.)
Here, the state charged that Thornton possessed marijuana with the intent to sell it. He sold it to Officer Grow. The intent to sell merged into the crime of sale when the sale was consummated.
The convictions and sentences on counts 3, 5, and 7 for possession of marijuana with intent to sell are reversed and the trial court is directed to vacate the same without a hearing thereon and without the defendant or his counsel being present. The convictions of and the sentence for aiding, abetting, and procuring the sale of marijuana, as charged in count 1 of the information, and the convictions and sentences for sale of marijuana, as charged in counts 2, 4, and 6 of the information, are affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the condemnor in an eminent domain proceeding from a jury award of $25,000.00.
Appellant, Central Kansas Electric Cooperative, Inc., found it necessary to construct a 69,000 volt transmission line approxi mately nineteen miles in length starting eleven miles north of Kinsley and running to a point southeast of Larned. The route of the proposed line ran along the north border of a quarter section of farm land owned by Stanley R. and Rebecca Z. Clowers and Warren A. and Phyllis L. Zook. Appellant was unable to negotiate a purchase of the necessary easement and resorted to eminent domain proceedings. The land in question (the Zook quarter) was a short quarter of less than 160 acres of which 110 acres were under cultivation, 40 acres were pasture, 3 to 5 acres were used in a swine raising operation and the remainder was occupied by the farmhouse and outbuildings. Along the north property line was a shelter belt and, in order to preserve it, the transmission line was located to the south, or inside of, the shelter belt. The pigpens were located just south of the shelter belt and the proposed electric transmission line was to be located over five of the pens.
Appellant, in attempting to negotiate the purchase of the easement, had offered $1,745.00 to the landowners. When this offer was refused, appellant commenced proceedings in the district court to obtain the easement by condemnation. Appellant and the landowners were dissatisfied with the award of the court-appointed appraisers and both filed notices of appeal. On the day that trial was to begin the landowners announced they were dismissing their appeal.
The jury returned a verdict of $25,000.00 for the landowners and the power company appeals. In addition to the jury award, the court allowed the landowners an additional $6,871.31 for attorneys’ fees and costs incurred during the trial and further ordered that the landowners attorneys’ fees and costs for the appeal to this court should be charged as costs and assessed to the condemnor.
By the time the case came to trial the electric transmission lines had been installed and the actual land occupied by the poles, guylines and other supports was only a small fraction of an acre. The electric transmission lines were installed at a height that does not physically interfere in any way with the use of the surface for normal farming operations or the existing swine producing operation.
Appellant proceeded upon the theory that the measure of damages was the difference in the fair market value of the Zook quarter before and after the taking of the necessary easement. The landowners contended throughout the proceedings that their swine producing operation was unique, that the taking of the easement constituted a complete taking of the affected property, and there was no measurable market value for their type of operation. Appellees presented evidence showing the shelter belt furnished a natural barrier from the elements which was necessary for the successful raising of young pigs. They contended the electric power lines would generate an “electric field” below the lines that might be harmful to the pigs and that the power lines would allow birds, while perching on the lines, to defecate into the pigpens thereby possibly exposing the pigs to an increased danger of disease. For these two reasons the landowners felt they might be required to move the swine operation and construct a shelter for the pigs at an estimated cost in the neighborhood of $38,000.00. The trial court instructed the jury on both contentions, that is, the before and after market value and the theory that due to the use made of the property, it was unique and had no measurable market value.
The points raised on appeal and the arguments propounded by the parties require a rather detailed resumé of the evidence.
Appellee Warren A. Zook grew up in Pawnee County, wanted to go into the swine production business and in 1972 purchased the quarter section in question for $39,500.00 in partnership with Mr. and Mrs. Clowers. One of the factors considered in purchasing the property was the existence of the shelter belt which would afford some protection to the baby pigs during inclement winter weather. Zook testified at length, over repeated objections, about his swine operation and his fear that birds perching on the electric transmission lines would defecate into his pigpens, which might be a source of disease. He acknowledged that the birds (mostly starlings) roosted in the shelter belt, had come into the pens to feed and water prior to the installation of the lines and on occasion there had been as many as 200 to 300 feeding on the ground. He was also fearful that the lines would generate some type of “electric field” that might be harmful to the pigs and for these two reasons he thought he might want to move his swine operation from under the lines, resulting in the loss of the protection afforded by the shelter belt. If he did so, he estimated the cost to construct a partial shelter for the pigs to be approximately $38,000.00. On cross-examination he testified the quarter section, if used as ordinary agricultural land, was worth $75,000.00 before the taking of the easement and after taking was worth $1,745.00 less.
A major portion of the testimony, over appellant’s repeated objections, was devoted to the possibility of an increased health hazard to Zook’s pigs due to birds perching on the electric transmission wires and defecating into the pens.
The leading witness called by the appellees, as to any possible additional hazard of disease carried by birds, was Dr. Harry D. Anthony, a member of the faculty of the College of Veterinary Medicine at Kansas State University. Dr. Samuel Kruckenburg, a colleague of Dr. Anthony’s on the faculty of the College of Veterinary Medicine, Department of Veterinary Pathology, at Kansas State University, was called as a witness by the appellant.
A synopsis of the testimony of Dr. Anthony and Dr. Kruckenburg was that they had each viewed the Zook swine operation, the shelter belt and the 69,000 volt transmission line constructed by appellant on the Zook quarter; that the Zook swine operation was fairly typical of the majority of swine operations in the State of Kansas; and that appellees’ hogs were fed in the open by placing grain on the ground and the waterers were open.
These witnesses testified there are three things that attract birds to a particular location — food, shelter and water — and that the Zook swine operation had all three attractions.
Both witnesses testified that an electric line is not an attraction for birds. Each distinguished what is meant by roosting and what is meant by perching. A roosting place is one such as the shelter belt where birds go to stay at night or for long periods of time while a perching place is one where birds just light or perch for a short time. Both testified a bird might perch but would not roost on an electric line.
Each witness was of the opinion that birds could transmit disease by landing in a pig lot which had been contaminated and then flying to and landing in another pig lot. Neither had personally confirmed transmission by bird feces of any diseases to feed lots in Kansas, but testified various people had suggested this was possible and the possibility was generally accepted by the veterinary profession.
Dr. Kruckenburg testified birds will pick at hog defecation, grain or anything else, and enclosed feeders and waterers would be an additional precaution if one feared transmission of disease by birds. To obtain maximum control in disease prevention, it would be necessary to have an all-enclosed structure.
Dr. Anthony testified a structure over the pens on which a bird would perch could be an additional factor with respect to the potential hazard of disease. He had no knowledge and no opinion whether the electrical field surrounding the wires on the appellant’s transmission lines would permit birds to perch and, even if they should perch on the lines, it would constitute no more than an added factor concerning disease. He had no opinion whether the added hazard would be one percent, one-tenth percent, or what it would be and then stated any opinion he might have would be only a guess. Dr. Kruckenburg testified if the birds did perch on the electric lines, any additional danger of transmission of disease by reason thereof would be almost infinitesimal as the birds would already be in the pigpens eating, drinking and defecating while they were on the ground. It was also brought out that the shelter belt itself extended over some of the pens and provided a place for the birds to roost as well as perch.
Dr. Arthur Darrell Apley, a graduate of Kansas State School of Veterinary Medicine, had been in practice for twelve years in Lamed. He was familiar with the Zook swine operation, had done work for Zook, was of the opinion birds do transmit disease, and if birds were to perch on the electric lines, there would be some droppings, which would be a factor to consider. He also testified the lines would not attract additional birds to the area in that the three attractions, food, water and shelter, were already present at the Zook operation.
The landowners, in support of their contention that the electric transmission lines would create an electric field below the lines that might endanger the health of the pigs, presented testimony by Gary Lee Johnson, an associate professor at Kansas State University. Dr. Johnson held degrees in mechanical engineering and specialized in power transmission lines. Dr. Johnson testified that the electric transmission lines would create an electric field below the lines and, in his opinion, would be a danger to the pigs. Dr. Johnson acknowledged he had no experience as to the effect of electric fields on animals and his opinion was based solely upon four studies he had reviewed, which dealt with the effects of electrical fields on mice and men. On cross-examination it was established that Dr. Johnson had no training in veterinary medicine, biology or zoology. It was also established that in all four studies, relied upon by Dr. Johnson, the results were either inconclusive or showed no damage to the humans and mice exposed to the electric fields even though the fields measured in the studies were many times more powerful than any possible field that could be generated by the transmission lines in question. The opinion given by Dr. Johnson was purely his personal opinion and was not supported by the four authoritative studies, which he testified formed the basis for his opinion. The testimony, at best, was speculative, conjectural and remote and should have been stricken upon appellant’s motion. (See Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 P. 768 [1930]; Telegraph Co. v. Bridge Co., 89 Kan. 418, 131 P. 143 [1913].)
Appellant called Douglas Owen Procter in answer to the testimony of Dr. Johnson. Procter held an electrical engineering degree from the University of Illinois and was a designer of electric transmission lines. He testified as to the degree of the electric field that would be generated by the lines over the Zook quarter, that he was familiar with the studies referred to by Dr. Johnson, and he was of the opinion the electric field would have no effect whatsoever on the pigs.
Appellant presented two witnesses as to the before and after value of the Zook quarter. Edward Frizzell testified he was a member of the American Institute of Real Estate Appraisers, the National Association of Real Estate Boards, had approximately twenty-five years’ experience in appraisal work, had made thousands of appraisals and had appraised from two to three hundred quarter sections of land in Pawnee County. He had appraised the Zook quarter, viewed the electric transmission poles, the lines and the farm operation, considered the few acres used for the swine operation, checked comparable sales and values and was of the opinion the Zook quarter had a fair market value of $77,500.00 prior to the taking of the easement and a value of $75,000.00 after the taking. He was of the opinion that the use of a small portion of the property for the production of pigs was no different than any other farm operation such as the raising of cattle. His opinion was based upon the market value of the property including improvements.
Russell Dipman testified he was a retired farmer, raised in Pawnee County, had been head of the Agricultural Adjustment Administration of Pawnee County, had been a County Commissioner of Pawnee County for sixteen years, had previously appraised fifty to sixty parcels of land in Pawnee County, was familiar with the Zook quarter, had appraised it, that the land had a market value of approximately $500.00 per acre, and the value of the entire quarter was diminished about $1,000.00 because of the power line.
Appellant’s principal point on appeal concerns the proper measure of damages. It is appellant’s position that it was error for the trial court to admit any testimony or evidence other than that relative to the difference in value of the entire property immediately before the taking and the value of the portion remaining after the taking. Appellant contends the proper measure of damages is controlled by K.S.A. 26-513. Subsection (c) of the statute provides:
“(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.”
Subsection (d) sets forth certain factors to be considered in arriving at a proper measure of compensation and damages under subsection (c).
The landowners contend their property was being utilized for a unique and special purpose (swine production), and, as such, had no market value and therefore a different measure of damages must be utilized. Appellees rely on Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P.2d 539 (1958), and City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162 (1968). Eisenring is the Kansas case most frequently cited and relied upon when it is contended that, due to a special use, property has no market value. In Eisenring the appellee was lessee of a 26.36 acre sand and gravel lease near Wichita. The term of the lease had only fourteen months remaining when the Kansas Turnpike Authority took a right-of-way through the middle of the leased property. Eisenring presented testimony as to the production from the leased premises, reserves, existing market for sand and gravel, and the before and after value of the lease. It was the position of the Turnpike Authority that since sand leases are not traded in commerce, there could be no damages. In Eisenring, we held:
“In the absence of market value, in the sense that the special type of property is not commonly bought and sold, resort must be had to the testimony of more specialized experts. The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally. If a witness, by reason of his skill, learning or technical training, understands the adaptability of the lands in question for a particular purpose and the demand for land for such purpose, he may state the market value of the property.” (Eisenring v. Kansas Turnpike Authority, supra, Syl. ¶ 2.)
It should be noted that in Eisenring all of the expert witnesses were eminently qualified in the realm of sand and gravel leases and each testified as to the before and after value of the leasehold estate. In the case at bar none of the expert witnesses called by the landowners testified as to values of the Zook quarter, either as an ordinary farming operation or as a swine producing facility. Their testimony was limited to the possibility of hazard to the pigs from defecation by birds perching on the electric transmission lines and the electric field generated by the lines. The only evidence as to value presented by the landowners was the testimony of Zook that the market value of the property as farmland had been diminished by $1,745.00.
Appellee’s also rely on City of Wichita v. Unified School District No. 259, supra. There a school building in Wichita was taken by condemnation for interstate highway purposes and the dispute was over the correct method of ascertaining just compensation to the school district. The district contended it was entitled to the cost of replacement while the city took the position that the proper measure of compensation was either the market value of the property or the replacement costs less depreciation and obsolescence. In referring to Eisenring, Justice Fontron, speaking for a unanimous court, stated:
“Although the property involved in the Eisenring ease was not a public school house, but a leasehold interest in a private sandpit, the undergirding principles of that decision would seem equally applicable where public property belonging to one unit of government is coveted and seized by another governmental body to be put to a different and, no doubt, superior public use. It appears to be well recognized in jurisdictions where the question has arisen, that school houses, churches, court houses and the like are special purpose properties not ordinarily bandied about in the market place, and hence a test other than market value must be employed in ascertaining their worth. Among the text writers also there is general agreement on this point.
“In 4 Nichols on Eminent Domain (3rd Ed.), § 12.32, we find this discussion:
‘It occasionally happens that a parcel of real estate taken by eminent domain is of such a nature, or is held or has been improved in such a manner, that, while it serves a useful purpose to its owner, if he desired to dispose of it he would be unable to sell it at anything like its real value. A church, or a college building, or a club-house located in a town in which there was but one religious society, or college, or club, might be worth all it cost to its owners, but it would be absolutely unmarketable. . .’ (pp. 217-218.)
‘Where a building is a speciality, and, in a sense, unique, being constructed for a special use, the valuation cannot be predicated on the same basis as a building constructed for general or usual dwelling or commercial use. In the case of a speciality there is a limited market and the customary testimony of market price is not available. It has been held under such circumstances that reproduction cost or replacement cost may be considered. . . .’ (pp. 227-228.)” City of Wichita v. Unified School District No. 259, 201 Kan. at 113-114.
The court found the rule to be that where property already devoted to a public use by one agency of government is condemned by another agency for some unrelated public purpose just compensation consists of the cost of providing equivalent substitutes or necessary replacements for the property taken. The same measure of compensation has been applied to the taking of private property where evidence of fair market value was lacking due to the unique use of the property. (See United States v. 531.13 Acres of Land, Etc., 244 F. Supp. 895 [W.D. S.C. 1965]; Albany Country Club v. State, 241 N.Y.S.2d 604, 19 A.D.2d 199 [1963].)
We have no quarrel with the rules laid down in Eisenring and City of Wichita v. U.S.D. No. 259. However, we are of the opinion they do not apply in the instant case. The properties taken in the cases cited were truly unique or special purpose properties for which there was no ready market. The same is not true of the Zook quarter. The use made of a small portion of the Zook quarter was nothing more or less than adapting the acreage to a form of agricultural usage common in the area. The use of the property for swine production is no more unique than would be the production of cattle, poultry, sheep or some other operation which might involve the use of special buildings or location. The use of farm property for such common agricultural purposes is not to say the property has no general market value which may be determined by competent appraisers.
In City of Wichita v. May’s Company Inc., 212 Kan. 153, 510 P.2d 184 (1973), in considering K.S.A. 26-513, we stated at page 156:
“K.S.A. 1972 Supp. 26-513(d) lists fifteen factors which may be given consideration when shown to exist, but points out the fifteen factors are not to be considered as separate items of damages, but are only to be considered as they affect the total compensation to be determined as directed in subsection (c).
“Subsection (c) specifically sets out the measure of damages in a condemnation case when a partial taking occurs. It is plainly stated the measure is the difference between the value of the entire property or interest immediately before the taking and the value of the remaining property immediately after the taking. Prior to the effective date of this statute, July 1, 1969, the courts of this state generally followed the same measure of damages as set forth in the statute. (Humphries v. State Highway Commission, 201 Kan. 544, 442 P.2d 475.) Since its codification, the courts have no alternative except to follow its directives. No exceptions are provided in the statute. In every partial taking there are only two issues — the value of the whole before the taking and the value of the remaining property after the taking. Evidence should be confined to these two issues.
“In order for the verdict of a court or jury to stand, the amount must be supported by the testimony. The ‘before’ value must be equal to and not more than the highest expression of opinion evidence, and the ‘after’ value must not be less than the lowest expression of opinion of the value of the remaining property after the taking. (Kansas State Highway Commission v. Roepke, 200 Kan. 660, 438 P.2d 122.) If the court or jury, in determining a condemnation award, has no competent admissible testimony on each of these values, an award or verdict cannot stand.”
It is inconceivable that a quarter section of good Kansas farmland would not have a market value solely because of the type of agricultural pursuits followed thereon. The proper measure of compensation and damages is controlled by K.S.A. 26-513(c) and (d) and testimony should have been limited to the before and after value of the Zook quarter as mandated by the statute. That is not to say that the use of the property cannot be considered in determining the before and after value. (K.S.A. 26-513(d) 1 and 13.)
Giving the testimony in the case at bar the most liberal construction favorable to the landowners, the maximum difference in the before and after value was $2,500.00, as established by the witness Frizzell. As the verdict of the jury was not within the range of the testimony, it cannot stand. (City of Wichita v. May’s Company Inc., supra.)
Although the foregoing disposes of the appeal, as the case must be returned for a new trial, we deem it advisable to consider briefly other points raised by appellant.
The trial court instructed the jury on the theories of both parties, as follows:
“INSTRUCTION NO. 4
“The evidence in this case has established that only part of the owners’ land was taken. The amount actually taken was less than one acre, leaving a remainder of more than one hundred fifty-nine acres.
“The power company contends that there does exist a measurable market for the land which was taken. If you are persuaded that this is true, then the measure of compensation under such circumstances is the difference between the market value of the entire property or interest immediately before the taking and the market value of that portion of the property interest remaining immediately after the taking. The date of taking was October 1, 1975. Thus, you should arrive at the total compensation due the property owners as follows:
First, you should determine the market value of the entire property and interest immediately before the taking.
Second, you should determine the market value of the remaining property and interest immediately after the taking.
Third, you should determine the difference between the two amounts by subtracting the second from the first, which difference will be the amount of your award.
“In determining the amount of compensation which should be awarded to the property owners, you should consider all of the factors actually bearing upon value, which value evidence was shown to exist. These factors include (a) the most advantageous use to which the property is reasonably adaptable; (b) the productivity, convenience or use to be made of the property taken or use of the property remaining and (c) the fact that the property could be or had been adopted to a use which was profitably carried on. You should consider such factors, not as separate items, but only as they affect the entire market value. These factors must be real, not speculative, conjectural or remote.
“The property owners contend that the property herein involved is not property of a kind that is customarily bought and sold and that it, therefore, has no measurable market value. If you are persuaded that this is true, then you must use a different measure of compensation in lieu of market value and to determine the amount of your award, you may consider the value of the property to the property owners for their special use or purpose, or for any purpose to which the property is reasonably adaptable. These special uses or purposes must be real, not speculative, conjectural, or remote.”
The last paragraph of the instruction is taken from PIK Civil 11.06 and, while a correct statement of the law, should be utilized only when the property is unique or of such a special nature that it has no measurable market value. In view of what has been said previously, and as there was a demonstrable market value for the property, the last paragraph of the quoted instruction should not have been given. (See Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 508 P.2d 954 [1973], Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315 [1959].)
The remainder of the instruction was taken principally from PIK Civil 11.04 and the use of 11.04 would have been proper under the evidence in this case.
Next, appellants contend it was error to allow testimony from experts as to the possible effects of birds defecating into the pens while perching on the wires and the electric field generated by the wires on the health of the pigs. While the admission of expert testimony is ordinarily within the sound discretion of the trial court, a witness must have skill or experience in the matter to which the subject relates. (Choo-E-Flakes, Inc. v. Good, 224 Kan. 417, 580 P.2d 888 [1978].) Neither of the engineers had any expertise in determining the possible effect of the electric field upon pigs and such testimony should not have been allowed, over proper objection, or should have been stricken and the jury instructed to disregard it. The same is true as to the testimony of the numerous veterinarians who testified as to the possible effect of birds perching on the power lines and defecating into the pigpens. While the witnesses were undoubtedly qualified in the field of animal disease, the testimony as to any harmful result was too remote and speculative to be competent evidence in this case.
Finally, appellant questions the allowance of attorney fees and expenses to the landowners. Both parties in this case appealed from the court-appointed appraisers’ award. The landowners, in what would appear to be an attempt to place them in a position to request attorneys fees under K.S.A. 26-509, announced five minutes before going to trial that they were dropping their appeal. The statute limits the allowance of attorney fees to those cases where the condemnor has appealed and in which the jury renders a verdict in an amount greater than the appraisers’ award. In City of Wellington v. Miller, 200 Kan. 651, 438 P.2d 53 (1968), we held that an appeal in a condemnation case could not be dismissed over the objection of any party having an interest in the tract. Under the circumstances of this case and the attempted dismissal by the landowners, it was error to allow attorney fees to the landowners when they had originally been appealing parties.
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The opinion of the court was delivered by
Miller, J.:
This is the second appearance in this court of this action, brought by Bell and other property owners against the City of Topeka to enjoin the City from enforcing certain ordinances levying and assessing part of the cost of improving Burlingame Road against the real estate within a benefit district. We sustained the positions taken by the landowners, reversed the judgment below, and remanded the case for further proceedings, in Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976). The underlying facts are set forth in that opinion.
Following remand, the trial court entered rulings from which the City now appeals. Concisely stated, the City contends that the trial court misconstrued our opinion in Bell, and erred in defining “intersections”; and that the court erred in assessing certain accrued interest against the City. The pertinent portions of Judge Barbara’s findings and orders read:
“That the boundaries of the intersections at 37th Street and 29th Street were resolved at the trial by the ‘Stipulation’ submitted to the Court by the parties on October 2, 1974. That the City was bound by that Stipulation and that that Stipulation and the exhibit which was attached to it showed that the intended intersections were the area where the two streets came together as well as extensions in four directions at the intersection of 29th Street and three directions at the intersection of 37th Street. That pursuant to the decision of the Supreme Court of the State of Kansas in Bell v. The City of Topeka, 220 Kan. 405 (1976), all of the costs of the intersections at West 29th Street and Burlingame Road and West 37th Street and Burlingame Road should be subtracted from the amount to be assessed against the property within the benefit district as it is restructured and should be paid by the City at Large. That the costs subtracted should mean all costs of such intersections, including construction costs, engineering, medians, left hand turn lanes, all purpose traffic signals, supervision and right-of-way acquisition. That the definition of intersection for the purpose of subtracting costs at the intersection of 29th Street and Burlingame Road is as it extends in all four directions and begins at the point where the pavement widens to accommodate the medians and left hand turn lanes. That the definition of intersection for the purpose of subtracting costs at the intersection of 37th and Burlingame Road is as it extends in three directions (exclusive of the west segment) and begins at the point where the pavement widens to accommodate the medians and left hand turn lanes.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that all costs of the intersection at 29th and Burlingame Road extending outward in four directions and beginning at the point in each direction where the pavement widens to accommodate the left hand turn lanes and medians be paid by the City at Large and not assessed to the property owners within the newly constituted benefit district. That all costs of the intersection at 37th and Burlingame Road extending outward in three directions, exclusive of west, and beginning at the point in each direction where the pavement widens to accommodate the left hand turn lanes and medians be paid by the City at Large and not assessed to the property owners within the newly constituted benefit district. That ‘costs’ shall include but not be limited to construction, engineering, supervision, right-of-way, traffic signals, medians, and left hand turn lanes.
“. . . [T]he Supreme Court of the State of Kansas in the case of Bell vs. City of Topeka, appearing at 220 Kan 405 (1976) . . . found that the assessment against the property owners within the proposed benefit district was unjust, unreasonable and arbitrary and that the manner in which the district had been created was unlawful. That the delay herein and resulting increase in the interest on the temporary notes was occasioned by the Plaintiffs’ appeal, but their position was vindicated. The City had made an unlawful assessment. Equity required that the Plaintiffs be free from a penalty of additional interest because of an exercise of the right to successfully attack an illegal act.
“That the City may not lawfully include the interest accrued on the temporary notes from the date of the order of the temporary injunction issued by this Court on December 31, 1974, until the temporary notes are paid by the issuance of bonds against the property owners within the newly structured benefit district.
IT IS THEREFORE BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED that in accordance with the above and foregoing findings, the property owners and property within the eventual benefit district for this improvement shall not be obligated to pay any of the costs of the interest on the temporary notes from the date of issuance of the injunction on December 31, 1974, until such notes shall have been paid off by issued bonds, and that such interest accruing between December 31, 1974, and the dates the bonds are sold shall be paid by the City at large.”
We agree with the trial court on both issues, and we affirm.
Stipulation No. 6 was a part of the original record before this court. It consists of a written stipulation, part of which is a plat designated “Exhibit A.” Concerning this plat, the parties stipulated “that the costs of the pavement marked in yellow was extracted from the total cost of [the improvement project] . . .; that the red line shows the proposed and new finalized benefit district; and the white area represents the remaining portions of the two intersections of Burlingame Road and 29th Street and 37th Street remaining in the benefit district.” (Emphasis supplied.)
The areas marked in yellow and in white, together, include not only the portions of intersecting streets common to both, but include all portions of 29th Street, 37th Street, and Burlingame Road, which are widened to accommodate median strips and left-turn lanes. Three such extra-wide areas, complete with median strips and left-turn lanes, are found at 37th and Burlingame, and four at 29th and Burlingame.
The assessment of the cost of these elaborate intersections was an issue in the original appeal. Justice Kaul, speaking for a unanimous court, said:
“Plaintiffs next claim the city violated a binding motion passed by it deleting from the benefit district a portion of the costs of the major traffic thoroughfare. Plaintiffs’ contention on this point is directed at the inclusion of a portion of the costs of the 29th and 37th Streets intersections in the levy against the district. In the city’s master plan for major traffic thoroughfares, adopted in 1958, 29th Street was designated a major traffic thoroughfare throughout its course across the city. The portion of 37th Street extending from Burlingame Road through Topeka Boulevard, the major north-south trafficway in the city, was, likewise, designated in the master plan. It is undisputed that both 29th and 37th Streets were justifiably designated major traffic thoroughfares. The intersections in question are described as sophisticated and highly developed, including extensive median strips and left-hand turn lanes, and all purpose traffic signals.
“. . . Where intersections, such as those in question, are designed, primarily to control the pattern and flow of through traffic into and across the intersections of major thoroughfares, the benefit, if any, to adjacent property is obviously negligible in comparison to the city at large.
“Under the particular facts and circumstances surrounding the city’s actions concerning the intersections in question, viewed together with the extreme disproportion of the burden imposed to the benefits received, we hold that the assessment of any costs of the 29th and 37th Streets intersections against the benefit district property is arbitrary and unreasonable and that such assessment must be enjoined.” 220 Kan. at 418-420.
When the parties to this case, the trial court, and this court in Bell, supra, spoke of “intersections,” the area intended to be described included not only the portions common to the intersecting streets, but the widened areas of the streets which include median strips and left-turn lanes. The cost of those areas is not to be assessed against the benefit district.
We turn next to the question of interest. When temporary notes are issued to finance a street improvement project, the interest on the temporary notes accruing from the time of issuance until the project is completed is a part of the overall cost of the project, and as such may be assessed against the real property within the improvement district. Dodson v. City of Ulysses, 219 Kan. 418, 549 P.2d 430 (1976). Ordinarily, bonds are issued promptly; the temporary notes are paid out of the bond proceeds; and the principal amount of the bonds issued includes the amount of accrued temporary note interest, as well as note principal.
The landowners here did not complain about temporary note interest accrued throughout construction; that interest was treated as part of the cost of construction by the district court’s order. The landowners, however, successfully contended that they should not be charged with the interest accruing after actual construction was completed and an injunction was issued, for the reason that the ensuing delay of over three years was due to the fault of the City. We agree.
The extended delay, with the corresponding accrual of temporary note interest since December 31, 1974, is attributable to the acts of the City in (1) improperly and unlawfully creating the benefit district; (2) unjustly, arbitrarily, and unreasonably assessing the cost of construction of the elaborate intersections against the district (all as determined in Bell, supra); and (3) failing to comprehend and abide by the Bell decision. It would be manifestly unjust to assess the interest accrued since December 31, 1974, against the benefit district because the entire delay was caused by the wrongful, illegal, and unreasonable acts of the City.
The judgment of the trial court is sound, well reasoned, and correct. It is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from an action to recover for the wrongful death of plaintiffs-appellees’ decedent, Royal Edward Kleibrink, who was killed when his car collided with a train owned and operated by the Missouri-Kansas-Texas Railroad Company, Inc., defendant-appellant. The case was tried under our new comparative negligence statute. The jury found the railroad 100 percent negligent and awarded damages in the amount of $101,807.
The appellant asserts the trial court erred in limiting opinion testimony by its expert witness; in denying its requested instructions; and in refusing to reduce the damages to $50,000 plus funeral expenses as the limit for wrongful death. It also complains of misconduct by opposing counsel in his closing argument and challenges the sufficiency of the evidence.
The accident occurred on July 24, 1974, at approximately 9:20 p.m. at a public crossing just west of Stark, Kansas. The railroad track is straight and level at the crossing, and State Highway 201 dips slightly before its intersection with the tracks. The railroad maintained crossbucks on each side of the track and posted a warning sign 450 feet west of the crossing.
The evening of the accident was clear, and witnesses stated it was just dusk when the crash was heard. The decedent was going to his job as plant supervisor at the Stark Grain Elevator a very short distance beyond the railroad crossing. His car was traveling in an easterly direction on highway 201 as it approached the intersection with the railroad crossing. The appellant’s train, consisting of four diesel engines, 139 tank cars and a caboose, was approaching from the south to the decedent’s right at a speed of 38 miles per hour as shown by the train’s speed tape and the engineer’s testimony. The decedent’s car struck the appellant’s lead engine and was pushed 1,078 feet north up the track. There were no skidmarks on the pavement. The car was completely demolished, and the decedent was killed instantly.
The main controversy between the parties with respect to comparative negligence deals with allegations the appellant (1) failed to blow its whistle; (2) failed to keep the crossing free from obstruction to vision; and (3) failed to have the crossing properly marked — it had no crossing gate or flashing signals. The only eyewitnesses to the collision were the appellant’s brakeman and engineer. W. L. McKain, the head brakeman, was seated in the lead engine in a position in which he was able to see in all directions. He testified he first observed the decedent’s car as it was coming over a hill on the highway approximately seven-eighths of a mile from the crossing. He estimated it was traveling at least 50 miles per hour. He stated he then signaled the engineer to blow the whistle and continued to watch the car as it came east until it slowed to approximately 25 miles per hour before the crossing.
Richard Mullinax, the engineer, testified he began blowing the whistle before the Stark crossing post when he noticed the decedent’s car traveling at an excessive rate of speed. He whistled continuously using the short blast method in order to get the driver’s attention. When he realized the car was not going to stop he placed the train in emergency but continued to blow the whistle. He further stated the bell and the headlight of the train were on.
Numerous witnesses for the appellees, on the other hand, testified they heard no train whistle until immediately after the crash. The appellees also introduced testimony that weeds, brush, and trees obstructed the vision of a motorist approaching the crossing from the west as to trains approaching from the south. They claimed the crossing was more than ordinarily dangerous due to the appellant’s negligence in maintaining it as required by law.
The appellant moved for a directed verdict at the end of the appellees’ case arid at the close of all the evidence. These motions were denied, the case was submitted to the jury, and the appellant has duly perfected this appeal.
At the outset the appellees ask this court to dismiss the appeal, claiming the trial court had no jurisdiction to extend the time for filing the designation of the record, or in the alternative, abused its discretion by allowing the appellant to file such designation more than six months out of time. This argument lacks merit.
Supreme Court Rule No. 6(p), 214 Kan. xxv, in effect when this case was tried, states the provisions for delays and extensions of time when the appellant is docketing an appeal. Our court has never favored denying an appeal on technical procedural grounds. (See Crouch v. Marrs, 199 Kan. 387, 388, 430 P.2d 204 [1967].) Admittedly, the appellant was not in conformity with the rules, but inherent in the trial court’s ruling was a finding of excusable neglect. (Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 307, 524 P.2d 1194 [1974]; Almquist v. Almquist, 214 Kan. 788, 794, 522 P.2d 383 [1974]; Van Brunt, Executrix v. Jackson, 212 Kan. 621, 625, 512 P.2d 517 [1973]; see also Cribbs v. Pacific Intermountain Express, 208 Kan. 813, 494 P.2d 1142 [1972].) Absent a showing of abuse of discretion, the trial coúrPs order will not be disturbed. (Van Brunt, Executrix v. Jackson, supra, at 625.) Here no abuse of the exercise of the trial court’s power of discretion has been shown.
The appellant first contends it was improper to deny the testimony of Clifford Haslett; a Kansas Highway Patrolman, that the decedent’s inattentive driving contributed to his death. It relies on the cases of Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973); and Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974) to support this argument. This issue is controlled by our recent decision of Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), where we overruled language in Ziegler and Massoni and held:
“In an automobile accident negligence case, an expert witness, whether an investigating police officer or other expert, may not state his opinion as to which of the parties was at fault in causing the accident or his opinion concerning what acts of the parties contributed to the accident. . . .” (Syl. 3.)
Thus, no error exists in the exclusion of the testimony.
The appellant next contends the jury verdict is not supported by the evidence. Specifically it contends the jury ignored and did not consider the evidence given by its eyewitnesses that the decedent was guilty of negligence in driving in front of the train, which was a proximate cause of his death.
We have often stated a verdict or finding of a jury cannot be disturbed by the court on appeal if there is substantial competent evidence in the record to support it. (Dold v. Sherow, 220 Kan. 350, 356, 552 P.2d 945 [1976]; Carnegie v. Gage Furniture, Inc., 217 Kan. 564, 538 P.2d 659 [1975]; and Hallett v. Stone, 216 Kan. 568, 534 P.2d 232 [1975].) Similarly when a verdict is attacked on the ground that it is contrary to the evidence, it is not the function of the Supreme Court to weigh the evidence or to pass upon the credibility of the witnesses. The court is concerned only with the evidence and all reasonable inferences to be drawn therefrom which support the verdict, and it is of no consequence that there may have been evidence which, if believed, would have supported a different verdict. (Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 620, 567 P.2d 1359 [1977] and cases cited therein; Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 80, 524 P.2d 767 [1974]; Montgomery v. Morgenson, 213 Kan. 167, 515 P.2d 746 [1973]; Jennings v. Missouri Pacific Railroad Co., 211 Kan. 389, 506 P.2d 1125 [1973]; and Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P.2d 975 [1970].)
Here Mr. and Mrs. Carl Hazen, who were gathering cantaloupes in a field one mile from the crossing, testified they did not hear the train whistle on this unscheduled run until after they heard the crash. Marion and Bell Elder, the appellant’s own witnesses, testified they heard a whistle only a split second before they heard the collision. The engineer and brakeman, on the other hand, stated the whistle had been blown at the signal posts and continued intermittently until the train entered the intersection. Conflicting evidence concerning the railroad markings and physical obstructions was also introduced. In reaching its verdict the jury obviously accepted some testimony as true and rejected contrary testimony as false. This is its proper function. We hold substantial competent evidence exists to support the verdict.
The appellant’s next two points on appeal concern the instructions in the case. First it contends the trial court erred in refusing to give requested instructions on right-of-way at a railroad crossing. The trial court found and the appellees argued that right-of-way was not specifically made an issue in the pretrial order, and the instructions were precluded.
The pretrial order states in pertinent part:
“The issues to be tried are:
“1. Whether defendant was negligent, and of course this includes proximate cause;
“2. Whether plaintiffs’ decedent was contributorily negligent, and of course this includes proximate cause; and
“3. The amount of damages.
“The burden of proof is upon plaintiffs as to No’s. 1 and 3 and upon defendant as to No. 2.
“The specific grounds of negligence charged against defendant are:
“1. Failure to have railroad crossing properly marked;
“2. Failure to keep obstructions from right-of-way; and
“3. Failure of approaching train to blow whistle.
“The acts of contributory negligence charged against plaintiffs’ decedent are:
“1. Failure to maintain a proper lookout;
“2. Excessive speed in the circumstances;
“3. Failure to stop, slow, or turn aside to avoid a collision;
“4. Failure to keep his vehicle under proper control; and
“5. Failure to observe signs and warning signals.”
As a general rule a pretrial order entered by the trial court, pursuant to K.S.A. 60-216, controls the subsequent course of action unless such order is modified at the trial to prevent manifest injustice. This proviso reposes in the trial court large discretionary powers. (Frevele v. McAloon, 222 Kan. 295, Syl. 1, 564 P.2d 508 [1977]; Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 561 P.2d 825 [1977]; and Dold v. Sherow, supra at 353.)
Furthermore, in Annot., 22 A.L.R.2d 599, 603 (1952), it is stated:
“Where the pretrial order frames the issues to be tried, and the order is not modified, the court may, and should, refuse any request for an instruction which is inconsistent with the order or which is not within the scope of the issues stated in the order. . . .”
See also 75 Am. Jur. 2d Trial § 646 (1974) and 88 C.J.S. Trial § 381(a) (1955).
Here in view of the limitation of the negligence issues in the pretrial order the refusal to give the instruction on right-of-way was correct. The appellant’s contention the trial court erred in overruling its objection to Instruction 23, which followed the language in PIK, Civil, § 8.80 verbatim, because the jury was not sufficiently instructed about right-of-way is equally nonconvincing.
The appellant also complains of refusal to give requested Instruction 19 based upon duty to stop. It provides:
“You are instructed that where obstructions to a traveler’s view prevent him from otherwise ascertaining the fact that he may cross a railroad track with safety, then it is the duty to stop to make sure of his safety before crossing. . . .”
This instruction represents a correct statement of the law based upon Alley v. Chicago, Rock Island & Pacific Rld. Co., 213 Kan. 457, 516 P.2d 967 (1973). The trial court refused to give it, however, claiming various other instructions covered it.
Refusal to give a requested instruction does not result in reversible error when the substance thereof is contained in other instructions. (Schmidt v. Farmers Elevator Mutual Ins. Co., 208 Kan. 308, Syl. 4, 491 P.2d 947 [1971]; see also Drake v. Moore, 184 Kan. 309, 336 P.2d 807 [1959].) Moreover, the fact that the requested instruction is technically a correct statement of the law does not make the trial court’s refusal to give such instruction reversible error. (Emond v. City of Wichita, 185 Kan. 720, 723, 347 P.2d 256 [1959].) Here the substance of the requested instruction was covered by Instructions 21 and 22 which followed PIK, Civil §§8.12 and 8.02A.
The appellant argues error was committed when the trial court refused to give an instruction on remedial measures based upon K.S.A. 60-451. This argument overlooks the factK.S.A. 60-451 is a rule of evidence. Here the appellant initially submitted the evidence relating to remedial conduct — cutting weeds and clearing obstructions two days after the accident. Thereafter it failed to object when further evidence was introduced. By its own actions it has waived a right to assert error.
The appellant next contends the trial court erred in refusing to grant a mistrial because of misconduct by opposing counsel in his closing argument.
Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial. (Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 [1973].) Of course, the trial court is in a better position than an appellate court to determine whether the verdict resulted from asserted misconduct of counsel or from passion and prejudice, and ordinarily its conclusion in the matter will not be disturbed. (Pike v. Roe, 213 Kan. 389, 392, 516 P.2d 972 [1973]; Nelson v. Hardesty, 205 Kan. 112, 468 P.2d 173 [1970]; and Miller v. Braun, 196 Kan. 313, 411 P.2d 621 [1966].)
In the instant case the appellees’ counsel misstated the number of diesel units on the train which were required to have headlights. The appellant’s counsel objected and immediately moved for a mistrial. This motion was overruled. The remark about the lights was isolated. The appellees did not claim negligence in failure to use proper lights nor was there any argument at the trial the train was improperly lighted. Therefore, no prejudice to the appellant’s rights has been shown.
Finally, the appellant asserts the trial court erred in refusing to reduce the jury’s verdict to $50,000 plus funeral expenses, which was the limit for wrongful death under K.S.A. 1974 Supp. 60- 1903 at the date of the decedent’s death on July 24, 1974. The statute was subsequently amended to its present form on July 1, 1975.
The pretrial order filed August 22, 1975, recited the verdict could not exceed $50,000. It provided:
“Defendant contends that under K.S.A. 1974 Supp. 60-1903 plaintiffs cannot claim more than $50,000 (plus funeral expenses) for wrongful death. It is the Court’s interpretation of the statute that a plaintiff cannot be awarded more than the limit. This case will be tried under our new comparative negligence rules (K.S.A. 1974 Supp. 60-258a) and applying the two statutes together it is my view that if from the jury’s findings a plaintiff is entitled to recover under the statutory formula of comparative negligence the Court will enter judgment for the appropriate amount, and that amount cannot exceed $50,000.”
The jury in this case subsequently found the appellant 100 percent negligent and returned a verdict for $101,807, which represented the entire amount prayed for in the petition. The trial court then entered judgment for the entire amount of the award based upon K.S.A. 1974 Supp. 60-1903 stating in its memorandum:
“. . . In short, my interpretation is that the limitation is simply upon what the trier of the facts can award.”
In so doing the trial court disregarded the pretrial order and misconstrued the law.
While our court has never specifically decided the issue, the great weight of authority holds that an increase, decrease or repeal of the statutory maximum recoverable in wrongful death actions is not retroactive. (See 22 Am. Jur. 2d Death § 7 [1965]; Annot., 98 A.L.R.2d 1105, 1110 [1964]; and 25A C.J.S. Death § 112 [1966].) The general rule as stated in 1. S. SPEISER, RECOVERY FOR WRONGFUL DEATH § 7:2 (2d ed. 1975) is:
“A statute raising the maximum limit on damages operates prospectively, rather than retroactively, and therefore does not apply in an action based on an accident which occurred prior to its enactment.” (p. 693.)
In Thomas v. Cumberland Operating Co., 569 P.2d 974 (Okla. 1977), the Oklahoma court was presented with the same problem we have here. The court states:
“Wrongful death actions were unknown at common law, and any right of action surviving the decedent exists by virtue of statutory enactment. The damages are limited to the pecuniary benefits lost, through the death, by those specified in the statute. Statutes and amendments imposing, removing or changing a monetary limitation on recovery for personal injuries or death are generally held to be prospective only. All rights of action for the death of a person must depend upon the status of the law at the time of the injury. A statute passed subsequent to the injury increasing the amount recoverable in a wrongful death action creates a new element of damages as distinguished from a new remedy to enforce an existing right. Statutory increases in damage limitations are changes in substantive rights and not mere remedial changes. Therefore, these increases are not applicable retroactively to injuries sustained prior to the effective date of the statute permitting increased recovery.” (p. 976.)
(See also State ex rel. St. Louis-San Francisco Railway Company v. Buder, 515 S.W.2d 409 [Mo. 1974].)
We concur in this reasoning and hold that deaths occurring during the one year period subsequent to the effective date of the Comparative Negligence Act of July 1, 1974, but prior to the effective date of the wrongful death amendment of July 1, 1975, are governed by comparative negligence and a $50,000 limitation.
We are not faced with the question of how the wrongful death statute’s limitation interacts procedurally with the comparative negligence statute in this case. (See, e.g., Benton v. Union Pac. R. Co., 430 F. Supp. 1380 [D. Kan. 1977]; Olson v. Hartwig, 288 Minn. 375, 180 N.W.2d 870 [1970]; Mueller v. Silver Fleet Trucking Co., 254 Wis. 458, 37 N.W.2d 66 [1949]; and Vasos, Comparative Negligence Update — A Discussion of Selected Issues, 44 J.B.A.K. 13, 42-43 [Spring 1975].) It should be noted under our wrongful death statute, the death limitation is not a measure of compensation. Instead, it is simply a limitation upon recovery. Thus, the maximum amount of the prayer must be established, as it was in the case before us, without regard to the statutory limitation. We have concluded the wrongful death limitation of $50,000 damages applies to the instant case. Our comparative negligence statute allows recovery if the decedent’s negligence was less than the negligence of the party against whom recovery is sought. Here the appellees were entitled to recover for the loss of their decedent, but the trial court erred in failing to reduce the damages recoverable to $50,000 plus funeral expenses.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from summary judgment entered in favor of defendant Edgar Alvin Harris in a personal injury case.
The accident giving rise to this lawsuit took place on October 23, 1974, in Wyandotte County. Plaintiffs were Missouri residents. They had rented an automobile in Missouri and were driving it in Kansas City, Kansas, when it was struck by defendant. Defendant, a Florida resident, was also driving a car rented in Missouri.
As a result of the accident plaintiffs received injuries and were taken by ambulance to a hospital. Neither plaintiff incurred medical expenses or suffered an injury which would permit him to sue for pain, suffering, mental anguish, inconvenience or other nonpecuniary loss under the provisions of K.S.A. 1974 Supp. 40-3117 (now K.S.A. 1977 Supp. 40-3117).
On December 17, 1975, plaintiffs filed this action seeking recovery for pain, suffering, mental anguish, lost wages and medical expenses. On July 26, 1976, defendant filed a motion for summary judgment, alleging plaintiffs were subject to the Kansas Automobile Injury Reparations Act (K.S.A. 1974 Supp. 40-3101, et seq. [now K.S.A. 1977 Supp. 40-3101, et seq.]), and their injuries were not of the kind and nature which entitled them to bring suit against defendant. The trial court agreed and entered judgment for defendant.
K.S.A. 1974 Supp. 40-3117, effective February 22, 1974, states:
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. . .
Plaintiffs contend the trial court erred in entering judgment for defendant because plaintiffs are nonresidents and not subject to the provisions of the Act. K.S.A. 1974 Supp. 40-3117 precludes bringing any tort action against the operator of a motor vehicle for pain, suffering, mental anguish, inconvenience and other nonpecuniary loss except under specified conditions. K.S.A. 1974 Supp. 40-3106 further provides that a nonresident owner of a motor vehicle may not operate such vehicle on the highways or public property of the state unless a motor vehicle liability policy conforming with K.S.A. 1974 Supp. 40-3107 is in effect for such vehicle or the nonresident has qualified as a self-insurer. It is obvious from a reading of the two sections of the Act that a nonresident owner of a motor vehicle operated on the highways and public property of this state is subject to the provisions of K.S.A. 1974 Supp. 40-3101, et seq.
Plaintiffs are thus precluded from bringing an action for pain, suffering, mental anguish, inconvenience and other nonpecuniary losses and to that extent the trial court’s order of dismissal was proper. A complete dismissal was not proper, however. Plaintiffs also sought to recover for medical expenses and lost wages. K.S.A. 1974 Supp. 40-3101, et seq., does not preclude an action for actual expenses and pecuniary loss resulting from a collision, even when the threshold provisions of 40-3117 have not been met. If liability is established plaintiffs are entitled to recover for those losses, subject to any reimbursement or indemnity rights arising under 40-3113.
The judgment of the trial court is affirmed in part and reversed in part, and remanded with instructions to proceed in a manner consistent with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal from a declaratory judgment determining the rights of the parties in a farm lease.
In 1950 defendants-appellees Schmidt (hereinafter referred to as “tenants”) leased farm property from John Monroe. On May 20, 1976, the plaintiffs-appellants Grey (hereinafter referred to as “landlords”) purchased the real estate from Monroe. Wheat, a fall seeded grain crop, was growing on a portion of the land. On June 30, 1976, the tenants received a notice to terminate the tenancy from the landlords. The notice was as follows:
“NOTICE OF TERMINATION OF FARM TENANCY FROM YEAR TO YEAR
“TO FREDDIE SCHMIDT and PEGGY SCHMIDT, ROUTE 1, GREENSBURG, KANSAS:
“You and each of you should take notice that your farm tenancy, from year to year of real estate situated in the County of_State of Kansas, to-wit:
The Southeast Quarter (SE/4) of Section Eighteen (18), Township Twenty-nine (29) South, Range Eighteen (18), West of the Sixth Principal Meridian, Kiowa County, Kansas; is terminated as of March 1,1977. However, as to that part of the above-described premises which has been planted to a fall season grain crop on cropland which has been prepared in conformance with normal practices in the area, the termination date as to that portion of the described premises shall take place on or before August 1, 1976.
“Under no circumstances and under no conditions are you to work and seed any portion of the described premises which crops therefrom would mature after March 1, 1977.
“You and each of you are further notified that unless you quit, leave, vacate and surrender your possession of said premises on or before March 1, 1977 and in accordance with this notice, action will be commenced in the proper court to eject you.
“Dated at Pratt, Kansas this 28th day of June, 1976.”
The last day of harvest was July 6, 1976.
The landlords concede that the termination notice as to August 1,1976, was improper, but contend the entire tenancy terminated March 1, 1977. The tenants contend their tenancy runs to the day after the harvest in 1977 or August 1,1977, whichever is first. The trial court held in favor of the tenants on August 20,1976, and the landlords appeal. The 1977 crop had not been planted at the time of the trial court’s determination and the 1976 crop had been harvested. Accordingly, no fall seeded grain crop was in the ground at the time of trial.
K.S.A. 58-2505, in the form in effect at the time, provides:
“All tenancies from year to year may be terminated by at least thirty days’ notice in writing, given to the tenant prior to the expiration of the year.”
K.S.A. 58-2506, in the form in effect at the time, provides:
“In cases of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of March: Provided, however, That as to that part of the farm which is planted to a fall seeded grain crop on cropland which has been prepared in conformance With normal practices in the area, the notice must fix the termination date of the tenancy to take place on the day following the last day of harvesting such crop or crops, or August 1, whichever comes first: And provided further, That if such tenant becomes a tenant from year to year by occupying the premises after the expiration of the term fixed in a written lease, 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 said tenant first occupied the premises.”
K.S.A. 58-2505 and 58-2506 were subsequently amended by 1978 Kan. Sess. Laws, Chap. 215, §§ 1 & 2, to provide as follows:
“Section 1. K.S.A. 58-2505 is hereby amended to read as follows: 58-2505. All tenancies from year to year, other than farm tenancies from year to year, may be terminated by at least thirty days’ notice in writing, given to the tenant prior to the expiration of the year.
“Section 2. K.S.A. 58-2506 is hereby amended to read as follows: 58-2506. (a) Except as may be otherwise provided by this section or by a written lease signed by the parties thereto, in cases of tenants occupying and cultivating farms the notice to terminate such a farm tenancy must be given in writing at least thirty (30) days prior to the first day of March and must fix the termination of the tenancy to take place on the first day of March.
“(b) When a notice of termination is given pursuant to subsection (a) after a fall seeded grain crop has been planted, as to that part of the farm which is planted to a fall seeded grain crop on cropland which has been prepared in conformance with normal practices in the area, the notice shall be construed as fixing the termination of tenancy of such portion to take place on the day following the last day of harvesting such crop or crops, or August 1, whichever comes first.
“(c) Subject to the provisions of subsection (b), 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 said tenant first occupied the premises. Such notice shall be written and given to the tenant at least thirty (30) days prior to such termination date.”
The tenants contend that the land was planted in a fall seeded grain crop at the time the notice was received; that “is planted” means customarily planted; that the notice was received less than thirty days before the last day of harvest; and that the tenancy could not, therefore, terminate prior to the day after the 1977 harvest. The landlords contend that the intent of the statute, as to fall seeded grain crops, was that the March 1 termination date for such crops was not feasible and that a tenant should not lose such growing crops. Therefore, a later termination was fixed. The landlords contend that “is planted” means crops then in the ground, not crops to be planted at a future date. The subsequent amendment to K.S.A. 58-2506 is viewed as clarification of the statute rather than a change.
On June 30, 1976, when the notice was received, the tenants had a wheat crop planted. The last day of harvest of this crop was July 6,1976. Some of the other land was in summer fallow, which was to have been planted in wheat in the fall. So, the answer to the question, is a fall seeded grain crop planted, would have been affirmative if asked on June 30,1976, but negative if asked on July 15,1976 (after the harvest). Tenants did not have greater rights as to tenancy on June 30,1976, than they did two weeks later. Words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute (Rogers v. Shanahan, 221 Kan. 221, 224, 565 P.2d 1384 [1976]; Roda v. Williams, 195 Kan. 507, 511, 407 P.2d 471 [1965]). In K.S.A. 58-2506 (in effect in 1976) “is planted” means presently planted. We view the 1978 amendment of the language to “after a fall seeded grain crop has been planted” as a clarification rather than a change in its effect.
After the 1976 wheat crop was harvested, there was no land presently planted in a fall seeded grain crop. Therefore, the effective termination date for the entire tract was March 1, 1977. The tenants, after receiving the termination notice, proceeded to prepare and plant another wheat crop. They did so at their own risk. Indeed, the notice expressly prohibited such endeavor.
We hold that the trial court erred in determining that the notice given tenants was ineffective to terminate the tenancy on March 1, 1977, as the tenancy was terminated as of March 1, 1977.
The judgment of the trial court is reversed and judgment is entered for the landlords terminating the tenancy as of March 1, 1977. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action to set aside an order of the State Board of Education which transferred 56 sections of land from Unified School District No. 269 to Unified School District No. 270. Both school districts are located in Rooks County, Kansas. Initially the trial court granted the injunction and an appeal was taken thereon. On that appeal the primary issue was the constitutionality of the transfer statute, K.S.A. 72-7108. The constitutionality was upheld in State, ex rel., v. State Board of Education, 215 Kan. 551, 527 P.2d 952 (1974), and the case was remanded for further proceedings. On remand the trial court upheld the transfer order and found the State Board of Education did not act arbitrarily, capriciously, unreasonably, or fraudulently. The plaintiffs-appellants have duly perfected this appeal from that determination. The appellants raise a number of points on appeal, but the central issue is whether or not the transfer order was arbitrary, capricious, unreasonable, or fraudulent.
K.S.A. 72-7108 provides the procedure for transfer of territory from one unified school district to another. In upholding the constitutionality of K.S.A. 72-7108 in the original appeal, we said:
“When territory is transferred the boundaries of the two districts are changed and the integrity of the districts are thus impaired. See Babcock v. City of Kansas City, 197 Kan. 610, Syl. ¶ 1, 419 P.2d 882, Where it is held the annexation of territory by a city is, in effect, a reorganization of the city. Uninhibited or successive transfers from one school district might well create a situation within such district which would seriously impair the ability of that district to carry on its educational mission. In such case disorganization might be the final result although not within the spirit of the school unification acts. Surely the authority delegated is not that broad.
“Since K.S.A. 72-7108 had its origin in the school unification acts which contain definite guidelines for the organization of unified school districts we believe the school unification acts must be considered as an expression by the legislature of its intention, and provide guidelines for transfer of territory of unified school districts after their initial organization. When statutes are originally enacted at the same session of the legislature as parts of a general act having the common purpose of serving the educational interests of the state they are in pari materia and should be read together in ascertaining the legislative purposes for their adoption. In order to ascertain the legislative intent courts should not consider one isolated part of an act but are required to consider and construe all parts thereof in pari materia. (Gnadt v. Durr, 208 Kan. 783, Syl. ¶ 3, 494 P.2d 1219; Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 494 P.2d 1184; Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P.2d 732.)
“The present school unification acts contain the following legislative declaration found in K.S.A. 72-6734:
‘The legislature hereby declares that this act is passed for the general improvement of the public schools in the state of Kansas; the equalization of the benefits and burdens of education throughout the various communities in the state; to expedite the organization of public school districts of the state so as to establish a thorough and uniform system of free public schools throughout the state whereby all areas of the state are included in school districts which maintain grades one (1) through twelve (12), and kindergarten where desired; and to have a wiser use of public funds expended for the support of the public school system of the state. To these ends this act shall be liberally construed.’
“K.S.A. 72-6744 sets forth further guidelines for the organization of unified -districts in keeping with the legislative intent expressed in 72-6734. Under 72-6744 each proposed unified district should have an expected enrollment of 400 students in its schools in grades one through twelve. An exception to the 400 student requirement is recognized for a district having no less than 200 square miles of territory and an assessed valuation of $2,000,000.00. Consideration should be given to the grade and curriculum requirements of K.S.A. 72-8212 (formerly 72-6755) and no unified district should be organized in which it is manifestly impracticable to maintain, offer and teach the grades and units of instruction so required. All of the territory within the boundary of any city district should be included in one and only one unified district. There are other statutory guidelines in the school unification acts and the foregoing are not intended to be exhaustive or to cover every situation.
“The transfer statute K.S.A. 72-7108(i>) makes reference to the school unification acts where the limitation of contiguity is placed on territory transferred. The statute thereby recognizes its own origin as a part of the overall legislative enactment, the school unification acts.” (pp. 557-558.)
We specifically found that the guidelines as to pupil enrollment, district size, and valuation for establishment of a district were equally applicable to transfers under K.S.A. 72-7108. At trial the following facts were undisputed:
The following is a comparison of U.S.D. No. 269 and U.S.D. No. 270 before transfer:
U.S.D. 269 U.S.D. 270
Area (square miles) 248.5 276
Valuation (in millions) 13.5 17.7
Enrollment 360 822
The following is a comparison of U.S.D. No. 269 and U.S.D. No. 270 after transfer:
U.S.D. 269 U.S.D. 270
Area (square miles) 192.5 332
Valuation (in millions) 11 20
Enrollment 300 882
Minimum guidelines of K.S.A. 72-6744 require:
Area (square miles) 200
and
Valuation (in millions) 2
or
Enrollment 400
Viewed fractionally or proportionately, this transfer would detach approximately V4 of the'territory of U.S.D. No. 269 and deprive U.S.D. No. 269 of approximately 1/5 of its total tax base and approximately 1/6 of its total student body.
U.S.D. No. 269 has, prior to transfer, less than the requisite 400 enrollment but is over the area and valuation requirement which allowed the district to be in compliance with the guidelines of K.S.A. 72-6744. Excluding gains from the transfer, U.S.D. No. 270 is substantially over all the minimum requirements of the guidelines. After the transfer U.S.D. No. 269 would be below the guidelines on both pupils and area, while U.S.D. No. 270 would be even farther over the minimum guidelines.
Uncontroverted evidence was introduced that U.S.D. No. 269 could not survive if the transfer were approved and that the transfer would seriously impair the ability of U.S.D. No. 269 to carry on its educational mission. It was admitted by the Commissioner of Education that this transfer would not result in an equalization of the benefits and burdens of education between U.S.D. No. 269 and U.S.D. No. 270. The State Board gave no consideration to the purposes and limitations contained in the School Unification Acts in making the transfer in this case, and was not aware it had a duty to do so. In the order of transfer the State Board of Education recited that the order “is harmonious with the purposes and provisions of the school unification acts, and that such transfer is not violative of the limitations prescribed by such law.” We do not agree.
In harmony with the earlier opinion in this case, we hold that the transfer of territory in contravention of the guidelines set forth in K.S.A. 72-6744 and with no showing of any justification for such contravention is, as a matter of law, arbitrary, capricious, and unreasonable. The trial court erred in not so finding under the evidence before it. By virtue of this determination, other points on appeal need not be considered.
The judgment of the district court is reversed. The State Board of Education is hereby enjoined from transferring the 56 sections of land from Unified School District No. 269 to Unified School District No. 270 and the case is remanded to the trial court to determine if any monies are due either district. It is unclear whether any monies were actually paid pursuant to the order of transfer and hence the remand to resolve, in accordance with this opinion, any pending financial matters. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by defendant-appellant, Milda R. Sandstrom, from an order granting an injunction restraining and enjoining her from the sale, disposal, mortgage, encumbrance, or other disposition, without prior court approval, of any property held in joint tenancy, or any property of the deceased, or any property jointly accumulated. The action was brought by plaintiff-appellee, Fred Mitchelson, special administrator of the estate of Thad M. Sandstrom. Under the terms of the will appellant was to receive all property and was named executor with Mitchelson named alternate executor. At the time of the order, appellant had been charged with feloniously killing Thad Sandstrom, her husband.
On appeal, appellant attacks the constitutionality of K.S.A. 59-513 which provides:
“No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of the estate or property in which the decedent had an interest: Provided, That when any person shall kill or cause the killing of his or her spouse, and shall then take his or her own life, the estates and property of both persons shall be disposed of as if their deaths were simultaneous pursuant to the provisions of K.S.A. 58-701 to 58-705, inclusive.”
The appellee contends that the matter is not properly before this court for procedural reasons. The procedural issues will be dealt with first. It is appropriate to establish the time frame of events. All dates are in 1977 and are summarized as follows:
May 3 — Thad M. Sandstrom died testate.
May 4 — Mitchelson filed for probate of will and appointment of executor.
—Mitchelson filed for appointment of a special administrator.
—Mitchelson was appointed special administrator for the special purpose of conserving the estate until an administrator or executor was appointed and qualified.
—Probate court froze assets until appointment of an administrator or executor.
May 10 — Application for restraining order and injunction.
—Temporary restraining order against defendant and all other persons from disposing of property.
May 17 — Hearing on application of Mitchelson for injunction.
—Order granting injunction (order from which this appeal was taken).
June 2 — Will admitted to probate and Mitchelson appointed executor.
June 16 — Appeal filed.
August 1 — Inventory and appraisal filed in probate court.
The transcript of the hearing on May 17, 1977, has been carefully reviewed. At the beginning of the hearing the trial court inquired as to the position of Milda Sandstrom with regard to the application for an injunction. Mr. Hecht represented the appellant at the hearing. Mr. McClure and Mr. Entz represented the special administrator. The following responses appear to the judge’s inquiry:
MR. HECHT: “. . . if I understand the application correctly, I don’t believe the widow would have any legal objection to at least some of the relief which was sought by the Administrator.
“I think as a matter of public record, both formally and informally, that the decedent’s widow has been accused of feloniously killing the decedent, and of course we Eire all aware of the existence of KSA 59-13, [sic] which places some restrictions upon the passage of property to a person who may be convicted of a felonious killing of the prior holder of that property.
“That statute is not applicable at the present time and may never be applicable, but because the charges have been made, I can understand the Administrator’s fiduciary position, and I can understand also that the Court has an obligation to the estate.
“We have no objection to the Court entering an order, and as a matter of fact, it is my understanding that there is already an order which has been issued by the Probate Division, freezing all of the assets of the estate.
“Is that correct, sir?
MR. ENTZ: “That’s partially correct, your Honor, and that is partially the reason we are here today, because it is not that extensive, as I understand it. That it only goes to certain jointly held property.
MR. HECHT: “Well, of course, that’s all it can go to. Property which is owned individually by the decedent or held in joint tenancy to the right of survivorship between the decedent and his widow. It couldn’t go as to property owned individually by the widow, nor could it go to property held, if any there is, to tenancy in common.
“I believe that the Court would be within its authority and discretion if it entered an order prohibiting any person, be that the Special Administrator or the decedent’s widow or any other person, from encumbering or selling or mortgaging, or otherwise disposing of any of the real or personal property which was owned individually by the decedent or which was held in joint tenancy by the decedent and the decedent’s widow, until further order of the Court.
“However, the restraining order which was issued ex parte on the 17th [stc] of May, construed as preventing the decedent’s widow from occupying the homestead of the parties or having the use and control of the joint tenancy property of the parties until further order of the Court, we believe that this Court would have no authority to enter any order which would in any way impair or impede the right or the opportunity of the decedent’s widow from occupying the homestead or having the exclusive use and control of any of the property which they held in joint tenancy until the further order of this Court, subject of course to the prohibition against the selling or encumbering or wasting or otherwise impairing title or disposing of it.
THE COURT: “Does the Special Administrator seek any order broader than that described by Mr. Hecht?
MR. ENTZ: “I think, your Honor, in part. We are in total agreement as to any restraining order that would enjoin her from disposing or otherwise encumbering.
“There is one matter that we would like to seek additional relief or determination by the Court, and that is the nature or the extent of the interest in the estate and the various assets, and, of course, we are seeking that additional — and in the interim we would like to have an injunction prohibiting disposition of any asset in which the State [sic] might have any interest whatsoever, so I think—
THE COURT: “I didn’t understand that to be inconsistent with what Mr. Hecht has said.
MR. ENTZ: “I don’t believe it is, your Honor. At some point we would either want to develop a mechanism or come before the Court again as to the interest in the estate in the assets, and possibly that is beyond the scope of this proceeding today—
THE COURT: “Wouldn’t that be premature until there was some need to sell, dispose or encumber a particular item?
MR. HECHT: “Your Honor, please, and as I understand it, and frankly I don’t know how this proceeding got before this Court, but be that as it may there isn’t anything before your Honor which we can litigate the question of what, if any, property belongs to the estate outright, or in joint tenancy. An inventory hasn’t been prepared or filed. Once that is filed, then any party can litigate the question of whether the property listed in the inventory is the property listed in the estate or not, and until that question is reached, we are premature. I think at this point in time the only thing the application for the restraining order action asks for — and this the Court can properly do — is simply to impair the disposition of any of the property which was obviously the joint tenancy property and/or the property of the estate singularly. If there is property which the widow or other persons claim to be their individual property outside the joint tenancy relationship, or the property of the decedent, well that’s a matter to be litigated at the time of the filing of an inventory.
MR. ENTZ: “That is precisely the question we have. It’s one thing to enjoin the disposition of assets which the State [sic] has obviously interest in, but we — there may be some question as to her right to dispose of i.e. her allegation that it’s simply her property and she is not bound by the injunction. That has to be litigated. Either by 59-513 or the problem of issuing an injunction enjoining disposition of estate property requires the determination of the interest of the estate and property which she may claim is not restricted by the restraining order and the estate may in turn claim that they do have an interest in it—
THE COURT: “Well, if we enjoin the sale, disposition or other encumbrance of any asset which the estate has an interest, either solely or jointly or with anyone else for that matter, then haven’t we done all that we can? And should she sell an asset, erroneously thinking that it was hers alone, then that risk is hers and whether the order is violated or not, and if there is any question about it, won’t we have to litigate that at the time?
MR. ENTZ: “I agree with that. The question is a mechanism as to whether— the question of that interest may be affected in part by 59-513, or 25-201 [sic], which would seem to indicate that even as to her own property, the estate of the husband, the deceased husband, may have an interest, and so the question which I am posing to the Court is I don’t think there is any disagreement as to where we are headed, and as to what should be enjoined. The problem is the mechanism by which the issue is raised and then we are litigating the interest of the estate.
“If the surviving widow would like to post a bond to—
MR. HECHT: “We would like to—
MR. ENTZ: “ — ensure that the assets that she disposes of is something that it’s entirely her right to dispose of, and if she is wrong, we are reimbursed, that is one alternative.
MR. HECHT: “There is a very simple mechanism for doing that, and that’s for the estate to file an inventory and once that is filed, a mechanism exists to litigate whether or not all of the assets listed in the inventory are the assets of the estate.”
No evidence was presented by either party on the application. It is abundantly clear that the order was entered by mutual consent as a temporary measure to maintain the status quo until the rights of the parties to any particular property could be determined. The transcript, further, clearly shows both parties could apply to the court, during the duration of the injunction, for such additional orders as might be necessary. The trial court’s ruling was as follows:
“I am looking at [59-] 513, and it says: ‘No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of the estate or property in which the decedent had an interest.’
“The Ackers case is not in point to the issue here because in that particular case the property in question was acquired by inheritance, which fits strictly under the statute [23-] 201.
“The Court did comment, however, that ‘. . . the rule as announced does not apply to property jointly accumulated during the marriage. However, it is conceded in this case that the property in dispute was acquired by inheritance, rendering a consideration of the question as to what constitutes jointly acquired property unnecessary.’ That’s quoting from page 326 of 192 Kansas.
“As near as I can tell then, we haven’t reached this question yet, but the Court has plainly announced that there is an apparent difference between property jointly accumulated, insofar as the same may be liable for the debts of the decedent.
“Consequently, it will be the order of the Court that an injunction will issue based upon the verified application of the Special Administrator and the stipulation of the widow, relative to the basic and underlying facts covering the sale, disposal, mortgage, encumberment, or otherwise, any disposition whatsoever, without prior court approval, of any assets held; (a) By the decedent in his own right at the time of his death and now by the estate; (b) Any income or any acquisitions that might have occurred since the death of the decedent; (c) Any property held in joint tenancy the rights of survivorship by the decedent and any other person; and, (d) Any property of the decedent and/or the widow of the decedent which was jointly accumulated during the marriage.
“Expressly excluded from the injunction will be any property separately owned by the widow, or for that matter, any other person, which was acquired by inheritance, gift, or otherwise from any source other than the income efforts or private property of the decedent during the marriage of the parties.
“If and in the event this order shall apply to all parties including the Special Administrator, no sale, disposition, encumbrance or otherwise of these properties shall be permitted without prior Court approval.
“Now, should there be a need on the part of any parties of the estate to sell or mortgage or otherwise dispose any property falling out of the categories outlined by the Court, a determination may be made by the Court for the determination of the ownership thereof, and we will have a hearing on that matter in the event there is any disagreement.
“That will be the order of the Court and I will ask the Special Administrator to prepare a journal order.”
After the court made its ruling, the balance of the proceeding was as follows:
“MR. HECHT: Excuse me, your Honor, that requires notice to parties without prior approval of the Court. You said without prior approval—
“THE COURT: Yes, it requires notice to the parties and an opportunity to be heard in the event there is any disagreement.
“I have a feeling of that 98 percent of all the property of these parties the lawyers present can sort out without a Court hearing, whether there is any arguable interest or not, and if you can’t, why come back and we will take evidence on the question and determine what is the right thing to do.
“MR. McCLURE: May it please the Court, we have a bill at the present time incurred by the decedent and his wife, most of which are under the $200 limit, requiring probate court approval for payment. Electric light bills, things such as that. Does this order embrace those — the payment of those bills, for example, from salary received by the decedent after his death, from his employer.
“THE COURT: I think that is not any — unless the widow claims any personal and direct interest in that salary. Does she?
“MR. HECHT: Of course.
“MR. McCLURE: Well, we have got to pay bills of the estate in some manner. The funeral bill, for example; the maintenance of the house; utilities; the dental bills and things like this. We have those bills ready to pay now. Now, I am asking if the order of the Court embraces these, we can make an application of the Court to pay those out of these funds.
“MR. HECHT: I think the Court’s order embraces everything. The widow has even more basic needs than that. She needs things such as toothpaste and brushes and she is going to have to apply to the Court for an order to withdraw funds from her own checking account in order to buy toothpaste.
“THE COURT: I think we better apply it to everything and file your application and your appropriate department will approve the payment of the bills from the property available.
“We are adjourned.”
There is no claim any application was made for release of property by appellant.
Although the general rule is that a party is bound by a judgment entered on stipulation or consent and may not appeal from a judgment in which he or she has acquiesced, there is a well-recognized exception in those cases when the party attacks the judgment because of lack of consent or because the judgment deviates from the stipulation or when the party’s attorney had no authority to settle the case and did so without the agreement and consent of his client. (Reimer v. Davis, 224 Kan. 225, Syl. 2, 580 P.2d 81 [1978].) No such exception is shown herein.
Looking through form to substance we have before us an order entered with no objection that was a temporary measure to maintain the status quo until a determination could be had on the merits. Further, the issues raised by the appellant on appeal were not before the trial court for determination.
The order on appeal was not an appealable order. The appeal must be dismissed. In view of this conclusion, the other issues raised need not be considered.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Holmes, J.:
This action for partition of nine parcels of real estate was originally filed by Eugene F. O’Toole, one of three surviving children of Mary Reilly O’Toole and James J. O’Toole, both deceased, against his sister, Kathryn M. O’Toole Yunghans, and brother, James P. O’Toole. Mary Reilly O’Toole died intestate in 1930 and James J. O’Toole died intestate May 6,1968. The nine properties, designated tracts 1 through 9, had been accumulated by the elder O’Tooles during their lifetimes. The two parcels of real property involved in this appeal will be referred to as “tracts 5 and 6.”
Kathryn filed an answer and a cross-claim against her brother James alleging he had obtained title to tracts 5 and 6 as the result of an agreement among the three children that they would enter into a family settlement agreement after their father’s death. She sought to impose a constructive trust on her alleged interest in tracts 5 and 6. While the action was pending in the trial court, Eugene died intestate and Kathryn and James P. succeeded to his interest in the properties as his heirs-at-law. Kathryn also sought an accounting of her brother’s farming of the properties and to recover certain personal property belonging to her father at the time of his death. The case went to trial on Kathryn’s cross-claim against James. At times during the proceedings Kathryn is referred to as plaintiff and James as defendant. Kathryn has appealed from an adverse decision on several points.
Appellant’s first contention is the court erred in not granting her partial summary judgment because James had failed to answer certain requests for admissions within the time allowed by the statutes. On October 5, 1974, appellant filed several requests for admissions which were not answered by appellee within 30 days as required by K.S.A. 60-236. On November 25, 1974, appellant moved for summary judgment on certain issues, arguing the requests must be taken as true due to the failure of appellee to answer within the 30-day period. On April 7,1975, the trial court took the motion under advisement and gave appellee until May 1, 1975, to file his answers. He filed his answers to the requests for admissions on April 17, 1975, and at a subsequent pretrial conference, the court overruled appellant’s motion for judgment and sanctions. The case did not actually go to trial until April 14, 1976.
Appellant contends the trial court abused its discretion in extending appellee’s time to answer the requests for admissions when there had been no motion or request for additional time by appellee nor any objection to the requests for admissions. Appellant argues she was entitled to rely on the provisions of K.S.A. 60-236 to the effect that the matters contained in the requests for admissions are to be taken as true and that she was entitled to limited summary judgment on the matters covered by her motion.
K.S.A. 60-236(o) provides in part:
. . The matter is admitted unless, within thirty (30) days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. . . .” (emphasis added)
The statute grants broad discretion to the trial court in determining the reasonableness of any period longer than the stated thirty days. A leading authority comments in this regard on the federal counterpart to the Kansas statute:
“The court has power to allow additional time for a response to a request for admissions even after the time fixed by the rule has expired. Thus the court can, in its discretion, permit what would otherwise be an untimely answer.” Wright and Miller, Federal Practice and Procedure: Civil § 2257, p. 719 (1970).
The trial court is also vested with considerable discretion in the enforcement of discovery proceedings and orders and in the assessment of penalties against non-complying parties. Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 (1975).
Appellant alleges she was prejudiced by the court’s action although she does not say in what manner. She was apprised of the issues to be decided in the pretrial conference and she had the appellee’s answers nearly a year before the time of trial. There was no abuse of discretion by the trial court.
Appellant additionally complains that when the appellee finally did answer the requests for admissions, he did not do so in accordance with the provisions of K.S.A. 60-236 in that the answers were not made under oath. She contends that unverified answers are the same as no answers at all.
In 1970, Rule 36, the federal counterpart to our statute, was amended to do away with the verification requirement. In an order dated July 20, 1972, this court followed suit. K.S.A. 1972 Supp. 60-236. The order became effective January 1, 1973, nearly nine months before this case was even filed in the trial court. The requirement that the answers be sworn to has been eliminated. Signature by the party or counsel is now all that is required. See Gard, Kansas Code of Civil Procedure Annotated, (1977 Supplement), p. 68. The answers in this case were signed by one of the attorneys for appellee. This argument has no merit whatsoever.
In her second point, appellant argues the trial court erred in granting partial summary judgment to the defendant James P. O’Toole insofar as the action related to personal property which may have been owned by James J. O’Toole at the time of his death. The trial court ruled that any attempt on the part of the appellant to recover personal property was barred by the provisions of K.S.A. 60-513. Our partition statute was amended in 1963 to include personal property. K.S.A. 60-1003(a)(l). K.S.A. 60-513(a)(2) provides that any action for taking, detaining or injuring personal property, including actions for the specific recovery thereof shall be brought within two years. James J. O’Toole died in 1968 and this action was not filed until 1973. Although the statutes allow partition of personal property, appellant’s action in this case was not timely filed. We find no error in the trial court’s ruling on this point.
Appellant’s final points deal with the trial court rulings as to tracts 5 and 6. On September 26, 1950, James J. O’Toole, Kathryn M. O’Toole Yunghans (appellant) and her husband executed a deed conveying their interest in tracts 5 and 6 to James P. O’Toole (appellee). The deed was prepared by John D. Cunningham, an attorney at Seneca, Kansas, and was executed in his office. Appellee testified that he was told by his father that the deed was ready and that he (appellee) should pick it up and record it. Deeds to appellant covering tract 9 and to Eugene covering tract 8 were prepared, delivered and recorded. The deed to Eugene was executed on the same date as the deed to appellee and the deed to appellant was executed earlier in the same year. Appellee never picked up his deed from the office of Mr. Cunningham and later it was returned to James J. O’Toole, who placed it in the family safety deposit box in the bank at Axtell, Kansas. James J. O’Toole advised appellee the deed was there. Appellee had access to the safety deposit box, as did the other members of the family, and could have removed and recorded the deed at any time.
When the death of James J. O’Toole was imminent, Kathryn, along with her attorney, Barney Heeney of Topeka, called a family conference. The unrecorded deed was removed from the safety deposit box and Kathryn and Heeney directed appellee to record it immediately in order to keep the property out of probate. The deed was recorded by appellee that same day. James J. O’Toole died five days later.
Kathryn contends James was to pay their father $85.00 per acre for the property in tracts 5 and 6, that there was no delivery of the deed in 1950, and that it was recorded in 1968 to keep the property out of probate. She asserts there was to be a family settlement agreement and that a constructive trust should be impressed upon tracts 5 and 6 for her benefit to the extent of a one-half interest in the property.
The trial court found there had been a valid delivery of the deed, that no fiduciary relationship existed between appellee and his sister and that Kathryn had no right, title or interest in tracts 5 and 6.
The question of delivery of a deed is ordinarily one of fact with the usual test being whether the grantor by his acts or words, or both, manifested an intention to divest himself of title. Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832 (1969); In re Estate of Loper, 189 Kan. 205, 368 P.2d 39 (1962); Reed v. Keatley, 187 Kan. 273, 356 P.2d 1004 (1960). Delivery is largely a matter of the grantor’s intention to divest himself of title as evidenced by all the facts and circumstances surrounding the transaction. Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095 (1972). Where a deed is effectively delivered, the fact that it is handed back to the grantor for some purpose does not defeat the delivery. Cole, Administrator v. Hoefflin, 187 Kan. 66, 69, 354 P.2d 362 (1960); Stump v. Smarsh, 153 Kan. 804, 809, 810, 113 P.2d 1058 (1941).
“Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with determining whether there is evidence to support such findings. Where the findings are so supported, they will not be disturbed on appeal. It is of no consequence there may have been contrary evidence adduced which, if believed, would have supported different findings.” Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. ¶ 1, 524 P.2d 690 (1974).
There was adequate competent evidence to support the findings of the trial court.
The judgment is affirmed. | [
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Per Curiam:
On March 1, 1977, a panel of the State Board of Law Examiners held a hearing on complaints against respondent Samuel J. Wilson, Kansas City, Kansas. In its report, findings and recommendations, filed with the Court on March 16, 1977, the panel found that the respondent violated the following rules of the Code of Professional Responsibility (220 Kan. cix-cxxvii): DR 1-102 (A) (6), DR 6-101 (A) (3), DR 7-101 (A) (2), DR 9-101, and DR 9-102 (B) (4).
Specifically, the report stated that the respondent: (1) Failed to represent a client in a lawsuit against an insurance company regarding a theft loss, and also failed to return his client’s papers regarding the loss for more than three years; (2) failed to prepare and file a journal entry and decree of divorce for a client until more than two years after petition was filed; (3) failed to file a motion for a client to lower child support payments, having received payment of $150.00 from his client on August 16, 1974, and the motion still had not been heard on March 1, 1976; (4) accepted $300.00 to represent a client in a bankruptcy action, but failed to file the action or to perform any services. The respondent also failed to appear at hearings scheduled before the Ethics Committee of the Wyandotte County Bar Association, regarding complaints of some of his clients.
The panel recommended the respondent be disciplined by “Public Censure,” as provided by Supreme Court Rule No. 203(a)(3) (220 Kan. lxxxiii).
In accordance with Rule No. 213(c) (220 Kan. lxxxviii), a copy of the report, findings and recommendations of the panel was mailed to the respondent on March 16,1977, along with a citation directing him to file with the Court either a statement that he did not wish to file exceptions to the report, or his exceptions to the report.
More than twenty days passed after the citation was mailed and no response was received, and respondent was notified by certified mail on April 21, 1977, to appear before the Court on May 13, 1977, for imposition of discipline, pursuant to Rule No. 213(d) (220 Kan. lxxxviii).
On May 13, 1977, the matter came on for hearing before the Court, the State of Kansas appearing by Philip A. Harley, assistant attorney general, and respondent appearing in person. Additional complaints, not previously considered by the Board of Law Examiners, were called to the attention of the Court. The Court directed the Board to process and hear these complaints and report to the Court covering all pending complaints against the respondent.
Additional complaints were: (1) Respondent had paid no annual attorney registration fee since 1973. He was suspended from the practice of law in Kansas on October 14,1974. (2) Respondent failed to respond to an IRS summons to appear at the Internal Revenue Service in Kansas City, Kansas, on December 30, 1974, and produce records concerning his 1972 and 1973 taxes. In an “Order to Show Cause,” he was directed to appear in the United States District Court on February 23,1976. He appeared and was ordered to produce 1972 and 1973 tax records on or before March 15,1976. He failed to comply and a bench warrant was issued for his delivery to the United States Marshal on January 10,1977. He was arrested on January 12, 1977, committed to the Wyandotte County jail overnight, and released on January 13 on his own recognizance. The IRS ultimately obtained material sought from respondent and the case was dismissed.
The additional complaints were set for hearing by a panel of the State Board of Law Examiners on August 25, 1977. Donald E. Jensen, assistant attorney general, appeared on behalf of the attorney general, and respondent did not appear. After determining there was some question regarding whether proper service of the additional complaints had been made on the respondent, the panel decided to continue the hearing in order that proper service could be assured. The date set for completion of the hearing was October 10, 1977. Philip A. Harley, assistant attorney general, appeared on behalf of the attorney general and presented evidence that respondent had been notified to appear. Again, respondent did not appear and the complaints were submitted to the panel for decision.
On November 2, 1977, the panel of the State Board of Law Examiners found that the respondent violated the following rules of the Code of Professional Responsibility: DR 1-101; DR 1-102 (A) (4), (5) and (6); and DR 3-101 (B).
The panel recommended that “Public Censure” was not sufficient discipline and that the respondent be disciplined by “Disbarment,” as provided by Rule No. 203(a)(1) (220 Kan. lxxxiii).
On November 4, 1977, in accordance with Rule No. 213(c), a copy of the report, findings and recommendations of the panel was mailed to the respondent by certified mail, along with a citation directing him to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report. The letter was returned to the Clerk of the Appellate Courts unopened and marked “Unknown.”
On March 1, 1978, a letter was mailed by certified mail directing respondent to appear before the Court on March 31, 1978, for the imposition of discipline, pursuant to Rule No. 213(d). Again, the letter was returned to the Clerk of the Appellate Courts unopened and marked “Unknown.”
On March 31, 1978, the matter came on for hearing before the Court, the State of Kansas appearing by Philip A. Harley, assistant attorney general, and respondent appearing not, and the Court, after consideration of the record and being fully advised in the premises, finds the recommendation of the State Board of Law Examiners should be accepted.
By Order of the Court, dated this 31st day of March, 1978.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Samuel J. Wilson be and he is hereby disciplined by disbarment and that he pay the costs of the proceeding. It is further ordered that this Order of Disbarment be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal from the judgment of the district court affirming the denial by a regional planning commission of appellants’ applications for conditional use permits.
In its memorandum of decision the trial court made detailed findings as to the exact nature of the desired use of the property. These findings are not in dispute. The portion of the decision relevant to this appeal is as follows:
“International Villages has options to purchase land from other plaintiffs for the purpose of construction and operation of a recreational vehicle (called RV) campground, for pull type house trailers, self-contained and otherwise, 5th wheel trailers, motor homes, campers, pop-up tents, and the like.
“This land is zoned residential and agricultural. A conditional use permit is required to operate the proposed facility. The Planning Commission, after hearing, denied issuance of the conditional use permits and Plaintiffs appeal to this court. Plaintiffs claim the action of the Planning Commission was unreasonable, arbitrary, capricious and unlawful.
“Land on which this campground is proposed is bounded on three sides by land owned by the Corps of Engineers of the United States Government in connection with Perry Reservoir. International Villages seeks to operate under a franchise from Jellystone, which is a national organization for this type of facility, and which bears a good reputation, according to the evidence. International Villages (called International) has financing capability of at least $2,500,000.00, and has sufficient financial ability to carry out its plans, if permitted to do so.
“The area involved consists of 120 acres, although some evidence shows possible expansion to 170 acres.
“The plan of International includes certain ‘amenities’ which are said to include a ‘Ranger Station’ which is a lounge type building, a country store, grocery store, swimming pool, miniature golf course, children's concessions, and certain ‘comfort stations’ which the court interprets to mean rest rooms, inasmuch as ‘comfort stations’ were not described with particularity.
“International proposes to create 1,000 camp sites on subject property, of an average dimension of 50 x 60 feet, of which 150 will be reserved for rental and 850 will be sold to individuals. Sale price for the lots will be $3,900.00, each. 25 acres will be reserved for the amenities area.
“Internal roadways and streets will be constructed, surfaced with gravel, except asphalt streets will be constructed in the amenities area. These will not be dedicated to the public.
“Water will be available in sufficient quantities from a Rural Water District. Electricity is available and sufficient.
“The sewers will be initially installed by International, and the proposal is for a non-overflow lagoon system, the initial concept of which has been approved by the State Board of Health. The proposal calls for 20% of the lots to be connected to the sewer line, 80% not connected.
“There will be four comfort stations; there will be one dump station in the central amenities area for dumping of wastes from self-contained RVs, and one dump station by each comfort station.
“International will retain ownership of the income producing amenities, and the 15% of the camp sites for rental, although these may be sold to a third party. Ownership of lots sold will vest in the respective purchasers; ownership of the streets, sewer system, electric system, water system, comfort stations and non-income producing amenities will be owned in common by the owners of the land. Management of the property owned in common (the streets, non-income producing amenities, water, sewer system, etc.) is proposed to be undertaken by a Home Owners Association plan which will have restrictions, although such a plan is not finalized.
“Security is said to consist of a guard at the entrance to the facility.
“Entrance to the facility will be from Jefferson County Road B.
“Surveys of International indicate there are 22,000 RV campers within one hour driving time of the proposed facility, and that the 850 lots for sale can be sold within IV2 to 2 years, sales to be on installment contracts for the most part.
“Surveys of International indicate the facility will contain 2,100 persons on peak days, 9,540 persons during peak weeks, and will be used 308,210 people days per year.
“At this time, there are 37 developments in the Perry Reservoir area; there are 9 Federal Public Use areas around the lake that have camping facilities, and there is one Kansas State park with camping facilities. There are over 100,000 persons in this area on peak week-ends. Access roads, Highways 92 and 16 between Tonganoxie and Ozawkie, are repeatedly clogged with boats, campers and RVs. One road, County Road B, serves the Slough Creek Area and the subject area. This road is heavily traveled, and is very expensive to the County to maintain, is in bad condition, with chuck holes and deteriorating shoulders due to the volume of traffic it carries.
“By reason of the numbers of people now using this area, Jefferson County has had continual police and ambulance problems; by reason of recent regulations, the County has been required to take over all ambulances operating within the County, and the County now operates two ambulances. The expense for the Sheriff’s department to the County has tripled. Expense for road maintenance has greatly increased. The County levies the maximum tax levy permitted by law, and in addition has received federal ‘revenue sharing’ to the extent of $120,000 to $140,000.00 per year, which may or may not continue. Without this ‘revenue sharing’ it is not possible for the County to maintain the necessary health, road maintenance, and police services now required for the present influx of persons, not including those sought to be brought in by plaintiffs. The resources of Jefferson County are now taxed, in all respects, to the limit.
“Services demanded and required for this influx of persons exceeds tax revenue generated by these developments and public use areas.
“Experience of and in Jefferson County with Home Owners Associations has been bad. This type of facility creates diverse ownership by transient people whose interest has been shown to be short-lived. Home Owners Associations operate with revenues contributed by the diverse owners who rarely participate. The history of such an Association type of management of a development in Jefferson County shows increasing problems with interior roadways and streets, sewers, water, and the maintenance thereof.
“Close to subject tract, there is a RV campground owned and operated by one Hendrix, who was granted a conditional use permit. However, the Hendrix facility is a camping facility only, and not at all similar to International’s proposal. Hendrix’s facility is much smaller, Hendrix owns all the land, owns all the electric and sewer facilities, owns the roadways and is personally responsible for maintenance. Hendrix is not permitted to sell lots; there is no diversity of ownership; there is no Home Owners Association.
“As correctly pointed out by plaintiffs, this is really a case involving denial of conditional use permits, and is not a zoning case. The Zoning Regulations do not permit a RV campground and the only way they can be permitted is through conditional use permit.
“Plaintiffs, in their brief, pose the controlling question thus:
‘Is a commercial campground of the nature proposed by International Villages a project which sufficiently threatens the health, safety and welfare of the inhabitants of Jefferson County, Kansas, that it may properly be denied a conditional use permit?’
“Article 80.1 of the Zoning Regulations, CONDITIONAL USE PERMITS, PURPOSE, states:
‘Certain kinds of uses need to be reasonably controlled by specific requirements that provide practical latitude for the investor but at the same time, maintain adequate provision for the security of the health, safety, convenience, prosperity or general welfare of the community’s inhabitants. In order to accomplish such a dual objective, provision is made in these Regulations for a more detailed consideration of each conditionally permitted use as it relates to location, design, size, method of operation and intensity of land use which in turn effects the volume of traffic generated and traffic movements, the concentration of population and the kinds of public facilities and services it requires. Land and structure uses possessing these particularly unique characteristics are permitted through the issuance of a Conditional Use Permit with conditions and safeguards attached as may be deemed necessary by the Planning Commission.’ (Emphasis supplied.)
“Article 80.3, REVIEW BY PLANNING COMMISSION, recites, among other things:
‘A. The Planning Commission shall review the proposed development as presented in the application in terms of these Zoning Regulations. . . .
‘B. The Planning Commission shall find adequate evidence that such use on the proposed location:
1.Will/will not be harmonious with the general objectives of the Master Plan.
2.....
3. Will/will not be hazardous or disturbing to existing or future neighboring uses.
4. Will/will not be detrimentaHo property in the immediate vicinity or to the community as a whole. . . . .’ (Emphasis supplied.)
“In denying the application for change of zone and for conditional use permits, the Planning Commission considered the impact of International’s proposal to the area financially, ecologically, the impact on county roads, the impact on county finances, the impact on the county government, and its experience with Home Owners Associations. Denial was couched in the following words:
1. Would not be harmonious with the general objectives of the Master Plan.
2. Could be hazardous or disturbing to existing and/or future neighboring uses.
3. Could be detrimental to property in the immediate vicinity or to the community as a whole.
“It is seen the use of the word ‘could’ is in error. However, the evidence leads the Court to the conclusion that the Planning Commission’s finding #1, ‘Would not be harmonious with the general objectives of the Master Plan,’ is amply supported by the evidence. The subject area is not included in ‘recreational area’ in the zoning map, master plan, although it is close by or adjacent.
“Plaintiff argues the Planning Commission or this Court should state under what conditions a conditional use permit will be issued to International; that it is unlawful to deny issuance of a conditional use permit outright; that nowhere in Article 80 is it stated that a conditional use permit may be flatly denied.
“A master plan is a guide to development. Bodine v. City of Overland Park, 198 Kan. 371. This, of necessity, includes the right to limit development, limit the impact on a rural community of unbearable concentrations of population in this type of facility and other facilities generated by the Perry Reservoir; this includes the right of a rural community to protect itself against ever increasing demands made in the name of recreation, demands on the people of Jefferson County, Kansas; demands for ever increasing police protection, health-ambulance services, ever-increasing tax loads generated in the name of recreation without generating equal tax revenues. Article 80.1 of the Zoning Regulations, above, recognizes these very same considerations when it speaks of ‘method of opera tion,’ ‘intensity of land use,’ ‘volume of traffic generated,’ ‘concentration of population,’ ‘public facilities and services it requires.’
“Article 80.3 of the Zoning Regulations, above, states the Planning Commission reviews the ‘proposed development as presented.’
“The Planning Commission has ample authority, if warranted by the evidence, to deny a conditional use permit. The Court is of the opinion that a conditional use permit may be ‘flatly denied’ if warranted by the evidence.
“Plaintiffs suggest the Planning Commission acted behind closed doors, in violation of the open meeting law. This is not supported by the evidence.
“The Court concludes plaintiffs have a right to appeal the decision of the Planning Commission to the District Court, and that plaintiffs have standing.
“The Court concludes from the evidence the action of the Planning Commission in denying change of zoning and in denial of the conditional use permits on the ground the same are not harmonious with the general objectives of the Master Plan was not arbitrary, capricious or arbitrary and was not unlawful. The decision of the Planning Commission is amply supported by competent evidence. . . .”
The ultimate issue in the case is whether the denial of the applications for conditional permits was unreasonable. The appeal to the district court was taken pursuant to K.S.A. 19-2926 which provides:
“Any and all acts and regulations provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act or regulation determined by bringing an action against the county commissioners in the district court of the county.”
The appellants attack the judgment on both substantive and procedural grounds. To understand the issues, it is necessary to recount the manner in which this action developed.
The first hearing before the Jefferson County Regional Planning Commission on the applications was held September 23, 1975. Prior to the meeting International supplied Gerald Rose, the Planning Director, with all the data he requested. After the completion of the agenda, the Planning Commission went into “executive session.” At first, the permits were approved. Later on, during the same session, the approval was withdrawn and the applications were tabled for “further study and discussion of conditions to be attached for approval.” In accordance with the practice of the Planning Commission, International was not present at the “executive session.” Mr. Rose advised International by letter as to what had transpired and stated he would contact International prior to the next meeting to discuss “some of the proposed conditions which will be stipulated.” No such contact was made. The second hearing was held on October 28, 1975. At the close of this hearing, the Commission again went into “executive session” and rejected the applications. The grounds for the denial appear in the memorandum opinion of the district court.
On appeal International attacks the manner in which the Planning Commission arrived at its ultimate decision. It complains that although the Planning Commission consists of seven members, only three of the members were present at both meetings. There is no showing that the Commission lacked a quorum at either meeting, but, rather, that some members were present at one meeting that were not present at the other meeting. This point is without merit.
International next contends that the “executive sessions” violated the Open Public Meetings Act, K.S.A. 75-4317, et seq. Subsequent to the meetings herein, K.S.A. 75-4318 was amended to exclude bodies deliberating matters relating to a decision involving quasi-judicial functions. Zoning change applications were held to be quasi-judicial in nature in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). There is some dispute as to whether International was excluded from attending the “executive sessions.” Whether or not the “executive sessions” violated the Public Meetings Act does not void the actions taken and appellants raise the question only as evidence of “unreasonableness.” The record has been reviewed and there is no showing the purpose of such sessions was to defeat or defraud International. The procedure of the Planning Commission was quite informal, but this does not vitiate its actions.
International contends that the Planning Commission did not have authority to issue flat denials of the applications. It contends it should have had an opportunity to comply with conditions or negotiate objected-to elements of the project. In support of this contention it cites Section 80.3 of the Jefferson County Zoning Regulations as follows:
“C. The Planning Commission shall require as conditions of approval any other requirements, including guarantees that any conditions will be fulfilled, that it deems necessary to fulfill the intent of these Regulations.”
Under this rationale, an application to establish a bawdy house could not be flatly denied. A planning commission may deny an application for a conditional use permit without stating any conditions for approval. If the applications for conditions are granted, then the approval may be conditioned on certain re quirements being complied with. An application may be denied in toto.
International next complains that the trial court considered evidence not before the Planning Commission.
The rules on reviewing evidence are summarized in Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975):
“On judicial review a court may receive evidence which was not presented to an administrative agency where such evidence is relevant to the limited issues before the court. However, a party appearing before an administrative body cannot produce his evidence piecemeal; i.e., he cannot produce part of his evidence before the administrative agency_and then produce the balance on judicial review.” (Syl. 7.)
This court further elaborated in that decision at 560:
“In Rydd [v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969)] we said:
‘. . . The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review — the test being the evidence must be relevant to the limited issue before the court on appeal. . . . (202 Kan. at 732.)
This principle is subject to the important qualification that ‘a party appearing before an administrative body cannot produce his evidence piecemeal. He cannot produce part of his evidence before an administrative agency and then produce the balance on judicial review .’(Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 402, 479 P.2d 860.)
“In Keeney [v. City of Overland Park, 203 Kan. 389, 454 P.2d 456 (1969)] we said:
‘. . . Parties attacking the reasonableness of an ordinance should not be precluded from the presentation of relevant evidence showing unreasonableness, even though such evidence was not presented to the governing body. This is not meant to imply that the hearing in district court should be a retrial on the merits of the zoning application, irrespective of whether or not a record was made of the city council’s proceedings; neither does it imply that a party may lie in wait and ambush the other side at the district court hearing. The district judge remains armed with his usual discretion in admitting or rejecting evidence, and his rulings will not be disturbed unless substantial rights of a party are thereby affected.’ (203 Kan. at 394.)”
The trial court may take additional evidence that is relevant to the limited issues of reasonableness and legality of the order appealed from. Keeney v. City of Overland Park, 203 Kan. 389, 394, 454 P.2d 456 (1969); Rickard v. Fundenberger, 1 Kan. App. 2d 222, 563 P.2d 1069 (1977).
Much of the objected-to “new” evidence relates to testimony of Planning Commission members as to what was considered by them in denying the applications. International, itself, presented evidence not before the Planning Commission. No abuse of discretion is shown in the admission of evidence.
This brings us to the ultimate issue of whether or not the denial of the applications for conditional use permits was unreasonable.
The trial court upheld the denials on the ground that there was ample evidence to support the Commission’s conclusion that the project “[w]ould not be harmonious with the general objectives of the Master Plan.”
From the findings of the trial court, which are supported by substantial competent evidence, the picture develops of a quiet county with a rather stable population which is suddenly “host” to thousands of transient pleasure seekers. This transformation arose by the creation of Lake Perry. County resources to handle such masses of humanity are stretched to the limit. The primary reason for the denial appears to be a concern about 850 landowners of temporary occupancy who own lots to be used for recreational purposes. Permanent structures and actual residency are not the purposes of ownership. Instead, the owners would use the lots as temporary locations for R.V. vehicles. Yet, these same lot owners are to be financially responsible for the maintenance of the streets, sewer system, water system, comfort stations, and other non-income producing amenities of the large project. The “Home Owners Association” is to collect sufficient sums from the 850 lot owners and International (for the unsold 150 lots) to maintain these public areas. Concern for the efficacy of such a system and the financial impact on the county if the system does not function is a legitimate concern. Under the totality of the circumstances, the denial of the applications was not unreasonable.
Other points raised are considered and found to be without merit.
The judgment is affirmed. | [
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Brazil, J.:
William T. Noon appeals the trial court’s denial of his motion for a new trial following a verdict favorable to the defendant in a negligence lawsuit. We reverse and remand for a new trial.
Upon finding that a journal entry of judgment had not been filed following the jury verdict, this court, on its own motion, questioned its jurisdiction to entertain a premature appeal. The parties were given seven days following oral argument in which to respond.
We have verified that the journal entry was filed on March 17, 1992, and conclude that we have jurisdiction to consider this appeal based on Noon’s timely, though prematurely filed, notice of appeal. Uhock v. Sleitweiler, 13 Kan. App. 2d 621, 778 P.2d 359 (1988); Denno v. Denno, 12 Kan. App. 2d 499, 500, 749 P.2d 46 (1988).
This action arises from a vehicular accident involving vehicles operated by Noon, Carol K. Smith, and John D. Taylor, Jr. The vehicle driven by Smith struck the vehicle driven by Taylor, causing Taylor’s car to strike Noon’s car.
Noon filed suit naming Taylor and Smith as defendants, alleging their negligence and claiming both pecuniary and nonpecuniary damages. Taylor was later dismissed from the lawsuit.
Prior to trial, Smith admitted she was 100 percent at fault, and the case proceeded to a jury trial on the issue of what, if any, injuries Noon had suffered and what damages he should be awarded. After presentation of the evidence, the trial judge gave the jury its instructions and a verdict form. The relevant part of the verdict form read as follows:
“We, the jury, present the following answers to questions submitted by the Court:
“1. Do you find that the Plaintiff, William T. Noon, sustained a permanent injury in the automobile accident of July 20, 1989?
Yes _ No _
“2. Do you find that the Plaintiff, William T. Noon, sustained an injury in the accident of July 20, 1989 requiring medical treatment having a reasonable value of $2,000.00 or more?
Yes _ No _
“If you answered both questions 1 and 2 with a ‘No’, the verdict is complete and the Verdict Form should be signed by the jury floor [sic] person and returned to the Court. If you answered either question 1 or question 2 with a ‘Yes,’ you must answer questions 3 and 4.
“3. What damages do you find were sustained by William T. Noon?
A. Noneconomic loss to date $.
B. Future noneconomic loss $.
C. Medical expenses to date $.
D. Future medical expenses $.
E. Economic loss to date $.
F. Future economic loss $.
TOTAL DAMAGES
(add A through F) $_:_•
“4. ’ Our finding of monetary damages for noneconomic loss - 'stated in paragraph 3A includes $_ for pain,and suffering.”
Eleven members of the jury agreed in answering both questions one and two with a “no.” Following the instructions of the vferdict form, the jury did not go on to answer questions three and four concerning damages. The court, upon receiving the jury’s verdict, treated it as a final judgment favoring Smith and awárded no damages to Noon. Noon’s motion for new trial was denied, ahd this appeal followed.
Noon contends that the court’s instructions to the jury in the verdict form were erroneous and that the trial court should, therefore, have granted his motion for a new trial. The district court, in denying the motion, found there, “was no clear error, and that plaintiffs counsel had waived any objections by failing, on two occasions, to object to the verdict form.”
K.S.A. 60-251(b) states, in relevant part:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.”
Noon does not deny that he failed to object to the yerdict form prior to entry of the jury’s verdict. There is reversible error, then, only if the instructions were clearly erroneous. K.S.A, 60-251(b).
“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 that the jury would have returned a different verdict, [Citation omitted.]
“Error cannot be predicated on the trial court’s refusal to, give an instruction when its substance is adequately covered in other instructions. [Citations omitted.]
“Instructions are to bé cónsidered together and reád as a whole, without isolating any one instruction. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as. a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.” Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 (1983).
A notation at the end of the verdict form indicates, that its language was taken from PIK Civ. 2d 20.03 (1990 Supp.). Only questions three and four, however, are taken from the PIK cited. Questions one and two were apparently intended to address the question of whether the plaintiff had met the threshold requirements of K.S.A. 1991 Supp. 40-3117.
K.S.A. 1991 Supp. 40-3117 is a section of the Kansas Automobile Injury Reparations Act, commonly known as the Kansas No Fault Insurance Act. The statute sets forth certain threshold conditions that must be met before a plaintiff in a tort action can collect damages against another motorist for pain, suffering, mental anguish, inconvenience, and other nonpecuniary loss.
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of $2,000 or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death.” K.S.A. 1991 Supp. 40-3117.
The court’s instructions to the jury contained within the verdict form were clearly erroneous. A failure to meet the threshold requirements of K.S.A. 1991 Supp. 40-3117 does not preclude an action for actual expenses and pecuniary loss resulting from a collision. Key v. Glegg, 4 Kan. App. 2d 267, 270, 604 P.2d 1212, rev. denied 227 Kan. 927 (1980). While failure to meet the threshold precludes an action or award of damages for nonpecuniary losses, if liability is established, a plaintiff can still collect for pecuniary losses such as medical expenses and lost wages. Mayer v. Harris, 224 Kan. 231, 232-33, 579 P.2d 715 (1978). The verdict form, by instructing the jury that the verdict was complete once it had answered questions one and two in the negative, denied the jury the opportunity to consider Noon’s claims for present medical expenses of less than $2,000 and for any other pecuniary loss, including future medical expenses and lost wages. Such an instruction can only be termed clearly erroneous.
Also, the verdict form only addressed (1) whether Noon had sustained an injury in the accident requiring medical treatment having a reasonable value of $2,000 or more, and (2) whether he had sustained a permanent injury in the accident.
K.S.A. 1991 Supp. 40-3117 sets forth eight different conditions and if any one of them is met a plaintiff may recover nonpecuniary damages:
“ ‘[W]e find that the legislature has prohibited tort actions for pain, suffering and other nonpecuniary damages arising out of an automobile accident unless the plaintiff’s injury meets one of eight criteria: it must (1) require at least $500 [now $2,000] in medical expenses; (2) result in permanent disfigurement; (3) be a fracture of a weight-bearing bone; (4) be a fracture which is compound, comminuted, displaced or compressed; (5) involve loss of a body member; (6) be permanent; (7) result in permanent loss of a bodily function; or (8) result in death.’ ” Stang v. Caragianis, 243 Kan. 249, 254-55, 757 P.2d 279 (1988).
A transcript of the trial has not been included in the record, so we cannot determine if there was evidence of injuries that would meet one or more of the other criteria. If there was such evidence, Noon might still have been eligible for damages for pain and suffering despite the jury’s negative responses to questions one and two.
The verdict form was clearly erroneous in that, if the trial errors had not occurred, there is a real possibility that the jury would have returned a different verdict in the form of damages for medical expenses, lost wages, and, possibly, pain and suffering.
Reversed and remanded for a new trial on the issue of what, if any, injuries Noon has suffered and what damages he should be awarded. | [
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Davis, J.;
Keen A. Umbehr appeals the dismissal of his petition for declaratory judgment and injunctive relief, which contested the reasonableness, of the decision of the Board of Wabaunsee County Commissioners (Board) to increase county landfill user rates. The court held that Umbehr’s right of appeal was governed by K.S.A. 19-223, which requires action within 30 days of the Board’s decision. Because Umbehr did not perfect his appeal within that period of time, the court dismissed his action. We reverse and remand for further hearing.
Keen A. Umbehr is a trash hauler doing business as Solid Waste Systems. He provides residential trash pickup service for six towns and hauls solid waste for a number qf cqmmercial custqmers. He hauls approximately 90% ef the cemmercial trash te the Wabaunsee Cqunty landfill.
Umbehr has had a contract with the Board for trash dumping since 1986. He is charged for dumping 600 yards of trash per month at the prevailing rate regardless of the amount actually dumped.
On March 29, 1990, the Board voted to increase the rates for pickups with sideboards and two-wheel trailers with sideboards from $3 to $4. The rate for dump trucks and compactor trucks was increased from $2 per yard to $4 per yard. The rate for cars, pickups, and pickups with two-wheel trailers was not increased.
The county also voted to receive 25% of the fees from the dump trucks and compactor trucks to pay for expenses that had been paid out of the general fund and for future expenses, including the establishment of groundwater monitoring wells and engineering consulting fees.
The new rates were to be effective June 1, 1990. Umbehr testified that his user rate under the new schedule would increase from $1,200 per month to $2,400 per month. He also testified that it takes 60 to 120 days to obtain an approval for an increase in residential rates from each of the towns he serves.
Umbehr filed a notice of appeal with the Wabaunsee County Clerk on May 16, 1990, and on June 1, 1990, filed the present petition for declaratory judgment and application for a restraining order. Upon hearing, the court held in its August 8, 1990, memorandum decision that because the Board’s actions were legislative in nature, “the issue of the reasonableness of the Board’s action in adopting the new rate schedule is a proper subject for determination by declaratory judgment under the facts.” The court granted a temporary injunction until factual support was produced upon which the court could determine the reasonableness of the rate increase.
In a supplemental memorandum decision on August 24, 1990, the court held that the Board’s action in adopting the rate increase was unreasonable and arbitrary. However, on October 1, 1990, pursuant to a request from the Board, the court dismissed Umbehr’s case because he had failed to file an appeal from the rate increase within 30 days as required by K.S.A. 19-223. This appeal follows.
The following provisions of K.S.A. 19-223 appear to apply to Umbehr’s appeal to the district court:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision.”
Umbehr argues that the provisions of this statute apply only to appeals from judicial or quasi-judicial actions of a board, not legislative actions such as an increase in landfill rates.
All parties, the district court, and we agree that the actions of the Board in this case were legislative. See Gonser v. Board of County Commissioners, 1 Kan. App. 2d 57, Syl. ¶ 2, 562 P.2d 102 (1977). Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 998-99, 667 P.2d 879 (1983), holds that K.S.Á. 19-223 does not apply to appeals from legislative decisions by a board of county commissioners:
“K.S.A. 19-223 provides the exclusive method by which a district court may review a judicial or quasi-judicial decision of a board of county commissioners. [Citation omitted.] The statute affords jurisdiction only when a board of county commissioners has engaged in judicial or quasi-judicial action. [Citation omitted.] . . . K.S.A. 19-223 is not applicable when one appeals a legislative-type decision by a board of county commissioners.”
While the case of Linsea v. Board of Chase County Comm’rs, 12 Kan. App. 2d 657, 753 P.2d 1292, rev. denied 243 Kan. 779 (1988), relied upon by the Board, provides some support for its position, we note that on the critical issue we must resolve, Linsea provides no direct support. In any event, our Supreme Court has clearly stated that K.S.A. 19-223 is not applicable to appeals from legislative-type decisions. We are duty bound to follow Dutoit and conclude that the trial court erred in dismissing Umbehr’s petition based upon his failure to comply with the provisions of K.S.A. 19-223.
Both parties rely upon Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978). We believe that Brinson provides a basis for concluding that the district court had jurisdiction over Umbehr’s petition for declaratory judgment and injunctive relief. Brinson advises that courts have no inherent appellate jurisdiction over official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review. 223 Kan. 465, Syl. ¶ 2. Brinson further advises that we first look to whether there are any special statutes authorizing the appeal. In this case, we have concluded that K.S.A. 19-223, while arguably an applicable special statute, fails to authorize the appeal because of the nature of the legislative-type action taken by the Board. We then look to the. provisions of the omnibus statute, K.S.A. 1991 Supp. 60-2101(d). However, the provisions of K.S.A. 1991 Supp. 60-2101(d) are limited to appeals from administrative decisions of boards that exercise judicial or quasi-judicial, functions. 223 Kan. 465, Syl. ¶ 4, Brinson finally advises that
,“[i]n the absence of.a statutory provision for appellate review of an administrative decision no appeal is available but. relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. (State, ex rel. v. Unified School District, 218 Kan. 47, 50, 542 P.2d 664:)” 223 Kan. at 467.
Thus, we are able to conclude that no statutory provision exists for appeal from this legislative-type rate increase action by the Board. However, the district court had jurisdiction to consider the acts of the Board in increasing the rate under Umbehr’s equitable action for injunction.
Nevertheless, the Board argues that even if the district court had jurisdiction, it was limited to determining if the Board had statutory áuthority to raise the landfill user rates and would be unable to consider the reásonableness of the Board’s decision. The Board relies on Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 249 Kan. 149, 815 P.2d 492 (1991), and State, ex rel. v. Unified School District, 218 Kan. 47, 542 P. 2d 664 (1975).
The language from Cedar Creek relied on by the Board involves the court’s discussion of In re Appeal of City of Lenexa; 232 Kan. 568, 657 P.2d 47 (1983), and K.S.A. 12-521. In City of Lenexa, the court stated:
“The judicial review of the Board’s determination of the advisability of the annexation, however, is the review of the legislative function. The duty of the district court, and of this court on appeal, is limited to a determination of whether the Board has the statutory authority to enter the order which it made.” 232 Kan. at 576.
The court continued:
“ ‘The wisdom, propriety, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. [Citations omitted.] The basic function and duty of the courts is to determine whether a city has statutory authority and has acted thereunder in passing an annexation ordinance.’ ” 232 Kan. at 576 (quoting State, ex rel. v. City of Overland Park, 192 Kan. 654, 656, 391 P.2d 128 [1964]).
The Unified School District court, in discussing what is now 60-2101(d), stated that an administrative agency could not be the ultimate interpreter of the law and that if the agency acted beyond the scope of its powers and no appeal was available, relief could be sought in equity. 218 Kan. at 50. The Unified School District court continued by stating that
“ ‘the courts are always open to hear meritorious complaints against illegal or oppressive acts of non-judicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby; but not by appeal where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some appropriate extraordinary legal remedy recognized in our practice — injunction, mandamus or quo warranto.’ ” 218 Kan. at 50.
The court concluded that “[t]he state election board is therefore not the final arbiter of [K.S.A. 25-2201(b)], despite its [conclusive and exclusive] language; if the board acts beyond its authority, hence ‘illegally,’ it is subject to judicial review through a proper action.” 218 Kan. at 50.
We conclude that since there is no statutory authority for appeal from the legislative-type action of the Board in this case, the district court had jurisdiction under its equitable powers to consider the reasonableness of the action of the Board in increasing the rate. Umbehr’s action for declaratory judgment and injunction was therefore not limited to a determination of whether the Board acted within its statutory authority, but vested the court with jurisdiction to consider the reasonableness of the Board’s action in increasing the landfill user rates.
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Rulon, J.:
The Catholic Diocese of Dodge City, plaintiff, appeals the district court’s award of summary judgment to Farmers Insurance Co., Inc., (Farmers), defendant, in a garnishment proceeding. The Catholic Diocese contests the court’s finding that property damage caused by an insured under the provisions of a homeowner’s policy issued by Farmers is excluded from coverage under that policy. We reverse and remand the cause with directions.
The facts distilled to their essence are as follows:
On September 25, 1988, Anthony Hammeke, a minor, participated in acts of vandalism against St. Patrick’s School, which is located in Great Bend, Kansas. The Catholic Diocese, owner of the school, filed a petition against Anthony and his parents, Allan and Brenda Hammeke, alleging a cause of action for property damage against Anthony; and a cause of action for property damage against Allan and Brenda based on their failure to exercise reasonable parental care in controlling and supervising Anthony and on their liability pursuant to K.S.A. 38-120 for the damages intentionally caused by Anthony. Farmers, Allan and Brenda’s homeowner’s insurer, was notified of the action on October 19, 1989.
Eventually, the district court ordered a default judgment in rem against Allan and Brenda Hammeke for failure to exercise reasonable care in controlling and supervising Anthony. The damages awarded were $18,858.67. The Catholic Diocese then filed for an order of garnishment against Farmers. Farmers filed an answer claiming it was not indebted to Allan and. Brenda under their homeowner’s insurance policy because the policy did not cover property damage either expected or intended by the policy insureds.
The pertinent provisions of the homeowner’s policy before us are as follows:
“DEFINITIONS
“Throughout this policy, ‘you’ and ‘your’ mean the ‘named insured’ shown in the Declarations and spouse if a resident of the same household. ‘We,’ ‘us’ and ‘our’ mean the Company named in the Declarations which provides this insurance. In addition certain words appear in bold type. They are defined as follows:
1. Under Section II-Liability, occurrence means: a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.
7. Insured means you and the following persons if permanent residents of your household:
a. your relatives.
b. anyone under the age of 21.
“SECTION II-LIABILITY
“Coverages
‘Coverage E-Personal Liability
“We shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damage covered by this policy.
“At our expense we shall defend an insured against any covered claim Or suit. We may investigate and settle any claim or suit that we consider proper
“Exclusions
“Applying To Coverage E AND F-Personal Liability and Medical Payments To Others
“We do not cover bodily injury or property damage:
3. Either:
a. caused intentionally by or at the direction of an insured, or
b. resulting from any occurrence caused by an intentional act of an insured person where the results are reasonably foreseeable.
“Conditions
2. Separate Insurance. This insurance applies separately to each insured. This condition does not increase our limit of liability for any one occurrence.”
, Both parties ultimately moved for summary judgment. The district court granted summary judgment to Farmers. The court essentially ruled that Anthony was an insured under the policy and that the damage he caused was intentional.
We must decide if the homeowner’s policy issued by Farmers to. Allan and Brenda provides coverage for their liability in an action which sought recovery for intentionally caused property damage caused by another insured under the same policy.
The standard of appellate review of a grant of summary judgment is well established:
“Summary judgment is proper where 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 júdgment as a matter of law. [Citations omitted.] 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 for,summary judgment. [Citations, omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
The parties agree there are no controverted material facts.
The Catholic Diocese first argues Farmers is bound by the default judgment finding Allan and Brenda negligent in super vising Anthony. The Catholic Diocese specifically argues that because Farmers merely refused to defend the Hammekes instead of seeking a declaratory judgment on its duty to defend or reserving its rights in the lawsuit, it should be bound by the default judgment because it did have a duty to defend the Hammekes in the lawsuit.
The Kansas Supreme Court discussed the rules governing an insurer s duty to defend in Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 709-10, 732 P.2d 741 (1987):
“Patrons is not bound to defend an insured in actions brought wholly outside any coverage obligations assumed in the policy or when the insurer would have no liability if the plaintiff secured a judgment against the insured. Where there is no coverage, there is no duty to defend. [Citation omitted.]
“Patrons must look beyond the effect of the pleadings and consider' any facts brought to its attention or any facts which it could reasonably discover when determining whether it has a duty, to defend. If those facts give rise to a ‘potential of liability’ under the policy, Patrons has a duty to defend. [Citation omitted.] The possibility of coverage may be remote, but if it exists the company owes the insured a defense..The possibility of coverage must be determined by a good faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. [Citation omitted.]”
The Catholic Diocese argues that-the holding in Patrons requires that an insurer, to prevent an estoppel effect by the underlying lawsuit, either file a declaratory judgment action or reserve its rights when a question of policy coverage exists. In the context of conflicting interests between the insurer and the insured, the Patrons court did state: “We believe [reservation of rights by the insurer] is the proper procedure to protect the rights of both parties under their contract.” 240 Kan. at 712. Furthermore, this court in Southgate Bank v. Fidelity & Deposit Co. of Maryland, 14 Kan. App. 2d 454, 456, 794 P.2d 310 (1990), did interpret Patrons to mean that “where there is a separate action on the coverage question, issues decided against the insurer’s interest in an underlying tort suit can have binding or estoppel effect.”
However, in this garnishment proceeding, a separate action on Farmers’ coverage of Allan and Brenda’s liability for property damage, Farmers does not contest or wish to relitigate the default judgment finding Allan and Brenda negligent in supervising their minor son Anthony. Farmers is only arguing that Allan and Brenda’s liability for this judgment is not covered by the policy because the action originally sought recovery for damages intentionally caused to property, damages which its policy excludes from coverage. Under Patrons, the ultimate determination of whether there is a duty to defend is whether coverage exists under an insurance policy. “Where there is no coverage, there is no duty to defend.” Patrons, 240 Kan. at 709.
The law is well settled concerning our review of a written instrument:
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. [Citation omitted.] Whether an ambiguity exists in a written instrument is a question of law to be decided by the court. [Citation omitted.]” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
Farmers essentially claims the plain language of this policy excludes coverage for the damage sought to be recovered by the Catholic Diocese in its action against Allan and Brenda. The coverage portion for personal liability in the policy states: “We shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damage covered by this policy.”
The above provision, however, is limited by the following exclusionary provision: “We do not cover bodily injury or property damage . . . caused intentionally by or at the direction of an insured . . . .” Our initial reading of this exclusion seems to indicate the property damage for which Allan and Brenda are liable is not covered because it was intended by Anthony, an insured under the policy.
We are guided by well-settled law in deciding if language contained in an insurance policy is ambiguous:
“To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. [Citation omitted.]
“The language of a policy of insurance, like any other contract, must if possible, be construed in such manner as to give effect to the intentipn of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares' its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. [Citation omitted.]” Patrons, 240 Kan. at 713.
The Catholic Dipcese seeks a favorable interpretation of‘ the policy language “an insured” by contending “an insured” should be equated with “the insured” so that the exclusion from coverage will not operate against Allan and Brenda. By attaching this meaning to “an insured,” this language would not refer to Anthony, an insured under the policy who intentionally caused the property damage, but to his parents, the insureds seeking policy coverage. Therefore, because Allan and Brenda did not intentionally cause .the damage, their claim would be covered.
However, cases interpreting “an insured” or similar language in similar policy exclusion provisions have concluded the contrary. “An insured” or “any insured” refers to any and all insureds under the policy, not just “the insured” seeking coverage under the policy. See Travelers Ins. Co. v. Blanchard, 431 So. 2d 913, 914-15 (La. App. 1983) (“an insured person” clearly and unambiguously refers to all policy insureds, not just particular insured sought to be held liable); Allstate Ins. v. Freeman, 432 Mich. 656, 694-95, 699, 443 N.W.2d 734 (1989) (provision excluding coverage for intentional or criminal acts of “an insured person” unambiguously excludes coverage for damages intentionally caused by any insured under the policy); Farmers Insurance v. Hembree, 54 Wash. App. 195, 200, 773 P.2d 105 (1989) (“an insured” includes anyone insured under the policy).
The Catholic Diocese, however, contends the presence in the policy of the following language known as a severability of interests clause makes the exclusionary provision ambiguous: “This insurance applies separately to each insured. This condition does not increase our limit of liability for any one occurrence. ” Blan chard, 431 So. 2d 913, and Hembree, 54 Wash. App. 195, do not consider severability of interests clauses.
While the Michigan Supreme Court in Freeman, 432 Mich. 656, did not consider any severability of interest clause in the insurance policy under consideration in that case, the court did consider the insured’s argument that the insurer had “a separate and distinct duty to cover each insured under the policy,” the virtual equivalent of a severability clause. 432 Mich, at 690. In Freeman, Alonda Freeman shot Kelly in the shoulder. Kelly eventually filed a tort suit in which she essentially alleged Marshall Freeman, Alonda’s husband, negligently entrusted a firearm to Alonda. The trial court granted Marshall’s insurer, Allstate, summary judgment in a declaratory judgment action, concluding Allstate had no duty to defend Marshall in the tort suit. 432 Mich, at 682-84. .
The homeowner’s policy under which Marshall sought coverage for the claim against him contained a provision excluding from coverage “’bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended, by an insured person.’ ” 432 Mich, at 685. The Freeman court concluded that under such exclusion, Allstate had no duty to defend or indemnify Alonda. 432 Mich, at 689.
Marshall raised two arguments in support of his contention that Allstate had a duty to defend him in the tort suit. As discussed earlier, the Michigan Supreme Court rejected his argument that “an insured” was ambiguous. See 432 Mich, at 699. Marshall additionally argued that Allstate had a separate duty to cover him under the policy. The court, however, found that any duty of Allstate to defend Marshall was solely derivative of its duty to defend Alonda under the policy. 432 Mich, at 690. The court agreed the exclusion focused on “bodily injury” and that Alonda’s conduct precluded Marshall’s claim for coverage under the policy. 432 Mich, at 692.
In support of its holding, the Freeman court cited and discussed two. cases where the insureds had sought coverage for claims of negligent entrustment of a vehicle brought against them. These cases denied coverage because the negligent entrustment theory is derived from the ownership, use, or operation of a vehicle. Claims based on vehicle ownership, use, or operation were in some way excluded from coverage by the homeowner’s policies at issue in the cases. Because claims against the insureds actually using the vehicles were not covered, claims for negligent entrustment of the vehicles were not covered. 432 Mich, at 690-92. The Freeman court stated “ ‘we look to the underlying cause of the injury to determine coverage and not to the specific theory of liability.’ ” 432 Mich. at 690.
Thus; while not actually considering the effect of a severability of interests clause on a provision excluding from coverage intentional acts by an insured, Freeman, did consider and reject an argument that is virtually the same as a severability clause: that the insurer had a separate duty to cover each insured under the policy. The Freeman court based its rejection of the contention that such a duty makes ambiguous an intentional acts exclusion on cases denying coverage under a homeowners policy for negligent entrustment. However, Kansas lacks a similar basis in our case law,- as Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), extended coverage under a'homeowners policy to a claim for negligent entrustment of a vehicle.
In Noel, the homeowners policy covered damages for bodily injury and property damage, but excluded from coverage “ ‘ “the ownership, maintenance, operation, use, loading and unloading of (1) automobiles or midget automobiles while away from the premises or the ways immediately adjoining . . . ” 214 Kan. at 147.
In finding coverage for a claim of negligent entrustment of a vehicle, the Kansas Supreme Court stated:
“We hold that the trial court correctly decided all of the issues of law submitted to it. Upland Mutual was obligated under its homeowner’s policy to . defend the Noels against the Forresters’ action. It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms. [Citation omitted.] In the homeowner’s policy involved in this case the company agreed with the named insured to pay on behalf of the insured all sums which the insured should become legally liable to pay because of bodily injury and property damages. There is nothing in this broad insuring clause which restricts coverage to accidents or injuries occurring on the premises of the homeowner. In fact it is clear that the insuring clause covers a wide variety of accidents which might occur off the premises. Any escape from liability by Upland Mutual under its policy must be found in the special exclusion which has been set forth in full above. We have held that where an insurer attempts to avoid liability under an insurance policy on the ground that the loss for which recovery is sought is covered by some exclusionary clause, the burden is on the insurer to prove the facts which bring the case within the specified exception. [Citation omitted.]
“In this case the action filed by the Forresters against the Noels was not based upon the ‘ownership, maintenance, operation, use, loading or unloading of . . . automobiles’, even though the immediate cause of injury and death was Steven’s operation of the automobile. The basis of the Forresters’ action was the alleged negligence of the Noels in knowingly entrusting an automobile to a careless and reckless driver. The theory of liability upon which the petition was framed is well-recognized in Kansas. [Citations omitted.]
“Nowhere is it alleged in the Forresters’ petition that the Noels are liable on the theory that they owned, maintained, operated or used the automobile or that the automobile was negligently driven by the Noels or their, agent. The theory of the Forresters’ damage action is not directly related to the ‘ownership, maintenance, operation, use’ of the vehicle.” 214 Kan. at. 149-50.
The court later stated, “The rationale of the ‘negligent entrustment’ cases is not founded upon the negligence of the driver of the automobile but upon the primary negligence of'the entruster in supplying the chattel, an automobile, to an incompetent and reckless driver.” 214 Kan. at 151.
We believe that, unlike Michigan, Kánsas does not look to the underlying cause of the injury to determine coverage, but to the specific theory of liability alleged. The basis upon which the Freeman court rested its holding that an insurers separate duty to cover each policy insured does not make ambiguous an exclusion for an insured’s intentional acts is not present in Kansas law.
Our Supreme Court considered the impact of a severability of interests clause on a policy exclusion in Rose Constr. Co. v. Gravatt, 231 Kan. 196, 642 P.2d 569 (1982). In that garnishment proceeding against an insurer, the insurer denied a claim for coverage based on an exclusion: “ ‘[T]o damage to (a) property owned or transported by the insured, (b) property rented to or in charge of the insured other than a residence or a private garage, or (c) property as to which the insured is for any purpose exercising physical control.’ ” 231 Kan. at 197. The court stated Gravatt, the insured for whom coverage was sought, neither rented, was in charge of, nor controlled the damaged property and then considered the impact of a severability of interests clause on the exclusion. 231 Kan. at 197.
The court resolved the issue of whether the claim against Gravatt was covered by the policy as follows:
“The exclusion before us excludes damages to property ‘rented to or in charge of the insured.’ Use of the term ‘the insured’ is significant. It obviously is not the same as ‘named insured’ or ‘any insured.’ Even in the absence of a severability of interests clause, a strong argument could be made that the exclusions do not apply to Gravatt inasmuch as he is the insured for exclusionary purposes, and he neither rents, has charge of, nor controls the damaged,property. The severability of interests clause can only buttress the argument that coverage as to each insured must be determined separately based on the facts applicable to each such insured.
“We conclude that the severability of interests clause requires a finding that the exclusions are to be applied only against the insured for whom coverage is sought. Under the undisputed facts herein, defendant Gravatt was clearly not excluded from coverage, and the trial court erred in holding otherwise.” 231 Kan. at 198.
In light of Noel, which looked to the theory of liability in determining policy coverage, and Rose Constr. Co., which expressly held a severability clause requires that policy exclusions are to be applied only against the insured for whom coverage is sought, we believe the exclusion in this homeowner’s policy should not be construed to deny coverage for Allan and Brenda’s liability for negligently supervising their minor child Anthony. Farmers’ insertion into the policy of a severability of interests clause makes ambiguous the otherwise unambiguous language of the exclusion for intentional acts by an insured. “It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Noel, 214 Kan. at 149.
The Wisconsin Court of Appeals in Northwestern Nat. Ins. Co. v. Nemetz, 135 Wis. 2d 245, 400 N.W.2d 33 (Wis. App. 1986), concluded that a severability of interests clause makes ambiguous an exclusion similar to the exclusion at issue here. The Wisconsin court reasoned:
“Here, . . . we face an insurance contract with a severability clause purporting to separate the insureds’ interests while the exclusion clause, ‘we do not cover . . . damage . . . expected or intended by an insured,’ attempts to join the insureds’ obligations. We conclude that this contract is ambiguous because the severability clause creates a reasonable expectation that each insured’s interests are' separately covered, while the exclusion clause attempts to exclude coverage for both caused by the act of only one. Thus, we must construe the policy against Auto-Owners. We cannot release an insurer from a risk that may have been excluded through more careful contract drafting. [Citation omitted.]
“Additionally, Auto-Owners argues that affording coverage to Hazel renders the exclusion clause superfluous. We agree that if other things are equal, we must construe a policy to give reasonable effect to every clause. [Citation omitted.] However, this rule does not compel us to give full effect to an ambiguous clause. Moreover, our construction does not render the exclusion superfluous. Under the clause, the policy still affords no liability coverage to any insured who intends or expects damage.” 135 Wis. 2d at 256-57.
One case cited by Farmers in support of its position is Chacon v. American Family Mut. Ins. Co., 788 P.2d 748 (Colo. 1990). In Chacon, the Colorado Supreme Court did reject arguments that a severability of interests clause made ambiguous an exclusion for bodily injury or property damage “’intended by any insured. ’ ” 788 P.2d at 750, 752. In reaching its decision, the court discussed cases which concentrated on the meaning of the language “any insured” as opposed to “the insured.” 788 P.2d at 751. Although it acknowledged decisions finding exclusions from coverage ambiguous because of severability clauses, the Chacon court found the decisions denying coverage more persuasivé because each decision “considers and gives effect to all the policy provisions and recognizes that an insurance policy is a contract between the parties which should be enforced in a manner consistent with the intentions expressed therein.” 788 P.2d at 752. When considering our Supreme Court decisions in Noel, 214 Kan. 145, and Rose Constr. Co., 231 Kan. 196, Chacon and the reasoning on which it relies are not persuasive.
We reverse the award of summary judgment to Farmers in this garnishment action and remand the cause with instructions to enter summary judgment for the Catholic Diocese. | [
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Davis, J.:
This is an appeal by the guardian ad litem from the trial court’s dispositional order placing custody of D.A.H. with the natural father. The guardian ad litem attempted to present evidence at the disposition hearing concerning placement of the child but the court would not allow him to do so. We reverse and remand for further proceedings.
The child in need of care proceeding was initiated by petition alleging that while in the custody of his natural mother, D.A.H. was a child in need of care. The reasons set forth in the petition alleged that D.A.H. was physically, sexually, mentally, or emotionally abused and neglected. A protective custody order was entered, giving temporary custody of D.A.H. to the maternal grandparents. Robert Wilson was appointed as guardian ad litem after the original guardian ad litem was excused. The natural father requested that he be given custody.
After D.A.H. was adjudicated a child in need of care and upon a hearing with all interested parties and persons appearing to determine what disposition to make for the child, the court asked all counsel if they had anything to say. The guardian ad litem said that counsel had not agreed on disposition and he was prepared on behalf of the child to present evidence in support of the child’s continued placement with the maternal grandparents. According to the guardian ad litem, this was the child’s preference and such a placement was in the best interests of the child because there were problems with the father’s second wife regarding anger. According to the guardian ad litem, D.A.H.’s stepmother had to be physically restrained on one occasion because of her anger and it was possible that a repeat of this might adversely affect D.A.H.
Counsel for the father responded that his wife had been through counseling and was continuing with local counseling. The father was comfortable with his wife’s progress and said she was prepared to go to counseling with D.A.H. The natural mother’s attorney expressed the mother’s desire that D.A.H. remain with her but that if the court did not agree, that she would prefer that the child be with his father.
The court placed the child with his father, with reasonable visitation rights for all others, and asked the father to leave D.A.H. with the maternal grandparents for two months to allow a smoother transition. The court explained that it understood the position of the guardian ad litem but could not give permanent custody to the grandparents without a showing of parental unfitness.
The guardian ad litem offered to present witnesses to show parental unfitness. The court then advised that another motion would have to be filed before evidence of the father’s unfitness could be received. In further response to the guardian ad litem’s request to present evidence, the court stated it was not proper evidence for disposition and the court did not need to hear any allegations at that time.
The guardian ad litem then asked for an order that counseling reports regarding the status of the stepmother be made available. The court refused, saying it had no jurisdiction to make such an order.
After a child has been adjudged a child in need of care, K.S.A. 38-1562(a) provides that prior to disposition, any interested parties and persons required to be notified of the dispositional hearing shall be allowed to be heard as to their proposals for appropriate disposition of the case. K.S.A. 38-1562(c) provides:
“Prior to entering an order of disposition, the court shall give consideration to the child’s physical, mental and emotional condition; the child’s need for assistance; the manner in which the parent participated in the abuse, neglect or abandonment of the child; and the evidence received at the dispositional hearing.” (Emphasis added.)
K.S.A. 1990 Supp. 38-1563(a) further provides that “[a]fter consideration of any evidence offered relating to disposition, the court may retain jurisdiction and place the child in the custody of the child’s parent subject to terms and conditions which the court prescribes to assure the proper care and protection of the child.” (Emphasis added.)
K.S.A. 38-1505(a) requires the court to appoint an attorney for the child who is the subject of the child in need of care proceedings: “The guardian ad litem shall make an independent investigation of the facts upon which the petition is based and shall appear for and represent the child.” The guardian ad litem attempted to present evidence bearing upon what he considered the best interests of the child. His evidence suggested a different disposition than ordered by the court for the reason, as expressed by the guardian, that placement of the child with the father may not be in the best interests of the child because of the stepmother’s problem with controlling her anger.
The refusal of the trial court to allow the guardian ad litem to present evidence at the dispositional hearing concerning the placement of the child was reversible error. We can think of no instance where the presentation of evidence by a guardian ad litem on behalf of the best interests of a child in a dispositional hearing may be excluded by the court.
K.S.A. 1990 Supp. 38-1563(d) provides:
“If the court finds that placing the child in the custody of a parent will not assure protection from physical, mental or emotional abuse or neglect or sexual abuse or will not be in the best interests of the child, the court shall enter an order awarding custody of the child, until the further order of the court, to one of the following:
“(1) A relative of the child or a person with whom the child has close emotional ties; . . .
“In making such a custody order, the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting custody to a relative of the child and second to granting custody of the child to a person with whom the child has close emotional ties.
“If the court has awarded legal custody based on the finding specified by this subsection, the legal custodian shall not return the child to the home of that parent without the written consent of the court. ”
The trial court’s statement that it could not place. the child with the grandparent unless it made a finding of unfitness on the part of the father was error. Other statements made by the court concerning evidence which may be presented at a dispositional hearing are also in error.
The disposition of the case after an adjudication of child in need of care has been made is extremely important. The code grants a court many alternatives in dealing with the best interests of the child after the child has been adjudicated a child in need of care. It might be said that the legislature has taken an enlightened view of child welfare in the dispositional portion of the code for care of children as well as in the adoption of the entire code. The refusal of the court to hear evidence from the child’s attorney upon disposition in many respects ignores the best interests of the child. The very purpose of the dispositional hearing is to acquaint the court with all the available alternatives.
Reversed and remanded for a new dispositional hearing. | [
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Brazil, J.:
Michael W. Ramsey appeals the sentences imposed after he pled guilty in two separate cases. In the first case, Ramsey pled guilty to one class E felony count of giving a worthless check and two class A misdemeanor counts of giving a worthless check. K.S.A. 21-3707. The minimum sentence for the felony conviction would have been a prison term of one to two years. K.S.A. 21-4501(e). Imposition of sentence was suspended as authorized in K.S.A. 21-4603.
Approximately six months later, Ramsey pled guilty to the class E felony of defrauding an innkeeper. K.S.A. 36-206. On this conviction, Ramsey was sentenced to the statutory minimum term of one to two years in prison. The trial judge later found that Ramsey had violated the conditions of his suspended sentence in the previous case and imposed a sentence of one to two years on the felony count together with sentences of one year on each of the misdemeanor counts. All three sentences in the first case were to run concurrent with one another, but the sentences in the first and second cases were to run consecutive to each other, yielding a controlling term of two to four years. K.S.A. 21-4608(3) required the trial judge to make the sentences in the two cases consecutive since the crime that precipitated the second conviction occurred while Ramsey was under a suspended sentence. State v. Ashley, 236 Kan. 551, 693 P.2d 1168 (1985).
As a threshold issue, the State contends that this court does not have jurisdiction to hear Ramsey’s appeal since he is appealing the imposition of a minimum sentence after a guilty plea. While conceding that he received a minimum sentence in each of the two felony counts and that the consecutive sentences were mandated, Ramsey argues that the trial court still had the discretion and authority (1) to place Ramsey on probation in either one or both of the cases; (2) to suspend, despite the violation of the terms of the suspended sentence in the first case, the imposition of sentence in either one or both of the cases; or (3) to place him in a community corrections program in either one or both of the cases.
This court addressed this issue in the recent case of State v. Bruner, 15 Kan. App. 2d 369, 808 P.2d 440 (1991), where it was held that a defendant may appeal the failure of a court to consider the sentencing factors set forth in K.S.A. 21-4606 even if that sentence is a minimum sentence following a guilty plea. In the present case, the majority rejects the holding in Bruner for the reasons stated in my dissent in State v. Salinas, 15 Kan. App. 2d 578, 581-82, 811 P.2d 525 (1991):
"The majority [in Salinas] concludes that this court has jurisdiction to hear this appeal from a minimum sentence following a guilty plea. It characterizes the appeal as being one from the manner of imposition of Salinas’ sentence as opposed to an appeal from a denial of probation, relying on State v. Bruner, 15 Kan. App. 2d 369, 808 P.2d 440 (1991). The Bruner opinion contains a very fine review of Kansas cases dealing with the issue of a defendant’s right to appeal following a guilty or nolo contendere plea. A similar analysis need not be repeated here except to point out my disagreement with the conclusions reached in Bruner.
“Although Bruner relied on State v. Bennett, 240 Kan. 575, 731 P.2d 284 (1987), which involved an appeal from a minimum sentence, the court in Bennett relied upon State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), which involved an appeal from a sentence that exceeded the minimum. It is not clear from the opinion whether the Bennett court considered' that difference in the sentence in Harrold or whether that difference was argued to the court; for the reasons stated below, the holding in Bennett constitutes an anomaly.
“The Bruner case recognizes that the decision of ‘whether to grant probation is exclusively a function of the trial court pursuant to K.S.A. 1990 Supp. 21-4603 and, as a general rule, a decision denying probation is not subject to appellate review. State v. VanReed, 245 Kan. 213, 215, 777 P.2d 794 (1989).’ State v. Bruner, 15 Kan. App. 2d 369, 370. Bruner further recognizes that K.S.A. 22-3602(a) precludes a direct appeal of a denial of probation following a plea of guilty or nolo contendere. 15 Kan. App. 2d at 370.”
We emphasize that K.S.A. 22-3602(a) makes a denial of probation after a guilty or nolo contendere plea unreviewable. When a trial judge imposes the minimum sentence allowed by law, he or she is denying probation or one of the other authorized dispositions under K.S.A. 1990 Supp. 21-4603(2)(b) through (i). We hold that the imposition of a minimum sentence is unreviewable when it follows a plea of guilty or nolo contendere.
The reasons for refusing appellate review of decisions denying probation were clearly stated in State v. Benson, 207 Kan. 453, 458, 485 P.2d 1266 (1971);
“Although the probation statute in effect when appellant was sentenced (K.S.A. 62-2239, now K.S.A. 1970 Supp. 21-4603) does not contain the specific statutory provision to limit appellate review of an order granting or denying probation, we adhere to our prior position.
“The granting and revocation of probation is a matter entrusted by the legislature to the trial court and should remain there. An appellate court has no personal contact with an applicant for probation and is in no position to evaluate and determine the necessary factors upon which any probation should be based. Probation is a continuing relationship requiring constant supervision. This an appellate court cannot provide.
“The granting of probation is exclusively a function of the trial court and we hold a decision of the trial court denying probation is not subject to review by an appellate court.”
In State v. Adams, 218 Kan. 495, 504-05, 545 P.2d 1134 (1976), the Supreme Court applied the same reasoning in declining review of a trial court’s refusal to suspend a portion of defendant’s sentence. Although we are aware of no reported cases in Kansas in which our appellate courts have been asked to review a trial court’s refusal to assign a defendant to community corrections, we can think of no reason why the reasons stated in Benson would not apply to that issue or any of the other authorized dispositions enumerated in K.S.A. 1990 Supp. 21-4603(2)(b) through (i).
In Salinas, I stated in my dissent:
"Bruner also recognizes that, since a trial court has no power to impose a sentence below the minimum, an appeal from a minimum sentence would seem to actually be an appeal from a denial of probation. Notwithstanding this apparent conclusion, the court in Bruner goes on to conclude that a trial court’s discretion should be subject to appellate review even absent any allegations of partiality, prejudice, or corrupt motive. ‘Allowing appeals from even a minimum sentence will insure that criminal sentences are imposed in accord with K.S.A. 21-4606(2).’ State v. Bruner, 15 Kan. App. 2d at 372.” 15 Kan. App. 2d at 582.
K.S.A. 21-4606 is entitled “Criteria for fixing minimum terms,” and subsection 2 provides in part: “The following factors . . . shall be considered by the court in fixing the minimum term of imprisonment.” (Emphasis added.) We note that the legislature has not mandated that trial courts consider the 21-4606 factors when considering probation or the other authorized dispositions in K.S.A. 1990 Supp. 21-4603(2).
Bruner does not explain how failure to consider the factors in 21-4606(2) before imposing a minimum sentence would prejudice a defendant. Once the court decides to impose sentence, the only discretion it has is to fix a term within the minimum and maximum range imposed by statute. The court has no discretion to impose a sentence that is either below the minimum or above the maximum limits. Unless the sentence exceeds the statutory minimum, there is no basis upon which a defendant can allege abuse of discretion. From the defendant’s standpoint, the court has not exercised its discretion until it imposes something more than the minimum.
Our court has previously recognized that a record of factors considered by the court is less important when a minimum sentence has been imposed. State v. Brewer, 11 Kan. App. 2d 655, 665, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
“Likewise, our Supreme Court apparently believes that abuse of discretion issues only arise when sentences exceed the minimum. In State v. Meyers, 245 Kan. 471, 479, 781 P.2d 700 (1989), the defendant was challenging his sentence in part because the trial court had not considered the 21-4606 sentencing factors on the record. The court stated:
‘The minimum term Meyers could have received for second-degree murder was 5-20 years. K.S.A. 21-4501(b). Since the sentence imposed exceeded the statutory minimum, the better practice would have been for the trial court to have made a detailed record of the factors it considered. Since it did not, the question is whether there was an abuse of discretion.’
The obvious implication of the Supreme Court’s statement is that, if a minimum sentence had been imposed, a record of the sentencing factors would not be necessary since abuse of discretion would not be an issue.” State v. Salinas, 15 Kan. App. 2d at 582 (Brazil, J., dissenting).
We reject the holding in Bruner and conclude that, absent allegations of partiality, prejudice, or corrupt motive, this court has no jurisdiction to consider appeals from minimum sentences imposed following a plea of guilty or nolo contendere.
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Conklin, J.:
Robert Sullivan, Howard Bodney, and Charles Hammond incorporated Sullivan, Bodney and Hammond, P.C. (SBH), under the laws of the State of Missouri on May 1, 1980. By May 1985, the office was in a state of discord. Sullivan notified Hammond and Bodney that he wished to terminate SBH. On June 8, 1985, in a “hostile” meeting, the three principals met to discuss winding up SBH. At this meeting, the three principals fixed July 31, 1985, as the date they would cease the practice of law as SBH. The matter of cases and contingent fees was discussed; however, a formal agreement was not reduced to writing.
This lawsuit and appeal therefrom stem from the disagreement as to the disposition of contingent fees. A case being handled on behalf of Fonda Fleming is at the heart of the matter. An action on Fleming’s behalf was commenced by SBH prior to July 31, 1985. It was later settled by Bodney. Bodney’s fee amounted to $250,000. He did not account to SBH for any of the fee proceeds; instead, he kept the entire proceeds for his personal use.
Subsequently, Sullivan and Hammond voted themselves additional monies at a directors’ meeting on February 15, 1986, as follows: $6,000 and $2,500, respectively, for unused vacation time; $1,500 each for liquidating the firm’s assets; and $1,400 each for their administrative services in collecting SBH accounts receivable. Bodney voted against these three payments. SBH had never paid an attorney for unused vacation time previously and had no policy pertaining to unused vacation. At a March 10, 1986, speóial directors’ meeting, Sullivan and Hammond voted to hire counsel to sue Bodney for the contingent fee he had collected.
SBH, Sullivan, and Hammond appeal the order of the district court awarding distribution of firm contingent fees on a quantum meruit basis; denying payment for unused vacation time; and denying the plaintiffs attorney fees for the cost of bringing this action.
Our review of findings of fact is limited. If the trial court’s findings of fact are supported by substantial competent evidence, they will not be disturbed. Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989). Further, “[t]rial court determinations of fact, unappealed from, are final and conclusive.” Palmer v. State, 10 Kan. App. 2d 656, 657, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985). However, “[t]his court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
No appeal has been taken from the trial court’s disapproval of distributions of $1,500 to Sullivan and Hammond “awarded” for liquidating the firm’s assets. Also, there is no appeal from the trial court’s disapproval of distributions to Sullivan and Hammond “awarded” for administrative services in collecting the firm’s accounts receivable. Therefore, those matters are final and conclusive and will not be disturbed on appeal. Palmer v. State, 10 Kan. App. 2d at 657.
The trial court held that Sullivan, Hammond, and Bodney failed to reach an agreement as to the disposition of the contingent fees on cases commenced by SBH before July 31, 1985,' but which had not been settled or reduced to judgment until after that date. Because no meeting of the minds had occurred in this regard, the trial court proceeded in equity. The court cited the propo sition that an attorney who is discharged without cause is entitled to compensation in quantum meruit. The court thus determined that the SBH members were entitled to reasonable compensation for the hours spent on these cases and, if the outcome was positive, the SBH members were entitled to participate in the ultimate award. The trial judge went to great lengths to compute a fair division of the uncollected fees as of July 31, 1985. His effort to achieve an equitable result was commendable. However, this is an issue of first impression in this court and the weight of authority dictates that this portion of the trial court’s decision must be reversed.
Jewel v. Boxer, 156 Cal. App. 3d 171, 174, 203 Cal. Rptr. 13 (1984), is a seminal case holding:
“[I]n the absence of a partnership agreement, the Uniform Partnership Act requires that attorneys’ fees received on cases in progress upon dissolution of a law partnership are to be shared by the former partners according to their right to fees in the former partnership, regardless of which former partner provides legal services in the case after the dissolution.”
Jewel involved a law partnership and was largely based upon the Uniform Partnership Act (UPA). However, the Jewel court also enunciated valid policy reasons justifying the decision. The rule negates any incentive to compete for the big cases while the partnership is a going concern so as to retain these cases in the event of dissolution. In conjunction with the former, it encourages ethical conduct because it negates any incentive to take physical possession of remunerative cases in anticipation of retaining them upon dissolution. Further, had the partnership not dissolved, the attorney who completed the case would only have been entitled to his right to share in the fee according to the partnership agreement. Jewel, 156 Cal. App. at 179. See Beckman v. Farmer, 579 A.2d 618, 636 (D.C. 1990) (pending cases are uncompleted transactions and assets of the partnership subject to post-dissolution distribution). See also Messina v. Calandro, 214 Conn. 596, 600-01, 572 A. 2d 1012 (1990) (profits from a real estate partnérship are assets of the dissolved partnership to be distributed according to the partnership agreement); Welsh v. Carroll, 378 So. 2d 1255, 1257 (Fla. Dist. App. 1979), cert. denied 386 So. 2d 643 (1980) (fees are to be divided by employment contract, as court found it not affected by dissolution); Ellerby v. Spiezer, 138 Ill. App. 3d 77, 81-82, 485 N.E.2d 413 (1985) (fees from contingent fee cases are assets of the partnership to be divided in accordance with the UPA); Marr v. Langhoff, 322 Md. 657, 668-69, 589 A. 2d 470 (1991) (“Work in progress at the time of dissolution is an asset of the dissolved firm and the partners have an obligation to complete the work in progress. The compensation of the partners for completing work in progress during the winding up of the dissolved partnership is determined, absent special agreement, by the partners’ interest in the profits of the dissolved partnership.”); Resnick v. Kaplan, 49 Md. App. 499, 507, 434 A.2d 582 (1981) (rejecting quantum meruit payment to dissolved partnership, as fees are properly assets of the partnership to be divided per the partnership agreement); Meehan v. Shaughnessy; Cohen, 404 Mass. 419, 430, 535 N.E.2d 1255 (1989) (winding up business is for benefit of the dissolved firm); Thomas v. Marvin E. Jewell & Co., 232 Neb. 261, 268, 440 N.W.2d 437 (1989) (partnership agreement in effect at dissolution controls division of profit/loss).
Fox v. Abrams, 163 Cal. App. 3d 610, 210 Cal. Rptr. 260 (1985), applied the law partnership rationale in Jewel to a law corporation. The Fox court cited the Jewel case as “the proper way to resolve the instant dispute,” 163 Cal. App. 3d at 613, and “therefore the fact that a law corporation is involved is no reason to disregard the fair and reasonable principles of Jewel.” 163 Cal. App. 3d at 617.
Bodney’s argument that the principles of Jewel, Fox, and their progeny are inapplicable because the law corporation was not dissolved pursuant to Missouri law is without merit. Findings of fact made by the trial court in its memorandum included these: Sullivan’s memorandum dated April 28, 1985, expected a liquidation by May 1985; the memorandum dated June 4, 1985, reiterated Sullivan’s demand to dissolve as soon as possible; Sullivan, Hammond, and Bodney agreed to continue the operation of SBH until July 31, 1985; the business personalty would be sold and the proceeds used to retire outstanding indebtedness; and SBH abandoned its practice of law and closed its doors on July 31, 1985. The case of Champion v. Superior Court, 201 Cal. App. 3d 777, 247 Cal. Rptr. 624 (1988), cited by Bodney, is clearly distinguishable as the parties in that case did not intend to dissolve. In contrast, the parties in this case clearly intended to dissolve as found by the trial court. Although the formal requirements had not been complied with, the actions of Sullivan, Hammond, and Bodney constituted a de facto dissolution.
Jewel and Fox are persuasive authority and establish a trend by courts in dealing with the issue before us. The fact that SBH was not formally dissolved pursuant to statute is not relevant. Therefore, the contingent fee cases commenced by SBH before July 31, 1985, were assets of SBH and properly payable to it. Sullivan, Hammond, and Bodney were then entitled to receive payment according to their interests in the firm as of July 31, 1985.
Plaintiffs argue that SBH should be entitled to recoup attorney fees in pursuing this litigation. Our Supreme Court has addressed this issue in Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978). The facts are nearly indistinguishable. In Newton, one of three stockholders brought a partial derivative suit against the other two stockholders. “His action was not one predicated to benefit a large group of other individuals at plaintiffs expense as is frequently true in a stockholders’ derivative action.” 224 Kan. at 526. Here, Sullivan and Hammond were suing the only other shareholder, Bodney. Only Sullivan and Hammond stand to benefit. Therefore, the trial court was correct in denying attorney fees to SBH, and that portion of the judgment is affirmed.
Plaintiffs argue that the trial court erred in denying payment to Sullivan and Hammond for accrued unused vacation time. The trial court’s findings of fact clearly support its conclusion that the plaintiffs were not entitled to payment for unused vacation. Both Sullivan and Hammond testified that SBH had not in the past paid for unused vacation and had no policy relating to unused vacation. Findings of fact supported by substantial competent evidence will not be disturbed on appeal. Palmer v. State, 10 Kan. App. 2d at 657. The trial court’s decision denying payment for unused vacation is affirmed.
The trial court decision is affirmed with regard to the issue of attorney fees and vacation pay. The decision of the trial court in ordering distribution of contingent fee proceeds to Sullivan, Bod ney, and Hammond on a quantum meruit basis is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. | [
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PlERRON, J.:
Rafael Barraza-Flores appeals the Finney County District Court’s imposition of maximum consecutive sentences after he pleaded guilty to charges of theft (K.S.A. 21-3701) and conspiracy to commit theft (K.S.A. 21-3302; K.S.A. 21-3701), both class E felonies.
On October 26, 1989, undercover investigator Michael D. Utz received a tip from a confidential source that a couple staying in the Continental Inn Motel in Garden City had stolen hats and coats for sale. Utz had his source tell the couple, later identified as Rafael Barraza-Flores and Frances Krejci, that Utz was interested in buying and would call. Utz then obtained a search warrant for the motel room and called the couple to arrange a purchase. During the phone conversation, Krejci described the goods as being stolen from Crazy House, a western wear store in Garden City. Utz went to the couple’s motel room and purchased a leather bomber-style coat and Stetson hat for $180. After the sale was complete, Utz told the couple he would like to buy some, more coats; the couple said they would steal more. Immediately thereafter, police entered the room, arrested BarrazaFlores and Krejci, and searched for other stolen items'. During the search officers found a number of items, including cowboy boots, Hilton Hotel towels and washcloths, and several piecés of identification for the couple listing various names and dates of birth. Barraza-Flores was. charged with theft of property valued at more than $500, conspiracy to. commit theft, obstruction of legal process, and theft of property valued at less than $500.
Barraza-Flores, born in Mexico in October 1947, is an illegal alien and had been deported three., times prior to this incident. He was arrested in 1981 by Wichita police for possession of marijuana, was fined $100, and , spent 60 days in jail. ,In 1983, he was charged with driving under the influence of .alcohol in Wichita; he was fined and granted diversion. In .1984, he was convicted of shoplifting in Goodland,. Kansas,, and fined- BarrazaFlores began living with Krejci in ,1985 and has a daughter as a result of that relationship. He claimed he stole the .clothing be cause he could find no work and needed money to buy food for his family.
A plea bargain was arranged and on January 5, 1990,. BarrazaFlores pleaded guilty to charges of theft of property valued at more than $500 and conspiracy to commit theft. On February 16, 1990, Judge J. Stephen Nyswonger sentenced Barraza-Flores to two terms of one to five years in prison, to be served consecutively. Judge Nyswonger asked counsel if they felt K.S.A. 1990 Supp. 21-4606a, the presumptive probation statute, applied in this case. The State was mute on the issue as part of the plea bargain; counsel for Barraza-Flores argued the statute did apply. The trial judge held the statute was inapplicable and denied probation. On April 19, 1990, Barraza-Flores filed a motion to modify sentence and again sought probation. The motion was denied. Barraza-Flores timely- appeals.
The first issue to consider is whether the district court erred in ruling K.S.A. 1990 Supp. 21-4606a was inapplicable in this case.
Barraza-Flores argues that, by determining K.S.A. 1990 Supp. 21-4606a did not apply in this case, the trial court misinterpreted the law and never exercised its judicial discretion. The State argues the decision to deny or grant probation is left to the trial court’s discretion and in this case the court did not abuse that discretion.
“The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would, agree, appellate courts will not disturb the trial court’s decision.” Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). The standard used in reviewing a trial court’s conclusions of law, however, is qiiité different. “This court’s ’ review of conclusions' of law'is unlimited.” Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). Since the standards' of review differ,' this cburt mil’st first determine what it is being asked tó review: a‘question of law or a discretionary act.
. K.S.A. 1990 Supp. 21-460ba and-K.S.A. 1990-Supp. 21-4606b are central to the questions posed in this Case. K.S-.A. 1990 Supp. 21-4606a states in pertinent'part:
“The presumptive sentence for a person' who has never before been convicted of a felony, but has now been convicted of a class D or E felony . . . shall be probation, unless the conviction is of a crime or of an attempt to commit a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated or in the uniform controlled substances act or the person convicted is a juvenile offender in the custody of the department of social and rehabilitation services. 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. If the presumptive sentence provided by this section is not imposed, the provisions of K.S.A. 1989 Supp. 21-4606b shall apply.”
K.S.A. 1990 Supp. 21-4606b states in part:
“(1) If probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto, the presumptive sentence for a person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.”
When they are applicable, these two statutes require the trial court to apply a two-step analysis: first, whether there is a presumption of probation, which can be rebutted; second, once a probation presumption is rebutted, whether there is a presumption of assignment to community correctional services, which can be rebutted. See State v. Ray, 15 Kan. App. 2d 1, 800 P.2d 148 (1990).
During sentencing in this case, the district court first imposed the maximum sentences for each count and then asked counsel if they thought 21-4606a was applicable. The State declined comment under terms of the plea bargain. Counsel for Barraza-FIores said he believed the statute was applicable, in part because “[t]he defendant has never previously been convicted of any felonies.” The district court then held:
“I’m going to find at this time that K.S.A. 21-4606a is not applicable, and the presumption of probation does not exist; and I state this for the reason that on three prior occasions the defendant has unlawfully entered the United States and been deported from the United States. This shows in this Court’s opinion an absolute disregard for the laws of this country. Furthermore, on the basis that he is not an American citizen and has in fact crossed regularly back and forth across the border between the United States and Mexico. He is not a fit candidate for probation as he may be an absconder. His application for probation is denied.”
In reviewing the district court’s decision, it is clear the court held K.S.A. 1990 Supp. 21-4604a and K.S.A. 1990 Supp. 21-4606b did not apply. Indeed, if the court had believed the statutes were applicable, it would have had to have gone through the two-step analysis discussed above. State v. Ray, 15 Kan. App. 2d 1. It did not; indeed, it never even mentioned the possibility of assignment to community correctional services. We conclude the court held the statute did not apply in this case. The ruling that the statute did not apply is one of law; thus, this court’s review is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d at 674.
To determine whether the two statutes apply in this case, the rules of statutory construction must be followed. “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Further, “criminal statutes must be construed in favor of the person to be subjected to their operation.” State v. Knabe, 243 Kan. 538, 539, 757 P.2d 308 (1988).
K.S.A. 1990 Supp. 21-4606a requires:
“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of . . . [an] E felony . . . shall be probation, unless the conviction is of a crime . . . specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated . . . 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.”
In this case, Barraza-Flores, an adult, was convicted of two E felonies, which are not crimes “specified in article 34, 35, or 36 of chapter 21 of Kansas Statutes Annotated or in the uniform controlled substances act.” K-S.A. 1990 Supp. 21-4606a. The record also showed Barraza-Flores had never been convicted .of any felony prior to those in this case. Further, the record showed he had no juvenile arrest record. These facts provide ample basis to conclude the presumption of probation did apply; nevertheless, it is appropriate to review and analyze the court’s reasons for finding the statutes inapplicable. The court listed several,reasons for its ruling:
1.. “[0]n three prior occasions the defendant has unlawfully entered, the United States and been deported from the United States.”
Barraza-Flores was deported three times, but the record does not indicate he was ever tried and convicted on any charge as a part of those deportation actions. A plain reading of K.S.A. 1990 Supp. 21-4606a shows the statute applies unless the defendant has a prior conviction for a felony. Barraza-Flores has no such conviction; therefore, the district court erred in considering the deportation actions in determining the presumption was inapplicable. -
Further, it should be noted the district court concluded that Barraza-Flores had entered the United States illegally three times. The record, however, shows that, while, Barraza-Flores was :deported three times, only one of those deportation actions, yras for illegal entry into this country. He was deported once for an unspecified immigration violation, and there is no .reason listed for the third deportation proceeding.
2. In the court’s opinion, Barraza-Flores had “an absolute disregard for the laws of this country.” .
A plain reading of the presumptive probation statute shows a defendant’s attitude toward the law has no impact pp. whether there isa presumption of probation., K.S.A. 1990 Supp. ,21-4606a. The court erred in considering it.
At this point, it is important to stress that it is not appropriate or necessary to summarily dismiss the district court’s concerns about Barraza-Flores’ criminal record'and attitudes.' In State v. Knabe, the Supreme Court acknowledged that théré are often concerns about (defendants’ suitability for probation' as shown by their ((criminal histories, but those histories do not .'necessarily determine- whether there is a presumption. See 243 Kan. at 540. In thát'case, the State argued that, '.when a defendants convicted of more' than oiie class E felony, the presümptión (should not apply;;'The State árgued that, -if. it did, it would-be--possible for a defendant facing 40 separate .charges to be entitled to presumptiye probation. 243 Kan. at 540. The Supreme Court responded:
“[I]t is,.important .to note that the presumption in favor of probation under K.S.A." 1987 Supp. 21-4606a may be overcome by the considerations cited in K.S.A. 1987 Supp. 21-4601 and K.S.A. 21-4606. [Citation omitted.] Thus, a trial court faced with a defendant convicted of 40 class E felonies would be able to rebut the presumption in. favor of probation of K.S.A. 1987 Supp. 21-4606a, by a consideration, among other things, of ‘[t]he defendant’s history of prior criminal activity,’ and ‘[t]he extent of the harm caused by the defendant’s criminal conduct.’ K.S.A. 21-4606(2)(a) and (b).
“We interpret K.S.A. 1987 Supp. 21-4606a to require that a person who is convicted of more than one class E felony, but who has not been convicted of a felony prior to the commission of those class E felonies, and who meets the other requirements of the statute, is entitled to a presumption in favor of probation or assignment to a community correctional services program. However, while the presumptive statute applies in such situations, the court may consider the extent of the defendant’s criminal conduct in determining whether the presumption in favor of probation has been overcome." (Emphasis added.) State v. Knabe, 243 Kan. at 540.
In this case, the trial court did not use Barraza-Flores’ record of alleged disrespect of the law to rebut the presumption; rather, it used that record to find the presumption did not apply. In so doing, it erred.
3. Barraza-Flores “is not an American citizen.”
Equal protection under the law is guaranteed to all persons, including illegal aliens. See Plyler v. Doe, 457 U.S. 202, 210-16, 72 L. Ed. 2d 786, 102 S. Ct. 2382, reh. denied 458 U.S. 1131 (1982). Therefore, Barraza-Flores is constitutionally entitled to the protection offered by K.S.A. 1990 Supp. 21-4606a, and any effort to deny that protection based on his citizenship status is constitutionally barred. Plyler, 457 U.S. at 210-16.
4. Barraza-Flores has “crossed regularly back and forth across the border between the United States and Mexico.”
A review of the record shows there is no factual basis to be found for this conclusion. Granted, Barraza-Flores has traveled back and forth between countries. But there is nothing in the record to indicate how often, or even when he entered this country last. Nevertheless, a defendant’s travel habits have nothing to do with whether K.S.A. 1990 Supp. 21-4606a is applicable.
5. Barraza-Flores “may be an absconder.”
A review of the record shows there is little basis for this conclusion as well. Indeed, while Barraza-Flores has clearly violated immigration laws, it has always been to get into this country, not in an effort to leave. He has never been on probation or parole; thus, his propensity to flee under those circumstances has never been tested. Further, a defendant’s propensity for flight is clearly not a factor to be used in determining whether the presumption of probation applies. K.S.A. 1990 Supp. 21-4606a.
It is clear Barraza-Flores was entitled to the presumption of probation guaranteed in K.S.A. 1990 Supp. 21-4606a and that all of the district court’s stated reasons for not applying the statute lack merit.
“[A] person who is convicted of more than one class E felony, but who has not been convicted of a felony prior to the commission of those class E felonies, and who meets the other requirements of the statute, is entitled to a presumption in favor of probation or assignment to a community correctional services program.” State v. Knabe, 243 Kan. at 540.
We, therefore, remand the matter to the trial court for consideration of K.S.A. 1990 Supp. 21-4606a and K.S.A. 1990 Supp. 21-4606b and of whether the presumptions are rebutted under these facts.
The second issue to consider is whether the district court abused its discretion in sentencing Barraza-Flores to two consecutive maximum sentences.
Barraza-Flores argues the district court abused its discretion by sentencing him to serve maximum sentences for each count against him and by ordering him to serve those sentences consecutively. The State argues the district court properly applied sentencing criteria and did not abuse its discretion in sentencing Barraza-Flores.
“[An appellate] court will not, except in special circumstances showing abuse of discretion, set aside a sentence which is within statutory limits.” State v. Webb, 242 Kan. 519, 530, 748 P.2d 875 (1988). As noted in the discussion above, “[t]he test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Hoffman v. Haug, 242 Kan. at 873. Further, the Supreme Court has instructed:
“[I]t is the better practice, when the sentence exceeds the minimum, for the trial-court, on the record, to make a detailed statement of the facts and factors considered by-the court in imposing sentence. However, a trial court’s failure to make such a detailed statement does not necessarily demonstrate an abuse of discretion; each case must be considered on its facts. [Citations omitted.] Also, it is a familiar rule that a sentence which is within the statutory limits will not be disturbed on appeal provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. [Citations omitted.]” State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988).
Barraza-Flores does not allege either partiality or prejudice. Further, the sentences imposed for the class E felonies are within the statutory limits of K.S.A. 21-4501. Thus, abuse of discretion must be proved before this court can alter the sentences imposed. In this case, the district court’s comments on sentencing were brief;
“On count one it will be the sentence of this Court pursuant to K.S.A. 21-3701, 21-4501, 21-4601, 21-4603, 21-4606, 21-4609 that you be sentenced to the custody of the secretary of corrections for a term of not less than one, nor more than five years. [On] count two pursuant to K.S.A. 21-3302, 21-3701, 21-4501, 21-4601, 21-4603, 21-4606, 21-4609 that you be sentenced to a term of not less than one, nor more than five years, said sentence to run consecutively with count one.
“The reason that I’ye ordered that these sentences are to run consecutively is because the evidence reflects and shows that this was not a theft for personal use, but was a theft for personal gain. Not only were the items taken in a shoplifting operation, but they were advertised for sale to others; and it is in the Court’s opinion that the maximum-maximum sentence and the consecutive sentences are appropriate.”
While the district court did not specifically mention any other concerns as it imposed sentence, it did express concern about Barraza-Flores’ criminal past a few moments later as it refused to apply the presumptive probation statute. A defendant’s record of criminal activity is one of the factors listed in K.S.A. 21-4606 as appropriate to consider when imposing sentence. Further, the district court had before it a presentencing report that included Barraza-Flores’ criminal history, a description of his criminal activities, a description of his motivation for committing the crime, and comments from the victim — all of which are sentencing factors listed in K.S.A. 21-4606. Thus, it is reasonable to conclude the district court did consider the factors in K.S.A. 21-4606; therefore, there was no abuse of discretion. Barraza-Flores’ complaint on this point lacks merit.
Barraza-Flores argues the district court abused its discretion in ordering the sentences to be served consecutively because “[t]he mere fact that Mr. Barraza-Flores worked in conjunction with his wife, rather than by himself, to shoplift items to provide for his family’s financial needs does not justify twice as long of a prison sentence.”
K.S.A. 1990 Supp. 21-4608(1) states: “When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, . . . such sentences shall run concurrently or consecutively as the court directs.” “Whether separate sentences imposed on the same day should be concurrent or consecutive is discretionary with the trial court.” State v. Pioletti, 246 Kan. 49, 68, 785 P.2d 963 (1990). Further, “[t]he sentencing criteria in K.S.A. 21-4606 apply to a trial court’s determination of the sentence to. be imposed and the sentence includes whether multiple terms of imprisonment are to be served consecutively or concurrently.” 246 Kan. at 68.
In this case, it is clear the district court considered the factors in K.S.A. 21-4606. The trial court clearly felt that, given BarrazaFlores’ criminal past, the nature of this crime, and Barraza-Flores’ motivation, a maximum sentence was appropriate. While some would find the potential 10-year prison sentence unduly harsh, clearly others would find the trial court acted reasonably. Under these circumstances, the abuse of discretion test has not been met, and it is appropriate for this court to hold the imposition of consecutive sentences in this case was not an abuse of discretion.
At oral argument we were informed that defendant has been deported for a fourth time to Mexico and is not likely to be available for further proceedings. As stated above, on these facts K.S.A. 1990 Supp. 21-4606a would seem to mandate a presumptive sentence of probation. Thus, the court in this case erred in failing to consider presumptive probation and, as a result, imposed an illegal sentence which must be corrected. Under K.S.A. 22-3504, when correcting an illegal sentence “[t]he defendant shall have a right to a hearing, ... to be personally present and to have assistance of counsel. ...”
As was stated in State v. Turbeville, 235 Kan. 993, 1003-1004, 686 P.2d 138 (1984): “Where a sentence is void, the presence of the defendánt is required for the sentencing court to correct the void sentence.”
We are aware that due to this criminal conviction and the defendant’s history he is not likely to receive a visa to enter this country. Neither does it seem probable that extradition from Mexico will be sought by our national government. The factors set out in State v. Fennell, 218 Kan. 170, 177, 542 P.2d 686 (1975), justifying sentencing in absentia, especially the requirement of a waiver of presence by the defendant, are not present here.
Under these peculiar facts, if the defendant is not within the reach of the trial court on remand we believe the only reasonable course would be to issue a warrant for his arrest. If and when Mr. Barraza-Flores is ever detained in Kansas, he can then be properly sentenced — and deported again.
The maximum consecutive sentences are affirmed and the matter is remanded for consideration of K.S.A. 1990 Supp. 21-4606a and K.S.A. 1990 Supp. 21-4606b.
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Rulon, J.:
Shawn Patrick, Curtis Patrick, Barbara Patrick, David Palmer, Nancy J. Palmer, and David Howard Palmer, defendants, appeal a declaratory judgment in favor of Allied Mutual Insurance Company (Allied), plaintiff, in which the district court held that Allied has no duty to provide coverage or duty to defend under an automobile insurance policy issued by it. We affirm.
In November 1989, defendants Palmer filed suit against defendants Patrick alleging that Shawn Patrick sexually molested David Howard Palmer on several occasions. The essential portion of the Palmers’ petition alleged that Shawn Patrick took David Howard Palmer on a shopping trip to Hays, Kansas, and “that while on said shopping trip David Howard Palmer was negligently touched and harmed by Shawn Patrick; that said negligent touching consisted of Shawn Patrick sexually molesting said David Howard Palmer.” The petition further alleged that Curtis and Barbara Patrick knew or should have known of Shawn’s propensity toward sexually molesting boys, and that they were negligent in allowing Shawn to take David on the shopping trip in their car.
This case arose when Allied filed a petition for declaratory judgment against both the Patricks and the Palmers. Allied had issued an automobile policy to the Patricks, and the Patricks demanded that Allied defend and indemnify them in the action filed by the Palmers. Allied sought a determination from the district court that Allied had no duty to defend or indemnify the Patricks.
The district court found that Allied had no duty to defend or indemnify the Patricks because, even assuming that there could be such a thing as a negligent sexual molestation, there was no coverage because the injury did not arise out of “an auto accident.” The court further held: “Whatever else a negligent’sexual molestation may be, it is not in plain, ordinary and popular sense an automobile accident.”
We understand the parties agree that the incident in question took place in an automobile covered by the insurance policy issued by Allied, and that Shawn, Curtis, and Barbara Patrick are all potential insureds under the policy.
The policy contains the following provisions:
“We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident. . . .
“ ‘Insured’ as used in this Part means:
“1. You or any ‘family member’ for the ownership, maintenance or use, including loading and unloading, of any auto or ‘trailer.’
“We do not provide Liability Coverage for any person:
“1. Who intentionally causes ‘bodily injury’ or ‘property damage.’ ”
The district court’s basis for deciding this case was that the injury to David Howard Palmer did not arise from an “automobile accident.” The term “auto accident” is not defined in the policy. There are apparently no Kansas cases which have interpreted this term. The Patricks rely on various Kansas cases which state the general rules of insurance contract construction: Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401 (1974) (the insurer has an affirmative duty to define coverage limitations in clear and explicit terms); Scott v. Keever, 212 Kan. 719, 512 P.2d 346 (1973) (insurance contracts must be considered as a whole); Farm Bureau Mut. Ins. Co. v. Winters, 14 Kan. App. 2d 623, 797 P.2d 885 (1990) (contract terms should be read as a reasonable person in the insured’s position would have understood them); United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978) (coverage clauses in automobile insurance policies are to be interpreted broadly, while exclusionary clauses are to be interpreted narrowly).
This court recently defined “accident” as “an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” Whitaker v. State Farm Mut. Auto. Ins. Co., 13 Kan. App. 2d 279, Syl. ¶ 3, 768 P.2d 320 (1989).
Even if we assume that an accident did occur, the question remains whether it was an “auto” accident. The district court held that the word “auto” modified the word “accident,” and we believe this is a grammatically correct interpretation. Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan. App. 2d 60, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982), is persuasive authority for the proposition that an incident is not an automobile accident merely because it occurs in an automobile. Furthermore, our review of the record on appeal demonstrates no causal connection between Shawn and David’s presence in the automobile and the alleged unfortunate injury to David.
The Palmers rely on Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508 (1952), in which a cab driver assisted a passenger in the rape of a victim. The court found that the incident was covered by a policy which extended to damages “caused by accident and arising out of the ownership, maintenance or use of the automobile.” 78 N.D. at 898. However, only the cab driver was sued in the case and the court found that public policy prohibited indemnification for such intentional conduct. In Commercial Casualty Ins. Co. v. Tri-State Transit Co., 1 So. 2d 221 (Miss. 1941), 133 A.L.R. 1510, similar language was held to cover a situation in which a bus broke down and a passenger contracted pneumonia after being forced to walk in foul weather.
The district court considered both Haser and Tri-State Transit Co. in rendering its decision, but chose to follow two more recent cases which reached a contrary result. In Farmers Insurance v. Grelis, 43 Wash. App. 475, 718 P.2d 812 (1986), the court found that the stabbing of a victim in his automobile was not an injury “caused by an automobile accident.” The Grelis court stated:
“Here, the words ‘automobile accident’ are not ambiguous. It would require a strained interpretation of the words to find an ambiguity. In our judgment, the average person would not consider the stabbing incident in Grelis’s parked van as an ‘automobile accident.’ Rather, we believe the average person would probably say only that Grelis was stabbed while sitting in his automobile.” 43 Wash. App. at 478.
Another case cited by Allied and relied on by the trial judge is Jordan v. United Equitable Life Insurance Company, 486 S.W.2d 664 (Mo. App. 1972), in which a taxi driver was robbed and shot. The policy provided coverage for injuries caused “solely by reason of automobile accident.” 486 S.W.2d at 666. The court found there was no coverage, saying:
“We believe that the exclusionary clause limits the liability of the insurer whenever there is some relationship, nexus or tie between the injury sustained and the vehicle. The automobile must, in some manner, be involved in the accident, and the mere fact that an accident takes place in or near the automobile does not impose responsibility upon the insurer.” 486 S. W.2d at 667.
We believe the better rule, and the one suggested by the Evans court, is that there must be some causal connection between the accident and the automobile allegedly involved. Applying this rule to this case, we conclude that Allied’s policy does not provide coverage for the unfortunate incident described here.
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Davis, J.:
Defendant The Appliance Mart, Incorporated, (Appliance Mart) appeals from an order enjoining its use of the business name “The Appliance and Furniture Mart.” Plaintiff Lawrence M. Harp, d/b/a “The Furniture Mart,” cross-appeals, contending that even though the court properly enjoined the use of the name, it nevertheless erred in denying Harp’s request for relief under the common-law theory of unfair competition. We affirm and remand with directions.
Harp owns and operates a retail home furniture business in Liberal, Kansas, under the name “The Furniture Mart.” He has operated with that name at that location since 1961. The name “The Furniture Mart” is registered to Harp as a service mark under the provisions of K.S.A. 81-114. Furniture Mart’s trade area consists of an area within a 60-mile radius of Liberal, Kansas.
Appliance Mart began operations as a retail appliance and electronics store in Garden City in 1975. Appliance Mart expanded its business and opened another store in Dodge City. Garden City is approximately 60 miles north of Liberal and Dodge City is approximately 80 miles northeast of Liberal.
In 1985, Appliance Mart began selling furniture and changed its name to “The Appliance and Furniture Mart.” In September 1989, Appliance Mart opened a store in Liberal, Kansas, under the name “The Appliance and Furniture Mart.”
Harp filed suit seeking to enjoin Appliance Mart from the continued use of the name “The Appliance and Furniture Mart.” He contended that use of the name “The Appliance and Furniture Mart” was an infringement upon his registered service mark and constituted unfair competition.
The trial court agreed and enjoined Appliance Mart’s use of the name “The Appliance and Furniture Mart” in its Liberal, Kansas, store because its use violated plaintiffs registered service mark under K.S.A. 81-122. The court denied relief under the common-law theory of unfair competition.
Appliance Mart appeals; Harp cross-appeals from the trial court’s denial of relief under the common-law theory of unfair competition. Thus, we examine the question from both the statutory as well as the common-law perspective.
Statutory Perspective
K.S.A. 81-111 et seq. concerning trademarks was enacted in 1951. L. 1951, ch. 525, §§ 1-15. The purpose oft he Act was “to provide for the registration and protection of trademarks and to provide certain remedies.” L. 1951, ch. 525. In 1963, the Act was expanded to include service marks. L. 1963, ch. 510, §§ 1-15. The Act now provides for the registration and protection of trademarks and service marks and provides remedies for the infringement of a registered trademark or service mark. K.S.A. 81-111 et seq.
Appliance Mart argues that the business name “The Furniture Mart” is not protected by statute because the name is merely descriptive of the goods sold by it. It contends that even though K.S.A. 81-112 does not define the term “merely descriptive,’*’ the intent is that generic words such as “furniture” and “mart,” words which merely describe a general class of common things, not be given the protected status of exclusive use; but rather, such ordinary words be left available to all persons for their everyday usage.
We have examined the statute and find that it provides no basis for granting an injunction. Provisions of the Act specifically exclude from protection words which are merely descriptive.
“A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of a mark which, when applied to the goods or services of the applicant, is merely descriptive ... of them.” K.S.A. 81-112(e)(1)...
A person is subject to liability under the Act for infringement of a mark only if the mark is registered under the Act. K.S.A. 81-121(a). The words used in this case, “The Furniture Mart” are merely descriptive and therefore are not entitled to protection under the provisions of Chapter 81.
Kansas law is.patterned after the federal law. The federal law, however, contains a secondary significance protection provision. The federal law provides:
“No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(e) Consists of a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive ... of them.” 15 U.S.C. § 1052(e)(1) (1988).
“(f) Except as expressly excluded in paragraphs (a), (b), (c), and (d) of this section, nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce. The Commissioner may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant’s goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made.” 15 U.S.C. § 1052(f).
When Kansas enacted its law, it chose not to include that portion of the federal law granting protection to a mark that has become distinctive based on continuous use for five years. At the same time, the Kansas Act specifically notes that those remedies available at common law are not affected by the enactment and they remain. “Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at anytime at common law.” K.S.A. 81-123.
The court grounded the injunction upon K.S.A. 81-112(e). Its action may not stand because the words for which protection was granted are merely descriptive and not entitled to protection under Chapter 81. Unless the words are entitled to protection under the common-law doctrine of unfair competition, the decision of the trial court must be reversed. If, however, under the theory of unfair competition the plaintiff is entitled to protection, then the decision of the trial court may be affirmed even though the trial court granted the relief for the wrong reason. Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
Common-Law Perspective
The doctrine of secondary meaning in the law of unfair competition is best described as follows:
“Words or symbols used in connection with one’s goods, services, or business, or the physical attributes of one’s goods, which, for some reason or other, are not capable of exclusive appropriation as a technical trademark, may nevertheless be protected against simulation when they have acquired a secondary meaning, differing from their primary meaning, that is, when they have become associated in the mind of the public as identifying the source or origin of the goods, rather than the goods themselves.” Annot., 150 A.L.R. 1067, 1071-72.
At common law, injunctive relief has been granted under the theory of unfair competition where merely descriptive words are used in the name of the business. This relief is generally granted upon the finding that the words have acquired a secondary significance over a period of time, enabling the party to acquire a proprietary interest subject to protection. The reason for such relief is the unfairness of allowing a competitor to capitalize upon the use of a similar name and, through confusion, entice the public to do business with an entity it believes to be the injured party. See American Fence Co. v. Gestes, 190 Kan. 393, 375 P.2d 775 (1962).
In American Fence Co., the All-American Fence Company was attempting to compete with the American Fence Company in the same general trade area. In granting injunctive relief to American Fence Company, the court noted that the use of the name “All-American Fence Company” in the same trade area was likely to cause confusion, deceive the public, and substantially prejudice the rights of the American Fence Company.
Appliance Mart argues that descriptive terms under the common law are entitled to no protection, citing S.S. Kresge Co. v. United Factory Outlet, Inc., 634 F.2d 1 (1st Cir. 1980) (Kresge II). Appliance Mart’s reliance on Kresge II is misplaced. In S.S. Kresge Co. v. United Factory Outlet, Inc., 598 F.2d 694 (1st Cir. 1979) (Kresge I), the appellate court affirmed the order of the district court denying a request by United Factory, d/b/a The Mart, for a preliminary injunction prohibiting Kresge, d/b/a K-Mart, from using the word “mart” in its advertising in Worcester County, Massachusetts. 634 F.2d 1. The Kresge I court held that “mart” was “a generic term ‘commonly used as a substitute for store or market.’ ” 634 F.2d 1. The Kresge I court further held that the words “The Mart” were not a valid trade name protected by trade name registration and were not entitled to protection under the law of unfair competition. 634 F.2d 1.
In Kresge II, the issue was whether United Factory should have been giyep an opportunity to prove that its use of the words “The Mart” in Worcester County, Massachusetts, had acquired a secondary meaning. 634 F.2d 1. The Kresge II court held that “when a generic term is used generically without any other descriptive or identifying words, it cannot acquire either common-law trade name protection or exclusive use protection through secondary meaning.” (Emphasis added.) 634 F.2d at 2. The point is that “The Mart” by itself was not protected, but “Mart” used in conjunction with a descriptive word could acquire protection through secondary meaning.
In Auto Body Specialists v. Vallee, 127 N.H. 382, 500 A.2d 372 (1985), the New Hampshire Supreme Court, responding to an argument that merely descriptive words cannot acquire a secondary meaning and hence have no protection as a trade name, states:
“Accordingly, words or phrases may enter commerce as merely generic or descriptive, but commercial usage can invest them with a secondary meaning associating them with a given business, so as to entitle that business to protect the association. [Citation omitted]. Courts have frequently afforded protection to generic or descriptive terms that have acquired secondary meaning within the automobile repair industry. [Citations omitted.]” 127 N.H. at 384.
See Planned Parenthood Federation of America, Inc. v. Problem Pregnancy of Worcester, Inc., 398 Mass. 480, 485, 498 N.E.2d 1044 (1986); Conti v. Anthony’s Shear Perfection, Inc., 350 Pa. Super. 606, 613, 504 A.2d 1316 (1986).
Conti defines secondary meaning as follows: “ ‘The term “secondary meaning” encompasses the situation where people in the trade or purchasing public come to think of a word or name as standing for the business of a particular owner.’ ” 350 Pa. Super at 613.
The plaintiff claims that by his use of the name since 1961, he has acquired secondary significance in the name “The Furniture Mart” and is entitled to protection from unfair competition. When words that one is seeking to protect are merely descriptive, the law requires that there be a strong showing of secondary significance. S.S. Kresge Co. v. United Factory Outlet, Inc., 598 F.2d at 696; American Aloe Corp. v. Aloe Creme Laboratories, Inc., 420 F.2d 1248 (7th Cir.), cert. denied 398 U.S. 929 (1970).
The trial court’s findings of fact indicate that plaintiff has continuously owned and operated his store under the name “The Furniture Mart” in Liberal, Kansas, since 1961. Plaintiff has spent a great deal of time and money over the years building a good reputation for his business in the Liberal trade area. According to the plaintiff, Furniture Mart was generally well known and accepted in the trade area. The name “The Furniture Mart” has become associated with the store and its services rather than with the furniture itself.
Plaintiff testified that the defendant’s customers had called the plaintiffs store concerning merchandise and repairs. Plaintiffs store received payments from defendant’s customers for merchandise purchased from the defendant. Plaintiffs store also received bills for repair work done on defendant’s delivery truck and received merchandise not ordered by plaintiff. Plaintiff further testified that there was no confusion by customers or suppliers before the defendant opened his store in Liberal and began advertising in the local media.
In granting Furniture Mart relief, the trial court concluded:
“It is the Court’s opinion that under the evidence presented, the Defendant’s mark can only be said to be a colorable imitation if it would deceive ordinary people and is likely to cause ordinary people to confuse or mistake Defendant’s name with that of the Plaintiff. It is the Court’s further opinion that the evidence presented clearly established that many people within the Liberal Trade area have been so confused or deceived.”
The question of whether a name has acquired secondary significance is a question of fact. See Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989). Although the defendant attempted to show that the misdirected telephone calls and mail could have occurred other than by confusion of the public, there is substantial competent evidence to support the trial court’s finding that people in the Liberal trade area confused the defendant’s name. We conclude that the evidence offered before the trial court establishes that the plaintiff acquired a secondary significance in his use of the name “The Furniture Mart,” and that the name is entitled to protection in the Liberal, Kansas, trade area under the common-law theory of unfair competition.
We disagree with the trial court’s conclusion that the name “The Furniture Mart” is entitled to statutory protection under Kansas law. However, we conclude that the name “The Furniture Mart” is entitled to protection under the common-law theory of unfair competition based upon the evidence that the name acquired a secondary significance over the years. We therefore affirm the decision and remand with directions for the court to enter relief under the common-law theory of unfair competition in accord with this opinion.
Affirmed and remanded with directions. | [
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Larson, J:
Phillip Turner appeals his jury conviction for aggravated assault, contending the evidence was insufficient, the trial court abused its discretion by failing to assign him to community corrections, and the sentence imposed was the result of partiality, prejudice, and corrupt motive.
On August 15, 1989, Jeffrey Gardner, a resident in a boarding house in Lawrence, Kansas, heard an argument, screaming and hollering coming from Turner’s room located directly below his. Gardner went downstairs to ask Turner to quiet down. Gardner spoke about the noise with Turner’s wife, Lana Robb, whom he met as she was coming out of their room. Robb said she would take care of the noise when she returned.
Gardner went back upstairs to his room and again heard screaming and arguing from Turner’s room. Gardner again went downstairs to talk to Turner about the noise. Through the open door of Turner’s room, Gardner saw Turner, who appeared to be intoxicated, in the middle of the room swinging a piece of pipe. Gardner thought Turner was going to hit Robb with the pipe.
Gardner approached Turner, stood at the threshold of the doorway, and asked him to put down the pipe. After some hesitation, Turner put the pipe down, but in the next instant he crossed to the other side of the room, grabbed a large utility knife from a shelf next to the door, verbally threatened Gardner, and lunged at him. Feeling afraid of being stabbed and concerned for his safety, Gardner retreated from the doorway and called the police.
Turner was arrested and charged with aggravated assault. He was convicted of that charge by a jury. He was sentenced to 2 to 10 years and his request for probation was denied. The trial court later denied Turner’s motion to modify and his request to be sent to community corrections. Turner appeals.
Was the evidence produced at trial sufficient to sustain the conviction?
The standard of review for sufficiency of the evidence in a criminal case is set forth in State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990):
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. ”
“[I]t is not the function of the appellate courts to weigh conflicting evidence, to pass on the credibility of witnesses, or to redetermine questions of fact. The reviewing court is concerned only with the evidence that supports the trial court’s findings, not with evidence that might have supported contrary findings.” State v. Knetzer, 3 Kan. App. 2d 673, 674, 600 P.2d 160 (1979).
“[I]f the essential elements of the charge are sustained by any competent evidence the conviction must stand.” State v. Burton, 235 Kan. 472, Syl. ¶ 2, 681 P.2d 646 (1984).
To find Turner guilty of aggravated assault required proof (1) that he intentionally threatened bodily harm to Gardner; (2) that he had the apparent ability to cause such harm; (3) that his conduct resulted in Gardner being in immediate apprehension of bodily harm; (4) that he used a deadly weapon; and (5) that this act occurred on or about August 15, 1989, in Douglas County, Kansas. K.S.A. 21-3408; K.S.A. 21-3410(a); PIK Crim. 2d 56.14.
The State through the testimony of Gardner presented competent evidence in support of each element of the charge. Gardner testified that on the date and at the place alleged, Turner intentionally threatened him with bodily harm by lunging at him with a kitchen knife. Gardner believed Turner had the ability to reach him with the knife, which made him afraid and convinced that he was going to be stabbed. The knife was admitted into evidence.
Although Turner and his wife both testified and recounted different versions, the jury weighed the testimony of all witnesses and, after deliberation, found Turner guilty of aggravated assault. Our review of the evidence shows that a rational factfinder was clearly justified in making this finding. Turner’s conviction of aggravated assault is affirmed.
Was the sentence imposed the result of the trial court’s partiality, prejudice, or corrupt motive?
The standard of review has been stated in State v. Doile, 244 Kan. 493, 503-04, 769 P.2d 666 (1989):
“A sentence imposed by the trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. [Citations omitted.]”
“It is the sentencing judge alone who determines the appropriate sentence or other disposition in each case, not the appellate judges.” State v. Heywood, 245 Kan. 615, 617, 783 P.2d 890 (1989). Turner must “show vindictive or retaliatory motives, or that judicial discretion was abused, to successfully attack the penalty imposed.” State v. Coberly, 233 Kan. 100, 110, 661 P.2d 383 (1983). The sentence was within the statutory limits but did exceed the minimum. K.S.A. 21-3410; K.S.A. 21-4501(d)(l). “ ‘[W]hen the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence.’ ” State v. Harrold, 239 Kan. 645, 650, 722 P.2d 563 (1986).
In support of his contention that the sentence imposed was a result of the trial court’s partiality, prejudice, and corrupt motive, Turner focuses upon a particular comment made by the trial court during sentencing: “You are just kind of a nuisance in the community; and from the aspects of this crime, you are getting to be a dangerous nuisance in the community.”
This comment was part of a much longer statement made by the trial court while reviewing Turner’s background and present situation. It does not establish partiality, prejudice, or corrupt motive or show an excessive punishment. See State v. Adams, 242 Kan. 20, 27-28, 744 P.2d 833 (1987) (comment by trial court at sentencing regarding the defendant’s crime of involuntary manslaughter did not establish prejudice).
Did the trial court abuse its discretion by not assigning Turner to community corrections?
Although Turner was a first-time felony offender, because he was found guilty of an article 34, chapter 21 crime, he was in eligible for the benefits of K.S.A. 1989 Supp. 21-4606a, which states:
“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class D or E felony or convicted of an attempt to commit a class D felony shall be probation, unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated or the crime is a felony violation of K.S.A. 65-4127b, and amendments thereto, which involved the manufacture, sale, offer for sale or possession with intent to sell such controlled substances. 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. If the presumptive sentence provided by this section is not imposed, the provisions of K.S.A. 1989 Supp. 21-4606b shall apply.”
Once it was determined that the statutory presumption of probation did not exist it was necessary to determine whether the presumptive sentence of assignment to community corrections applied pursuant to K.S.A. 1989 Supp. 21-4606b, which states:
“(1) If probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto, the presumptive sentence for a person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.
“(2) In determining whether to impose the presumptive sentence provided by this section, the court shall consider whether any of the following aggravating circumstances existed:
“(a) Whether the crime is a felony violation of K.S.A. 65-4127b and amendments thereto which involved the manufacture, sale, offer for sale or possession with intent to sell such controlled substances;
“(b) whether the crime is a crime specified in article 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated; or
“(c) any prior record of the person’s having been convicted of a felony or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
Our court held in State v. Atwell, 14 Kan. App. 2d 752, 754, 798 P.2d 517 (1990), that when the presumption of probation in 21-4606a is overcome, the trial court then must consider the presumption of community corrections placement in 21-4606b.
When the crime is a violation of article 34, 35, or 36 of chapter 21, the test applicable to a first-time felon convicted of a class D or E felony (Turner) differs depending upon whether the pre sumption is probation, 21-46064, or whether the presumption is assignment to community corrections, 21-4606b.
The wording of 21-4606a clearly states: “The presumptive sentence . . . shall be probation, unless the conviction is of a crime specified in article 34.” (Emphasis added.) Paragraph (1) of 21-4606b makes assignment to community corrections the presumptive sentence for first-time class D or E felons, but then states in paragraph (2):
“In determining whether to impose the presumptive sentence provided by this section, the court shall consider whether any of the following aggravating circumstances existed:
“(b) whether the crime is a crime specified in article 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated.” (Emphasis added.)
The conjunctive “unless” acts to exclude the presumption in 21-4606a, while under 21-4606b the fact Turner’s crime was an article 34, chapter 21, violation is to be considered as “aggravating circumstances” in the imposition of a sentence to community corrections.
Turner cites two 21-4606a cases, State v. Tittes, 245 Kan. 708, 784 P.2d 359 (1989), and State v. Linsin, 10 Kan. App. 2d 681, 709 P.2d 988 (1985), which held the statutory presumption could only be overcome by the trial court following the sentencing objectives of K.S.A. 21-4601 and including in the record the additional sentencing factors of K.S.A. 21-4606. Turner contends these cases apply to 21-4606b even though the Kansas courts have not in any previously published case said so. We believe that Turner is correct in his contention. We hold that when considering whether the presumptive sentence of assignment to community corrections is overcome, the trial court must consider the “aggravating circumstances” mentioned in K.S.A. 1989 Supp. 21-4606b(2)(a), (b), and (c) and must also consider the requirements of individualized treatment mandated by K.S.A. 21-4601 as well as the criteria and factors of K.S.A. 21-4606.
We hold the trial court made the required considerations in this instance. The trial court had the benefit of a presentence investigation report, knew Turner had no prior felony convictions, and knew that the crime involved was specifically mentioned by 21-4606b(2)(b). Although 21-4601 and 21-4606 were not specifi cally cited, the trial court sentenced Turner in accordance with his individual characteristics, circumstances, needs, and potentialities. Before Turner was sentenced, the trial court stated: “I understand that when I sentence [the defendant], it is going to be on the basis of this offense, but I want to know everything about him or as much as I can know about him to get the proper sentence, bad or good.”
The trial court had before it all the information necessary to apply the factors of K.S.A. 21-4606 that were applicable to Turner’s situation. The PSI report set forth Turner’s history of prior criminal activity. The sentencing judge had presided at the jury trial and was able to consider whether Turner intended that his criminal conduct would cause or threaten serious harm, consider the degree of Turner’s provocation, consider whether there were substantial grounds tending to excuse or justify his criminal conduct, and consider whether the victim of the criminal conduct induced or facilitated its commission.
Turner’s counsel specifically requested bn three different occasions during argument on the motion to modify, which was heard after the SRDC evaluation was received, that the trial court assign Turner to a community corrections program. The trial court in response to this specific request stated: “I think the reports that I have received, counsel, and having heard the evidence at trial, I believe that the best interests of society, and for that matter, Mr. Turner, are served with him being where he is. Motion is denied.”
The SRDC report recommended that Turner remain incarcerated. The trial court knew that Turner had been arrested for disorderly conduct while out on bond prior to the sentencing hearing. Turner’s bond was revoked and he was remanded into custody because he violated a condition of his bond that he not drink alcoholic beverages.
The standard of our review is whether the trial court abused its discretion. State v. Crichton, 13 Kan. App. 2d 213, 217, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989). In this case, there are sufficient aggravating circumstances to preclude the presumptive sentence of assignment to community corrections. The trial court made a thoughtful and complete analysis of the effect of Turner’s actions upon himself and his family, plus the effect upon the community safety. The trial court considered the necessary statutory factors, considered the required presumptions, and did not abuse its discretion by not assigning Turner to community corrections.
Affirmed.
Opinion (In re Tax Appeal of Cessna Aircraft Co., on pages 229-236 withdrawn from publication.
Appeal dismissed without prejudice March 5, 1992. | [
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Lewis, J.:
This is an appeal by the State of Kansas from an order suppressing evidence. The evidence was seized in a search authorized by an emergency administrative order issued by the Kansas Animal Health Department. In issuing the order, the .State was-.acting pursuant to the Animal Dealers Act (ADA), K.S.A. 47-1701 et seq.
The context in which this issue comes before us is that of a criminal prosecution. The defendant is charged with one count of cruelty to animals and one count of failure to comply with the ADA. In pursuing the prosecution, the State sought to introduce evidence seized from the defendant’s premises pursuant to the emergency administrative order. The trial court held such evidence to be inadmissible. It did so by holding that the evidence was obtained in violation of the defendant’s right to be free from unreasonable searches and seizures. The State appeals that ruling. We affirm the decision of the trial court.
Marilyn Marsh (defendant) lived on a farm in rural Franklin County. Apparently, her farm premises consisted of a dwelling house, several dog kennels or pens, bams, and other outbuildings. There is no indication as to the total area occupied by the defendant, nor as to that part of the premises that would have been within the “curtilage” of her dwelling. •
Although she was not licensed under K.S.A. 1990 Supp. 47-1702 and K.S.A. 1990 Supp. 47-1722(a) of the ADA, she was apparently operating as an animal dealer within the meaning of the ADA. Specifically, the defendant dealt in dogs, or, at the very least, had a great fondness for dogs. The record indicates that, upon her premises, the defendant was in possession of approximately 130 dogs, primarily of the Akita breed.
The defendant’s premises first came to the attention of the Animal Health Department on July 9, 1990. On that date, a State animal inspector, acting on the basis of oral and written complaints and without the knowledge and consent of the defendant, inspected the defendant’s premises. At this time, it was observed that the defendant had many dogs who appeared to be in fairly decent condition. However, this inspection noted that the animal pens, etc., were not being kept in the required state of cleanliness.
In early October 1990, another “inspection” was conducted. Again, the permission of the defendant was neither sought nor obtained. The premises were clearly posted “no trespassing or admittance.” This inspection revealed a deterioration in the condition of the animals and the premises. The condition of both the dogs and the premises is described as having been “deplorable.” In addition to checking the dog pens, barns, and outbuildings, the inspector looked into a window of the defendant’s home and observed three or four dogs in the dwelling.
The last inspection indicated that the defendant appeared to be raising, breeding, and selling dogs in such a volume as to be subject to the ADA. Despite this fact, it was determined that the defendant was not licensed and had not filed an application for a license. There is no indication in the record that the defendant was aware of the requirements of the law insofar as licensing is concerned.
After the second inspection, the Kansas Animal Health Department consulted its counsel with a view to taking action against the defendant. After consulting with the department, the attorney for the department drafted an emergency impoundment order. This order was presented to the acting livestock commissioner for his signature. The order was signed on October 5, 1990, by Wilbur Jay, a veterinarian, who was the acting livestock commissioner. The order was prepared and issued pursuant to K.S.A. 1990 Supp. 47-1707(c) and K.S.A. 77-536(a)(2). On the basis of the authority granted by this order, the State was authorized to seize and impound the defendant’s dogs. The evidence sought to be admitted against the defendant was obtained under the authority of the emergency administrative order. No search warrant was sought or issued.
On October 5, 1990, a task force of 30 people and 8 or 9 trucks invaded the defendant’s farm. The defendant was not home, she was not notified that the invasion was coming, and her consent was not obtained. Acting under the authority of the emergency order, the task force occupied the defendant’s premises for approximately 13 hours. During that time, they seized, tranquilized, and hauled off all of the defendant’s dogs. In the process, they found that the dwelling house in which the defendant lived was locked. Upon this discovery, they broke in the door, violated the sanctity of the defendant’s home, and hauled off all of the dogs located inside that home.
After the operation had been ongoing for some six to six and one-half hours, the defendant returned home. Upon observing her premises literally crawling with law enforcement and animal health agents, she asked them to leave. They refused to heed her request and continued their labors without her consent until approximately 2 a.m. the next morning.
After the search was completed and the defendant’s dogs were seized and impounded, the attorney general filed criminal charges against the defendant. This appeal is from rulings made in the prosecution of those charges.
We are asked to determine if the trial court erred in suppressing all evidence obtained during the search of the defendant’s premises on October 5, 1990. As we approach this issue, we wish to emphasize that the search and seizure in question were not accomplished with the aid or benefit of a search warrant. This was a warrantless search conducted under the authority granted by the emergency order of the acting livestock commissioner.
We deem it important to note what is not involved in our decision. We are not asked or required to determine the constitutionality of the ADA or any part thereof. Accordingly, we do not do so. We are not asked and are not required to decide whether evidence obtained in the manner outlined in this opinion would be admissible in a civil proceeding or in an administrative proceeding to revoke a license or impose a civil fine. We express no opinion on that issue. To the extent that language in this opinion can be inferred to shed light on how we would decide either issue mentioned above, such language can be considered as nothing more than dicta.
The sole question this court is confronted with is whether evidence obtained under the emergency administrative order and the ADA is admissible in the criminal proceedings filed against the defendant. The trial court held that it was not admissible. Our review indicates that the trial court’s position was correct.
The United States Supreme Court has permitted warrantless searches of commercial establishments conducted under administrative orders or regulations. These searches are permitted for a variety of reasons as an exception to the search warrant requirements of the Fourth Amendment. Such searches are permitted only in the event that certain elements exist and the requirements of the Fourth Amendment are comported with. See Donovan v. Dewey, 452 U.S. 594, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981); United States v. Biswell, 406 U.S. 311, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972); Colonnade Corp. v. United States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774 (1970).
The most recent and, we believe, the controlling case on the subject is that of New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987). That case involved the question of whether the warrantless search of an automobile junkyard, pursuant to a statute authorizing such a search, fell within the exception to the warrant requirement for administrative inspections of pervasively regulated industries.
The court in Burger reviews its prior decisions on the subject, which indicate that there is a reduced expectation of privacy by the owner of commercial premises in a “closely regulated” industry. This reduced expectation of privacy, as well as other factors, has permitted warrantless searches pursuant to administrative orders under certain narrow circumstances. The court then sets out the requirements for a warrantless inspection to be deemed reasonable:
“This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made. See Donovan v. Dewey, 452 U.S., at 602 (‘substantial federal interest in improving the health and safety conditions in the Nation’s underground and surface mines’); United States v. Biswell, 406 U.S., at 315 (regulation of firearms is ‘of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders’); Colonnade Corp. v. United States, 397 U.S., at 75 (federal interest ‘in protecting the revenue against various types of fraud’).
“Second, the warrantless inspection must be ‘necessary to further [the] regulatory scheme.’ Donovan v. Dewey, 452 U.S., at 600. For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act — :to detect and thus to deter safety and health violations. Id., at 603.
“Finally, ‘the statute’s inspection program, in terms of tire certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ Ibid. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See Marshall v. Barlow’s, Inc., 436 U.S., at 323; see also id., at 332 (Stevens, J., dissenting). To perform this first function, the statute must be .‘sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’ Donovan v. Dewey, 452 U.S., at 600. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be ‘carefully limited in time, place, and scope.’ United States v. Biswell, 406 U.S., at 315.” 482 U.S. at 702-03.
The trial court in the instant matter found that the first two prongs of Burger were satisfied but that the third prong was not. We agree.
We believe that there is a substantial government interest in regulating the operation of “puppy mills” in the State of Kansas. The first prong of Burger is satisfied.
We further hold that a warrantless inspection would be “necessary to further the regulatory scheme.” The Supreme Court, in Donovan v. Dewey, 452 U.S. at 603, reasoned that forcing a mine inspector to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the mine safety and health act. While we do not equate regulating the dog business with the mine safety and health act, we nonetheless are convinced that warrantless inspections might very well be necessary to further the regulatory scheme in. the industry. The second prong of Burger is satisfied.
However, the third requirement is that the statute or administrative order under which the search is conducted must comport with basic Fourth Amendment requirements. Most important, in our opinion, is the requirement that the administrative order must be “carefully limited in time, place, and scope.” We are not convinced that the order issued in this case or the statute that authorized it satisfies the third prong of the Burger decision.
The Burger decision explained why it felt the third prong of its test had been satisfied by the New York law under which the inspection was made:
“Third, § 415-a5 provides a ‘constitutionally adequate substitute for a warrant.’ [Citation omitted.] The statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis. [Citation omitted.] Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. [Citation omitted.] Section 415-a5 also sets forth the scope of the inspection and, accordingly, places the operator on notice as to how to comply with the statute. In addition, it notifies the operator as to who is authorized to conduct an inspection.
“Finally, the ‘time, place, and scope’ of the inspection is limited, United States v. Biswell, 406 U.S., at 315, to place appropriate restraints upon the discretion of the inspecting officers. See Donovan v. Dewey, 452 U.S., at 605. The officers are allowed to conduct an inspection only ‘during [the] regular and usual business hours.’ § 415-a5. The inspections can be made only of vehicle-dismantling and related industries. And the permissible scope of these searches is narrowly defined: the inspectors may examine the records, as well as ‘any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises.’ ” 482 U.S. at 711-12.
Neither the statute in question nor the emergency administrative order pass muster under the Burger rationale. We have already noted that the first two prongs of the Burger test can arguably be satisfied. However, the third element of that test is totally lacking.
The third requirement of Burger indicated that a warrantless administrative search would be permitted if the inspection program in question: (a) advised the owner of the commercial premises that the property will be subject to periodic inspections undertaken for specific purposes; and (b) the discretion of the inspecting officers is carefully limited as to the time, place, and scope of the inspection.
It is questionable, in this case, whether the owner of the dogs was aware that her property was subject to periodic inspections. K.S.A. 1990 Supp. 47-1709(b) provides for inspections of a licensed dealer to take place at least once a year if that dealer is also federally inspected; otherwise the state inspection is to occur twice a year. It appears that a licensed animal dealer under the act is advised that his property will be subject to periodic in spections. There may be some factual question as to whether the State has the necessary inspectors to provide those periodic inspections, but that appears to be a question of fact. However, to the extent that the statute must make an owner aware of periodic inspections, it appears to do so.
The problem that arises on the particular facts before this court is that this defendant was not a licensed dealer. There is nothing in the record to indicate that this particular defendant was aware of the inspection requirement or was even aware of the fact that she was required to be licensed under state law. It seems doubtful to us that, under these facts, it could be concluded that the defendant was aware that she was subject to periodic inspections.
It can be argued that “ignorance of the law is no excuse.” It is obvious that, had this defendant complied with the State laws and been licensed as required, she would not have been ignorant of the periodic inspection requirements. However, we deal here with the right to be free from unreasonable searches and seizures guaranteed to us by both the United States and Kansas Constitutions. At a suppression hearing, the burden of proof is on the prosecution to show that the search and seizure was lawful. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984); State v. Chiles, 226 Kan. 140, 145, 595 P.2d 1130 (1979). While we might conclude that the statutory scheme in effect in the State of Kansas advises licensed animal dealers that their property is subject to periodic inspection, there is simply no evidence in the record that that scheme was sufficient to advise the defendant, who was unlicensed. The record in the instant matter does not show that this defendant was aware that her premises were subject to any kind of inspection whatsoever. Under these facts, we conclude that the statutory scheme did not advise this particular owner of commercial property that her property was subject to periodic inspections.
However, even though we hold that this defendant was not aware of the State’s scheme providing for periodic inspections of licensed dealers, we need not rest our decision on that basis. Neither the statute nor the emergency administrative order involved in the instant matter limited the discretion of the inspectors as to time, place, and scope of the inspection. The failure to so limit the search renders it unreasonable as a matter of law. The pertinent part of the emergency administrative order under which this search took place reads as follows:
“It Is Therefore Ordered- And Decreed by the Commissioner of the Kansas Animal Health Department that pursuant to K.S.A. 1989 Supp. 47-1707(c), all dogs in the possession, custody) and care of respondents [sic] shall be seized and impounded until such time that a formal hearing is held on this matter.”
The search and seizure ordered was issued pursuant to K.S.A. 1990 Supp. 47-1707(c), which reads as follows:
“Whenever the commissioner has reasonable grounds to believe that a person required to be licensed or registered under this act has failed to comply with or has violated any provision of this act or any rule and regulation adopted hereunder and that the health, safety or welfare of animals in such person’s possession, custody or care is endangered thereby, the commissioner shall seize and impound such animals using emergency adjudicative proceedings in accordance with the Kansas administrative procedure act.”
It is obvious that neither the statute nor the emergency administrative order make any effort to limit the time, place, and scope of a warrantless search. Indeed, a review of the facts concerning this search clearly indicates that there were no limits. The searchers arrived at one o’clock in the afternoon and continued their efforts unabated for the next 13 hours. Not only were the defendant’s outbuildings and pens subjected to a search, her dwelling house was broken into and searched by the law enforcement officers, and dogs were removed therefrom.
Where inspections are authorized, but no rules exist governing the procedures that inspectors must follow, the Fourth Amendment restrictions apply. State v. Williams, 8 Kan. App. 2d 14, 18, 648 P.2d 1156, rev. denied 231 Kan. 802 (1982). Under the ADA, the secretary was to adopt rules and regulations relating to inspections of licensed or registered premises, investigation of complaints, and the seizure and impoundment of animals. We have reviewed the Kansas Administrative Regulations insofar as they apply to animal welfare. See K.A.R. 9-13-1 et seq. Our review of the regulations in effect at the time of the search does not reveal any limitation on the time, place, and scope of a search and seizure operation to be conducted under the ADA. In fact, testimony in this particular action by one of the inspectors in dicated that the inspectors believed they had unlimited discretion to decide when and where to inspect.
We conclude that there were no limits on the time, scope, or place of the search undertaken or of any search and seizure conducted in this case under the statutes authorizing inspections and seizures. The administrative and statutory scheme in place in the State of Kansas allows a search and seizure to take place when the livestock commissioner has “reasonable grounds” to believe that the statutes have been violated. The seizure statute says nothing about where the seizures may be made. It says nothing about when they may be made. There was no limitation placed on the scope of this particular search and seizure operation, nor do the statutes or administrative regulations place any limitation on the scope of the seizure operation.
We hold that, under the facts shown, the search and seizure operation undertaken on the defendant’s premises did not comport with the requirements of the Fourth Amendment. The search and seizure operation was not limited by order, statute, or regulation as to time, place, and scope of the search. Such a limitation is required by the Burger decision for a warrantless search and seizure to be considered lawful and reasonable. As a result, we conclude that the search conducted in this action violated the defendant’s right to be free from unlawful searches and seizures. We further hold that the trial court did not err in suppressing the evidence in the instant matter. It is axiomatic that any evidence obtained during an unlawful search and seizure is inadmissible in the prosecution of the defendant whose rights were violated by such search and seizure.
The State argues that a decision affirming the trial court will cripple the enforcement of the ADA. It bases its argument partially on the premise that a search warrant is not obtainable under our statute for a violation of administrative regulations. This argument lacks merit on the facts presented. In the instant matter, the defendant is charged with a crime, and a search warrant was certainly available to the regulatory officials if probable cause existed that the crime of cruelty to animals was taking place. Neither are we persuaded that the exigency of the situation, due to the condition of the animals, required prompt emergency action. If the proper steps are followed, we suspect that a search warrant- can be obtained in nearly the same time frame as it takes to obtain an emergency administrative order.
In addition to the decisions of the United States Supreme Court, there áre decisions of sister states in accord with our holding in the present matter. In Commonwealth v. Lipomi, 385 Mass. 370, 432 N.E.2d 86 (1982), the Massachusetts Supreme Judicial Court dealt with an administrative inspection warrant which authorized the search of a retail pharmacy. The trial court had ordered the evidence suppressed. On appeal, the Massáchúsetts court affirmed the decision of the trial court, saying:
“The defendant argues that any authority to inspect granted by G.L. c. 13, § 25, is invalid, however, because the statute fails to impose appropriate limitations as to the time, place, and scope of such inspections. See, e.g., United States v. Biswell, supra at 315; Colonnade Catering Corp. v. United States, supra at 77. In the absence of consent or exigent circumstances, the legality of a warrantless administrative inspection Of a pervasively regulated business depends on the authority of a valid statute which carefully- limits the inspection authority in.time, place, and scope. [Citation omitted.]” 385 Mass, at 382.
The Massachusetts court found no such limitation in its regulatory scheme and, thus, concluded that evidence obtained- as a résult of the administrative search was not admissible. See also Massage Foundation v. Nelson, 87 Wash. 2d 948, 558 P.2d 231 (1976) (Statutes authorizing warrantless regulatory inspections of massage parlors failed to set forth adequáte limitations on purpose, time, place, or scope of such inspections and were invalid.).
We think the situation presented to this court is analogous to that found in Commonwealth v. Lipomi. There certainly was no consent to the search in this case; indeed, the defendant asked the inspecting authorities to leave her premises, and they refused to do so. The State has shown us no indication that any exigent circumstances existed. Indeed, the proceedings which resulted in the. issuance of the emergency administrative order were the result of two prior inspections, one of which dated back several months. The regulatory scheme in Kansas has no statute or regulation which carefully limits the inspecting authorities as to time, place, and scope. Accordingly, the evidence seized based on the authority of the emergency administrative order was obtained in violation of the defendant’s rights and cannot be admitted against her.
As we pointed out earlier, this decision relates only to the question of whether the evidence seized is admissible during the criminal trial of this defendant. However, in view of the comments made in this opinion, we would suggest that a legislative overview be taken to correct deficiencies pointed out in this opinion. We would also suggest that, in the future, a search warrant be obtained in situations such as that presented in this appeal. We have no doubt that, if the proper evidence is presented, such a warrant can be obtained to search for evidence of the crime of cruelty to animals. In proceeding in this fashion, we believe that the constitutional rights of our citizens will be better protected and, in addition, the likelihood of any evidence seized being admissible at a criminal trial will be greatly enhanced.
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Kennedy, J.:
Credit Bureau of Greater Garden City, Inc., (Credit Bureau) appeals the district court’s finding that it violated the Fair Debt Collection Practices Act (15 U.S.C. §,1692 et seq. [1982]), as well as the court’s award of damages' and attorney fees to Howard and Patricia Humble.
The Humbles purchased jewelry from Clark’s Jewelers in Dodge City and contracts were executed to finance their purchases. On August 24, 1987, Patricia received a télephone call from Virginia Green, an employee of Credit Bureau, informing Patricia that Clark’s had assigned collection of the Humbles’ account to Credit Bureau. On the same day, Credit Bureau mailed a letter to the Humbles seeking $12,263.45 on behalf of Clark’s. The letter indicated the Humbles had 30. days to. dispute the alleged debt, and that failure to pay could seriously compromise the Humbles’ ability to receive credit in the future.'
Upon receiving the letter, the Humbles retained John Fierro, who on August 29, 1987, advised the Credit Bureau:
“Please be advised that I represent Mr. and Mrs. Humble. Under no circumstances are you to communicate with them any further concerning this account. . . .
“I. My clients have never received statements or notices from either the Clarks or the. attorney that they fired.
“2. My clients share an excellent reputation in this community and if either you or [Clark’s] take any steps to blemish that record you can be sure that all of you will be involved in a láwsuit.
“3. We suggest that you investigate the reputation and activity of the creditor in this case in Dodge City to determine if these are the kind of people you wish to represent.
“4. The format of your letter of August 24, 1987 violates the Fair Debt Collection Practices Act.”
After receiving the letter, Green discussed the status of the Humbles’ account with Roland Belcher, president of Credit Bureau. Pursuant to its internal filing procedure, Green marked the Humble account as “disputed.” In addition, she noted the following in the account ledger: “Received a letter from [the Humbles’] attorney, John Fierro. We are to communicate only with him. Change the address.”
On September 1, 1987, Fierro wrote Credit Bureau, stating the Humbles had reached an agreement with Clark’s to pay a minimum of $30 per month. The letter stated that no further payments would be made until Credit Bureau indicated who was authorized to receive payment. In addition, the letter indicated the possibility of a lawsuit against Clark’s for misrepresenting the value of the jewelry.
On September 8, 1987, Credit Bureau wrote to the Humbles in care of Fierro, stating: “[Y]ou have avoided paying this debt in spite of repeated demands for payment and without explanation.” Fierro returned this letter to the Credit Bureau with a handwritten note referring to his September 1 letter. Credit Bureau sent additional letters on September 29 and October 21, 1987. In its October 21 letter, Credit Bureau asserted: “This office has received no response to previous contacts with you regarding the above captioned matter.” Fierro responded to Credit Bureau’s letters on September 30 and October 27, 1987, and forwarded copies of all letters to the Humbles. All letters sent to Fierro by Credit Bureau were computer-generated form letters. None of the letters acknowledged Fierro or any of his requests or demands.
Clark’s filed suit against the Humbles. The Humbles filed a petition bringing Credit Bureau into the lawsuit as a third-party defendant, alleging violations of the Fair Debt Collection Practices Act. The Humbles settled out of court with Clark’s. The district court found that Credit Bureau did not respond directly to Fierro’s letters but sent form letters designed for the Humbles rather than their attorney and that the letters violated 15 U.S.C. § 1692c(a)(2) (1982). The court did not award damages for the violations because of Fierro’s ability to censor the letters. The court concluded Credit Bureau’s September 8 letter violated 15 U.S.C. § 1692g(b) (1982). Pursuant to 15 U.S.C. § 1692k(a)(2)(A) (1982), the court ordered Credit Bureau to pay civil damages of $500 and the Humbles’ attorney fees.
At the request of the district court, Fierro submitted an itemized statement of his charges, requesting $100 per hour for 48 hours. Credit Bureau opposed the statement and, after a hearing, the court ordered payment of Fierro’s fees at a rate of $100 per hour for 40 hours.
This court’s scope of review is to determine whether the trial court’s findings are supported by substantial competent evidence and whether the findings are sufficient to support the court’s conclusions of law.
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
Credit Bureau’s first issue is that the district court erred in finding violation of §§ 1692c(a)(2) and 1692g(b) of the Act. It argues that letters addressed to the Humbles but mailed in care of Fierro cannot constitute direct communications with debtors in violation of § 1692c(a)(2). Credit Bureau also argues the letters received from Fierro did not dispute the debt and, therefore, § 1692g(b) is not applicable.
15 U.S.C. § 1692c provides:
“(a) Communication with the consumer generally.
“Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
“(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer.”
Fierro wrote four letters to Credit Bureau and a handwritten note, yet Credit Bureau did not respond directly to any of Fierro’s correspondence. After receiving Fierro’s August 29 letter, Credit Bureau directed all subsequent letters concerning the Humbles’ debt to Fierro’s office. The letters-were addressed to the Humbles in care of Fierro. Despite Fierro’s demand that Credit Bureau refrain from communicating with the Humbles, Credit Bureau directed its letters to the Humbles and did not acknowledge Fierro’s representation. In its October 21 letter to the Humbles at Fierro’s address, Credit Bureau asserted: “This office has re ceived no response to previous contacts with you regarding [your indebtedness to Clark’s].”
Credit Bureau also asserts that any error on its part is a mere technical violation of the Act and not the type of conduct the statute is designed to prevent. This assertion is without merit. “[I]t seems c(a)(2) was designed to prevent repeated phone calls and letters directly to the debtor after the debt collector knows that person to be represented by an attorney.” Bieber v. Associated Collection Services, Inc., 631 F. Supp. 1410, 1417 (D. Kan. 1986). In this instance, Credit Bureau repeatedly mailed letters to the Humbles after learning they were represented by Fierro. Although the letters arrived at Fierro’s office, there is substantial evidence to support the district court’s conclusion that Credit Bureau directly communicated with the debtors, in violation of § 1692c(a)(2) of the Act.
15 U.S.C. § 1692g(b) provides:
“If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed . . . the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.”
Credit Bureau argues it did not violate this section because the letters Fierro wrote on behalf of the Humbles did not dispute the debt. Examination of the letters indicates that' Fierro did not actually use the word “dispute” in his communications. In his August 29 letter, Fierro mentioned a possible claim against Clark’s for misrepresentation. He also claimed the Humbles received no statements or notices in relation to the alleged debt. At trial, Green testified she did not interpret Fierro’s letter as disputing the debt.
The Act does not define the meaning of the word “dispute” as it is used in the statute. Black’s Law Dictionary 472 (6th ed. 1990) defines the term “dispute” as “conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other.” Fierro’s letter of August 29 indicated intent to file a counterclaim on behalf of the Humbles against Clark’s. Although the term “dispute” was not used, the context of Fierro’s letter clearly shows that the debt sought to be collected was contested. Credit Bureau should have refrained from further contact with the Humbles upon receiving this notice of dispute. There is substantial evidence to support the district court’s conclusion that Credit Bureau violated § 1692g(b) of the Act.
The district court awarded the Humbles damages of $500 pursuant to § 1692k(a)(2)(A) of the Act, based upon Credit Bureau’s violations of the Act in dealing with the Humbles as well as Credit Bureau’s problems with previous lawsuits. Credit Bureau argues the court abused its discretion in ordering that Credit Bureau pay damages to the Humbles. “The standard of review for abuse of judicial discretion is whether the judge’s ruling was arbitrary, fanciful, or unreasonable. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court.” Smith v. Deppish, 248 Kan. 217, Syl. ¶ 2, 807 P.2d 144 (1991).
15 U.S.C. § 1962k(a)(2)(A) permits a court, in its discretion, to award compensation for damages in addition to actual damages in the case of an action by an individual debtor. A court awarding additional damages in any individual action must consider “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.” § 1962k(b)(l). Such awards are subject to § 1692k(c), which provides:
“A debt collector may not be held liable in any action bought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”
The district court considered detailed evidence of Credit Bureau’s prior disputes with debtors in addition to evidence of its intentions in dealing with the Humbles. Belcher testified that Credit Bureau had been in operation for 65 years and he had been involved with the agency for 25 years. Green testified' that she began doing collection work in 1980. Both Belcher and Green indicated that Green received extensive training prior to handling accounts on behalf of Credit Bureau. In regard to the Humbles’ account, Green’s notes indicate her understanding that she was to communicate only with Fierro. Yet, instead of responding to the specific concerns expressed in Fierro’s correspondence, Credit Bureau replied with computer-generated form letters directéd to the Humbles in care of Fierro. Green made a conscious choice to send the form letters after hearing from Fierro and reviewing the Humbles’ account with her supervisor. Belcher admitted to Credit Bureau’s involvement in two prior lawsuits brought by debtors. He indicated, however, that both lawsuits resulted from the accidental mixing of names and addresses on accounts.
The district court concluded that Credit Bureau failed to show by a preponderance of evidence that its violations of the Act resulted from bona fide error. The court did not abuse its discretion in assessing a $500 civil penalty against Credit Bureau.
Finally, Credit Bureau argues the district court erred in awarding the Humbles $4,000 in attorney fees, based on 40 hours at a rate of $100 per hour.
“Generally, the award of attorney fees is a matter within the trial court’s discretion and is upheld unless there is a showing of an abuse of discretion. [Citation omitted.] .... As a general rule, appellate courts defer to any thoughtful rationale and decision developed by a trial court and avoid second guessing. [Citation omitted.]” Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 198-99, 786 P.2d 618 (1990).
“In Kansas, attorney fees are not allowed unless authorized by statute or by agreement of the parties.” Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, Syl. ¶ 3, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988). The Act allows successful litigants to recover “a reasonable attorney’s fee as determined by the court” from debt collectors. 15 U.S.C. § 1692k(a)(3).
Credit Bureau asserts the record in this case does not justify the Humbles’ attorney charging $100 an hour for his services. Examination of the record reveals conflicting evidence concerning Fierro’s hourly rate in this case. Patricia Humble testified that Fierro charged them $90 per hour for his services. At a hearing on the issue of attorney fees, Fierro testified that he informed the Humbles he would charge them at an hourly rate of $100 per hour in this action. Fierro used the same hourly rate in the itemized statement he submitted to the district court. He indi cated his standard hourly rate could vary from $95 to $120 per hour, depending upon the type of client and the complexity of the case.
After considering the aforementioned conflicting evidence, the district court assessed attorney fees of $100 per hour against Credit Bureau. “[Cjonflicts in the evidence are left to the fact-finder, here the district court.” Carter v. Koch Engineering, 12 Kan. App. 2d 74, 86, 735 P.2d 247, rev. denied 241 Kan. 838 (1987). Based upon the evidence in the record, the district court did not abuse its discretion in awarding fees at the rate of $100 per hour.
Credit Bureau also contends the court abused its discretion in assessing attorney fees based upon 40 hours of work. Again, there is conflicting evidence. Credit Bureau argues that, given Fierro’s expertise in creditor rights, his charge for 5.5 hours of research is excessive. However, Fierro testified that he had little experience in the area of debtor harassment prior to representing the Humbles. Credit Bureau also argues that Fierro’s charge for 7.5 hours of trial preparation is excessive. It points out that Fierro admitted he did not document the time he spent working on the Humbles’ claim.
The district court’s memorandum opinion on the issue of attorney fees indicates it considered all of the evidence and Credit Bureau’s contentions in a thoughtful manner. Fierro requested compensation for 48 hours of work but the court allowed compensation for 40 hours based in part on Fierro’s failure to document his hours, as well as the court’s belief that the amount of time spent in preparing briefs, findings of fact, and pleadings may have been excessive. In light of the record, the district court did not abuse its discretion in awarding fees for 40 hours of work.
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Pierron, J.:
This is an appeal of a denial of a writ of habeas corpus. The appellant in this case asserts that he has a liberty interest in receiving a recommendation for a sentence modification from the Secretary of Corrections. The appellant asserts that this protected liberty interest was created by the Kansas Department of Corrections Internal Management Policy and Procedure No. 011-114.
The appellant is incarcerated in the custody of the Kansas Secretary of Corrections. He was convicted of the sale of cocaine, a class C felony, and the attempted possession of cocaine, a class D felony. The beginning date of his incarceration was February 5, 1988, and his controlling sentence is 8 to 20 years. In April 1990, the appellant submitted to the Osawatomie Correctional Facility Program Management Committee a request for modification of his minimum sentence pursuant to K.S.A. 1989 Supp. 21-4603(4).
In his letter requesting a modification of his sentence, the appellant details how he has changed since he has been in prison, how he has taken advantage of available programs and mental health counseling, and how no further programs or counseling are available that would be of benefit to him. He suggests that he is no longer a threat to the public, has shown a sincere desire to abide by the law, and has been fully rehabilitated. In addition to his letter, the appellant submitted a supporting letter from the social worker who has been responsible for his counseling.
In his letter requesting a modification of his sentence, the appellant asserts that the Department of Corrections has established criteria to use in applying 21-4603(4) in its Internal Management Policy and Procedure No. 011-114 (hereinafter I.M.P.P. 011-114). This Internal Management Policy and Procedure of the Department of Corrections is the subject of this appeal.
The appellant pursued a recommendation for sentence modification because he believed he met 9 of the 12 criteria that would support such a recommendation. It is the appellant’s belief that the I.M.P.P. only requires an inmate to meet 2 of the 12 criteria in order to receive a recommendation for sentence modification. The appellant’s request for a recommendation of sentence modification met with no success at the program review level. The program classification committee members denied the appellant’s request for a recommendation of sentence modification, stating that his sentence was “not of a nature to be considered for a sentence reduction” and that his “sentencing was not of an extraordinary nature.”
The appellant filed a grievance, which was denied by the institutional director for the Osawatomie Correctional Facility on May 23, 1990. The conclusions made by the Director were:
“The comments of Corrections Counselor Marsh and Captain Sled on the inmate’s Program Review indicate that they do not consider the inmate to be an appropriate candidate for a recommendation for sentence modification. If they felt that he was only then would they be required to utilize the criteria and demonstrate why.”
The comments of Corrections Counselor Marsh and Captain Sled were “use of the statute is to be for cases of ‘extraordinary nature, and shall be exercised sparingly.’ ”
The appellant filed an appeal of that grievance denial with the Secretary of Corrections. That appeal was denied on May 31, 1990, when the Secretary said that he concurred with the Principal Administrator’s response. Thereafter, on July 9, 1990, the appellant filed a petition for writ of habeas corpus with the District Court, of Miami County pursuant to K.S.A. 60-1501. On December 19, 1990, the district court denied the petition for writ of habeas corpus after a hearing.
The appellant has timely appealed, raising the same issues to this court. The first issue is whether the State has created. a liberty interest protected by the Fourteenth Amendment to the United States Constitution by enacting 21-4603 and authorizing the. Secretary to promulgate .I.M.P.P. 011-114. The second issue is, if such a liberty interest has been created and due process must be accorded to that interest, was the action taken by the Kans.as Department of Corrections arbitrary and capricious and a denial of the constitutional process due appellant?
The Fourteenth Amendment prevents, any state from depriving any person of life, liberty, or property without due process of law and protects him or her from arbitrary action of the government. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459-60, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). The United States Supreme Court has determined, that procedural due process questions must be examined in two steps. Step No. 1 requires asking whether or not there exists a liberty or property interest which has been interfered with by the state, and Step No. 2 requires an examination of the procedures that were attendant upon that deprivation to determine if they were constitutionally sufficient.
“The types of interest that' constitute ‘liberty’ and ‘property’ for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than ‘an abstract need or desire,’ [citation omitted] and must be based on more than ‘a unilateral hope,’ [citation omitted]. Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests ‘may arise from two sources — the Due Process Clause itself and the laws of the States.’ [Citation omitted.]” Kentucky Dept. of Corrections v. Thompson, 490 U.S. at 460.
Kansas has ruled that the Kansas parole statute does not give rise to a liberty interest when the matter before the board is the granting or denial of parole to one in custody. Gilmore v. Kansas Parole Board, 243 Kan. 173, 180, 756 P.2d 410 (1988).
While the United States Supreme Court acknowledged in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), that there is no constitutional right of a convicted person to .be released before the expiration of his sentence, the Supreme Court has recognized that some state laws have created enforceable liberty interests in the prison setting. In Greenholtz, the Court held that despite the subjective nature of the parole release decision, the Nebraska statute in question was written in such a way that it created an expectancy of release which was a liberty interest that was entitled to the protection of the United States Constitution. Greenholtz, 442 U.S. at 12.
Recently in Board of Pardons v. Allen, 482 U.S. 369, 381, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) the Supreme Court recognized that the Montana statute concerning parole was written in such a way that the mandatory language gave rise to a constitutionally protected liberty interest.
There were two amendments to 21-4603 which passed in the 1989 legislative session with significant wording differences. Both amended versions appear in the 1989 Supplements to the K.S.A. However, legislative history reveals that K.S.A. 1989 Supp. 21-4603 was approved April 25, 1989, and superseded K.S.A. 1989 Supp. 21-4603c, which was approved April 18, 1989. L. 1990, ch. 92, § 2; L. 1990, ch. 95, § 5.
K.S.A. 1989 Supp. 21-4603(4) reads as follows:
“The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” (Emphasis added.)
Although 21-4603 was amended three times by the 1990 legislature, the portion of the statute codified as K.S.A. 1990 Supp. 21-4603(5) remains essentially the same as that quoted above:
“The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.” (Emphasis added.)
It seems reasonably clear that K.S.A. 1989 Supp. 21-4603(4) and K.S.A. 1990 Supp. 21-4603(5) are sufficiently similar to the statute at issue in Greenholtz, 422 U.S. 1, that such statute may well be found to create a liberty interest. If either statute does create a liberty interest then it is dependent upon the recommendation of the Secretary of Corrections for a sentence modification. The statute does not direct the court to modify the sentence unless such a recommendation from the Secretary of Corrections has been received.
In the instant case, the appellant was not able to acquire such a recommendation of sentence modification from the Secretary of Corrections and has asserted that he has a liberty interest in receiving that recommendation. He contends I.M.P.P, 011-114 is written in sufficiently mandatory language that a liberty interest in receiving a recommendation for sentence modification is created. Therefore, the central issue in this case is whether the I.M.P.P. creates a liberty interest entitled to due process protection.
The United States Supreme Court, in recognizing that certain state regulations have created liberty interests in parole, in good time credits, in freedom from involuntary transfer to a mental hospital, and in freedom from more restrictive forms of confinement within the prison, has stated:
“The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court’s judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. at 461.
The United States Supreme Court enunciated the following test to determine whether a liberty interest was created by state statutes or regulations.
“Stated simply, ‘a State creates a protected liberty interest by placing substantive limitations on official discretion.’ [Citation omitted.] A State may do this in a number of ways. Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing ‘substantive predicates’ to govern official decision making, [citation omitted] and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. at 462.
With that test in mind we must examine the language of I.M.P.P. 011-114 to determine if it has placed substantive limitations on official discretion and whether it mandates an outcome to be reached upon a finding that certain criteria have been met. It will be helpful to compare the language of the I.M.P.P. with the language of other state statutes and regulations that have been examined by the Supreme Court to determine whether a liberty interest had been created.
I.M.P.P. 011-114 is seven pages long. In its policy section, it states: “The discretion conferred upon the Secretary of Corrections by [K.S.A. 21-4603(4)] is deemed to be of an extraordinary nature and shall be exercised sparingly based on criteria set out in this policy and procedure.”
Following the policy section is a discussion section, where it is explained that these actions for sentence modification recommendations should be “initiated by those who work directly with the inmate and should be well supported by testimony and documentary evidence.” It also states that “[n]ormally a combination of two or more specific reasons” should support the recommendation.
The following procedures section sets out that the director of each facility should generally be the initiator for a recommendation to the Secretary of Corrections. Paragraph 2 of the procedure section states:
“In all cases it shall be required that the modification of this sentence will benefit the inmate in terms of long range and substantial rehabilitation and will not jeopardize the best interest of the public, especially the interest of public safety. Other factors to be considered in making a recommendation of the sentence shall be as follows: . . . .”
Paraphrased, the factors to be considered are: (a) that the inmate has taken advantage of available counseling and programs; (b) that the record of the inmate’s behavior and attitudes indicates a likelihood the inmate can successfully live in society; (c) that the old criminal code punishment does not conform with what would be imposed for a similar offense under the new criminal code; (d) that parole eligibility is established and controlled by statute, and it is not possible for a direct recommendation by the Secretary of Corrections or an adjustment by the Kansas Parole Board to change that parole eligibility date; (e) that the court has since changed its approach in sentencing for this particular crime or there has been a miscalculation in this particular sentence; (f) that an inmate may need special medical or psychiatric treatment which would require a parole to a special treatment center; (g) that the inmate is terminally ill; (h) that the inmate does not qualify for participation in federal programs or work release because of his or her parole eligibility date; (i) that the inmate has suffered a reasonable punishment, which is set out as no less than .10 years for a minimum life sentence, no less than 7 years for a minimum 30-year sentence, or no less than 5 years for a minimum 20-year sentence; (j) that a fundamental change in the inmate has incurred which essentially is that he or she has been rehabilitated; (k) the likelihood that further incarceration will have a regressive effect rather , than a helpful effect on the inmate’s rehabilitation; and (1) that the safety of the public, respect for the criminal law, and the social and family support available to the inmate, etc., indicate that it would be good correctional practice to recommend a sentence modification.
Paragraph 3 of I.M.P.P. 011-114 is somewhat difficult to interpret. It states as follows:
“Except for those cases where the recommendation is based primarily on factors numbered c, e, f, g and h in paragraph 2, a recommendation for a modification of the sentence shall be used only in those cases where the record of the inmate shows that the original sentence as imposed is not currently appropriate based upon factors a, b, d, i, j, k, or 1 considered under paragraph 2.”
It would appear the discretion conferred upon the Secretary of Corrections in making the decision whether or not to recommend a sentence modification is to be based on the criteria that is set out in paragraph 3 according to the policy statement of I.M.P.P. 011-114. While the discussion section indicates that at least two or more reasons shall be present to support a recommendation, it does not imply that when an inmate has met at least two criteria, he or she should receive a recommendation for sentence modification. The procedure section states it is mandatory that a modification has been determined to benefit the inmate in terms of long range and substantial rehabilitation and that modification must not jeopardize the best interests of the public, including public safety, and it lists factors a through 1 that must be considered in making a recommendation for modification of the sentence.
The use of the words “shall be used only in those cases” in paragraph 3 indicates that the Secretary of Corrections should only consider a recommendation when the inmate has been rehabilitated as demonstrated by those factors. It does not seem to indicate that when those factors indicate rehabilitation, a recommendation should be issued at that point. Wording which would indicate that would be, for instance, “a recommendation for a modification of the sentence shall be made when . . . .”
Paragraph 3 does not dictate that the Secretary must make a favorable recommendation after certain events have occurred. It instructs the Secretary that such a recommendation may be made only after certain events have occurred.
I.M.P.P. 011-114 appears to be quite similar to the provisions at issue in Kentucky Dept. of Corrections v. Thompson. In that case the Supreme Court acknowledged that the regulations and procedures provided certain “substantive predicates” to guide the decision maker, but found that the
“regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met. The Reformatory Procedures Memorandum begins with the caveat that ‘administrative staff reserves the right to allow or disallow visits,’ and goes on to note that ‘it is the policy’ of the reformatory ‘to respect the right of inmates to have visits.’ [Citation omitted.] This language is not mandatory. Visitors may be excluded if they fall within one of the described categories [citation omitted], but they need not be. Nor need visitors fall within one of the described categories in order to be excluded. The overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions. Or, to state it differently, the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.” Kentucky Dept, of Corrections v. Thompson, 490 U.S. 454, 456 n. 1, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). .
Kentucky Dept. of Corrections makes clear that the test used by the Supreme Court is two-part. First, are there criteria or substantive predicates which limit the discretion of the decision maker? And, second, does the use of explicitly mandatory language in connection with the establishment of certain criteria force a conclusion that once the criteria are met, a certain result must follow? It seems clear that the criteria established in the I.M.P.P. meets the first prong of this test. Does it also have language that is sufficiently mandatory that it, in essence, tells the decision maker what to do once the criteria have been met? Such sufficiently mandatory language was found in the Montana statute regarding parole by the Court in Board of Pardons v. Allen. The language read as follows:
“ ‘Prisoners eligible for parole. (1) Subject to the following restrictions, the board shall release on parole . . . any person confined in the Montana state prison or the women’s correction center . . . when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community ....
“ ‘(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.’ Mont. Code Ann. § 46-23-201 (1985) (emphasis added.).” Board of Pardons v. Allen, 482 U.S. 369, 376-77, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987).
Another instance in which the court found the language was sufficiently mandatory to find a particular result once the criteria had been met, was in the celebrated Greenholtz case where the Nebraska parole statute was found to create a protected expectation of parole. The relevant statutory language read as follows:
“ ‘Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
(a) There is a substantial risk that he will not conform to the conditions of parole;
(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
(c) His release would have a substantially adverse effect on institutional discipline; or
(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.’ Neb. Rev. Stat. § 83-1,114(1) (1976).” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979).
In Hewitt v. Helms, 459 U.S. 460, 476, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), the Supreme Court found that the language used in the Pennsylvania statute was also sufficiently mandatory to create a protected liberty interest in remaining in the general prison population.
In contrast, the Supreme Court found in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981), that no liberty interest was created because “[t]he Connecticut commutation statute, having no definitions, no criteria, and no mandated ‘shalls,’ creates no analogous duty or constitutional entitlement.” Again, the unfettered discretion allowed state decision makers in Hawaii regarding whether or not inmates should be subject to interstate transfers supported the Court’s decision that there was no protected liberty interest because there were no substantive limitations on official discretion. “An inmate must show ‘that particularized standards or criteria guide the state’s decision makers.’ ” Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983).
While both of those cases lack any criteria whatsoever to guide the decision maker, Kentucky Department of Corrections makes clear that criteria can exist to guide the decision maker. 490 U.S. at 464-65. But without mandatory language that forces a specific result as a result of meeting the criteria, both prongs of the test are not met and a constitutionally protected liberty interest is not created. While the word “shall” is heavily used in I.M.P.P. 011.114, a fair reading of it does not support the contention that the Secretary of Corrections must make a recommendation for sentence modification upon a finding that certain criteria have been met. Rather, a fair reading of it indicates that the unit team shall make recommendations to the director of the facility who shall make recommendations to the Secretary of Corrections. Presumably, all of these people should base their recommendations on the criteria that are set out in the I.M.P.P. There must be at least two criteria which have been met before a recommen dation can be made unless there are certain specified circumstances such as the terminal illness of an inmate.
It would seem that the most plausible interpretation of I.M.P.P. 011-114 is that it gives the Director or the Secretary guidelines that must be met before they can consider making a recommendation. This is quite different from setting forth criteria which, once it has been met, forces the Secretary of Corrections to make a recommendation for sentence modification. The latter would be in direct conflict with the policy of the statement: “[T]he discretion conferred upon the Secretary of. Corrections by this statute is deemed to be of an extraordinary nature and shall be exercised sparingly based on criteria set out in this policy and procedure.”
In that the applicable statutes and regulations do not create the liberty interest claimed by the appellant, we need not address the issue of whether he was denied due process in not receiving it.
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Rulon, J.:
Everett Tinsley, defendant, appeals his jury conviction of possession of marijuana with the intent to sell, K.S.A. 1990 Supp. 65-4127b(b)(3), contending the district court erred in failing to suppress evidence.
We conclude the findings of the district court supporting its decision not to suppress the evidence are based upon substantial evidence, and we will not substitute our view of the evidence for that of the district court. State v. Brunson, 13 Kan. App. 2d 384, 389, 771 P.2d 938, rev. denied 245 Kan. 786 (1989). In so holding, we adopt the “open fields exception” to the Fourth Amendment as enunciated in Oliver v. United States, 466 U.S. 170, 178, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984) (Powell, J., concurring).
UNDISPUTED FACTS
On July 13, 1989, Allen County Undersheriff Joe Robinson, KBI Special Agent Thomas Williams, and Alcohol, Tobacco, and Firearms Agent Chuck Freyermuth went to defendant’s rural residence to speak with him about a drug investigation concerning another individual. When the officers arrived at defendant’s house, they saw the door was padlocked from the outside. There was no response to a knock on the door, although the officers could hear noise from a television inside the house. They then went to the house’s back door, which was also padlocked. Knowing Tinsley had no vehicle and that the television was playing, Robinson thought Tinsley had to be somewhere on the premises.
Robinson thought defendant could be behind or in one of the sheds located on the property. A few feet to the southeast of the house was a small storage shed. Just east of this shed was an old dairy barn. East of this barn and attached to it was a long cattle shed. Between the storage shed and the barn was a well-worn path, which was described as “kind of a driveway that goes into an open field.” There were no fences on the property. Robinson walked between the storage shed and the barn, yelling defendant’s name. When Robinson reached the edge of the field behind the buildings, he looked to his left and saw “numerous marijuana plants growing.”
After a closer inspection of the plants, Robinson left to obtain a search warrant. The other two officers remained at the residence and when defendant returned, he consented to a search of the house and told the officers of other fields where marijuana was growing.
At the suppression hearing, Robinson testified that prior to the discovery of the marijuana plants, defendant told Robinson he had a few marijuana plants; Robinson told defendant if law enforcement officers found marijuana plants on his property in the future he would be charged. On July 13, however, Robinson had no knowledge where any plants would be growing on defendant’s property. Standing at the defendant’s house, the plants were not visible, but were visible only at the edge of a field about 45 to 60 feet behind the house.
Thomas Williams, testified at the suppression hearing that in his opinion, not much effort was made to hide the plants. Anyone crossing the field behind the sheds could see the plants, although they could not be seen from the road or the immediate area surrounding the house.
The district court denied the motion to suppress, concluding: The Fourth Amendment does not apply to open fields because there is no reasonable expectation of privacy in those fields; the field at issue here is not within the defendant’s curtilage and thus is not protected by the Fourth Amendment; and the mere fact of an unlawful trespass by law enforcement officers onto the open field does not create a search condemned by Fourth Amendment protection.
OPEN FIELD DOCTRINE
On appeal, defendant’s counsel fiercely argues the language and history of § 15 of the Kansas Bill of Rights prohibits warrantless searches of open fields, absent exigent circumstances. He further asserts other jurisdictions use state constitutional provisions to reject or modify the Oliver open fields doctrine. Even if the open fields doctrine is applicable in Kansas, defendant asserts his marijuana plants were growing in an area in which he possessed a reasonable expectation of privacy as part of his home’s curtilage, which is protected by the Fourth Amendment. We disagree with defendant’s contentions.
Our Supreme Court has said: “The effect of [§ 15 of the Kansas Bill of Rights] is identical to that of the Fourth Amendment to the United States Constitution.” State v. Flummerfelt, 235 Kan. 609, 618, 684 P.2d 363 (1984). “The wording and the scope are identical for all practical purposes.” State v. Bishop, 240 Kan. 647, 656, 732 P.2d 765 (1987). See State v. Fortune, 236 Kan. 248, 250, 689 P.2d 1196 (1984) (§ 15 and Fourth Amendment “usually considered to be identical”).
The Fourth Amendment protection of “ ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Hester v. United States, 265 U.S. 57, 59, 68 L. Ed. 898, 44 S. Ct. 445 (1924). The Fourth Amendment protection against unreasonable searches and seizures, however, does extend not only to a residence, but to the area surrounding the residence which is referred- to as the curtilage. State v. Basurto, 15 Kan. App. 2d 264, 266, 807 P.2d 162 (1991). Kansas recognizes this curtilage doctrine. 15 Kan. App. 2d at 268.
The Fourth Amendment does not extend to open fields because “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Oliver v. United States, 466 U.S. at 178.
“[Ojpen fields” may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither “open” nor a “field” as those terms are used in common speech.’ ” United States v. Dunn, 480 U.S. 294, 304, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987); Oliver, 466 U.S. at 180 n.11. Furthermore, because “[t]he existence of a property right is but one element in determining whether expectations of privacy are legitimate,” a governmental intrusion upon an open field that is a trespass at common law does not transform that intrusion into a search for Fourth Amendment purposes. Oliver, 466 U.S. at 183.
Oliver was a consolidation of two cases where the defendants challenged on Fourth Amendment grounds searches of areas which uncovered marijuana. 466 U.S. at 173-74. In one case, law enforcement officers walked around a locked gate posted with a “No Trespassing” sign. They followed a footpath for several hundred yards. At one point, someone shouted to them, “No hunting is allowed, come back up here.” Continuing, the officers eventually found marijuana growing over a mile from the defendant’s home. 466 U.S. at 173. In the other case, officers entered the woods behind the defendant’s house, following a path between this and another residence, until they reached two marijuana patches surrounded by chicken wire fences. 466 U.S. at 174. The Oliver court held both searches valid, as they occurred in open fields not subject to Fourth Amendment protection from unreasonable warrantless searches. 466 U.S. at 184.
In our case, the issue becomes whether the area where defendant was growing his marijuana was within the curtilage of his residence. If it was not within the curtilage, then it was an open field and defendant was not entitled to constitutional protections against the officers’ discovery of his marijuana.
In our determination of whether an area is included within the curtilage of a residence, the central component is whether the area harbors the intimate activity associated with the sanctity of a person’s home and the privacies of life. Dunn, 480 U.S. át 300. Four factors have particular pertinence to the curtilage determination: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. 480 U.S. at 301; State v. Waldschmidt, 12 Kan. App. 2d 284, 290, 740 P.2d 617, rev. denied 242 Kan. 905 (1987).
In Dunn, thé United States Supreme Court concluded the area of á warrantless intrusion by government agents was not within the curtilage of the defendant’s ranch house. 480 U.S. at.296. The 198-acre ranch was completely encircled by a perimeter fence. Several interior fences of posts and barbed wire were also on the property. The house was about one-half mile from a public road; it and á small greenhouse were encircled by a fence. About 50 yards from this fence were two barns. One barn, the area of the intrusion, was encircled by a wooden fence with locked, waist-high gates. Netting was stretched from the barn roof to the top of the gates. 480 U.S. at 297.
In Waldschmidt, this court concluded a fenced yard that was the subject of a governmental intrusion was within the curtilage. 12 Kan. App. 2d at 290. The yard was behind and immediately adjacent to the residence. It was surrounded by a six-foot high fence of a wooden stockade-type which obstructed the view ;of the yard. The law enforcement officer scaled the fence, placed his arm and flashlight over the fence, and observed marijuana plants. 12 Kan. App. 2d at 286.
Our consideration of the four factors listed in Dunn and Waldschmidt in light of the evidence presented here leads us to the conclusion that substantial competent evidence supports the-district court’s denial of the defendant’s suppression motion. We are convinced the area where defendant was growing his marijuana was not within the curtilage, but was an open field.
In considering the proximity of the area where marijuana was growing behind the cattle shed and barn to defendant’s house, the testimony indicates the distance to be between 45 to 70 feet. While the district court found the distance to be greater than this, the photographs on which the court based its judgment of the distance are not in the record on appeal. Although 70 feet is a short distance and the area could be said to be in close proximity to the house, our consideration of the other three factors outweighs the area’s closeness to defendant’s house.
The area defendant claimed to be curtilage was not included within any enclosure surrounding his home. In fact, it was undisputed that no fences or enclosures of any kind were present on the property rented by defendant. Nor did the defendant present any evidence showing the nature of any uses to which the barn and cattle shed were put. Although one of the officers testified he knew that defendant was using the storage shed, there was no evidence that defendant used the barn and cattle shed behind which the marijuana was growing. While such structures could often be presumed to be used in the “intimate activity” of a rural farm home, there is no indication defendant was engaged in activities utilizing such structures and surrounding areas.
Finally, defendant took no measures to hide the area behind the barn and cattle shed from observation by persons walking nearby. Unquestionably, the growing area could not be seen from the road passing in front of defendant’s house or from the area immediately behind the house. But defendant did nothing to block the view of persons happening to walk down the path between the storage shed and barn to the field behind these buildings and the cattle shed. Nor was the marijúana concealed from the field behind the buildings. Anyone approaching the building site from this field could easily see the marijuana. We are completely satisfied the area in which the marijuana was growing was not part of the curtilage, but an open field outside of the protective ambit of the Fourth Amendment.
In light of the above, the district court did not err in denying the defendant’s motion to suppress.
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Pierron, J.:
Jeffery L. Hill appeals his jury conviction for aggravated robbery, K.S.A. 21-3427.
Hill was charged with the aggravated robbery of Erie C. Bergstrom, Jr. Named as a codefendant in the complaint was Steven Fitch, who pleaded guilty.
At Hill’s trial, Bergstrom testified that on March 17, 1989, he went to a bar in Wichita called Baby Dolls. While he was there Hill and Fitch came in and sat next to him at the bar. When Bergstrom got up to leave, he first went into the restroom. Hill and Fitch followed him. Bergstrom then went to his car. While he was putting the key in the car door, he was struck over the shoulder. He turned and saw Hill and Fitch. Both men continued to strike and kick him and both were yelling, “Give me your wallet.” The men took his wallet and fled. He ran inside and told the people in the bar to call the police.
Hill testified that he and Fitch went into Wichita, from Augusta, during the afternoon of March 17. They went to Baby Dolls, where Hill sat next to Bergstrom and talked with him. Hill and Fitch left together, with Fitch in front. When they got outside, Hill saw Fitch run around the back of a car and hit Bergstrom. Bergstrom and Fitch began to fight. Hill separated them. While Hill was standing between Fitch and Bergstrom, Bergstrom charged Hill with his head down. Hill then hit Bergstrom four times and kicked him twice. Hill denied robbing Bergstrom or having any knowledge that Fitch stole the wallet. Hill spoke with Fitch at their preliminary hearing, and Fitch admitted to him that he had stolen the wallet and smuggled the money into his cell.
Jerry Caudle, a friend of both Fitch’s and Hill’s, testified that Fitch told him he had taken the wallet. Fitch told Caudle that it happened so quickly that he had no idea whether Hill knew Fitch had taken the wallet.
Fitch testified that he took the wallet from Bergstrom while Hill was kicking Bergstrom. Fitch took all the money from the robbery, giving none to anyone else. Clifford Carter, a cellmate of both Fitch’s and Hill’s, testified that Fitch told him he was going to place all the blame on Hill because the wallet was found in Hill’s truck. Hill told Carter that he was there when the robbery occurred but had not taken the money.
After the presentation of all the evidence, Hill requested that the jury be instructed on battery as a lesser included offense of aggravated robbery. The trial court refused to give the instruction. Hill was convicted and sentenced to 10 to 40 years’ imprisonment pursuant to the Habitual Criminal Act. A motion to modify sentence was denied. Hill timely appealed. The sole issue on appeal is the trial court’s refusal to instruct the jury on battery.
K.S.A. 21-3107(3) requires the trial court to instruct on “all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.” Among those crimes considered included offenses is “a crime necessarily proved if the crime charged were proved.” K.S.A. 21-3107(2)(d).
Aggravated robbery is “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427. Robbery is “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3426. Battery is an “unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.” K.S.A. 21-3412.
The Kansas Supreme Court has held that battery and aggravated battery are not lesser included offenses of the crimes of robbery or aggravated robbery. State v. Warwick, 232 Kan. 232, 654 P.2d 403 (1982). In arriving at this decision, the Supreme Court only compared the statutory elements of the crimes. It reasoned:
“[U]nder the statutes neither robbery nor aggravated robbery require bodily contact or the actual application of force to the person of another as a necessary element for the commission of those crimes. The State may prove the crime of robbery or aggravated robbery without proving that the robber actually touched or applied force to the person of his victim. Thus, the crimes of battery and aggravated battery are not lesser included offenses of the crimes of robbery or aggravated robbery and, therefore, it is not necessary for a trial court to instruct on those crimes as lesser included offenses.” 232 Kan. at 235-36.
Five years after Warwick, the Kansas Supreme Court stated that the test for determining whether a crime was a lesser included offense under K.S.A. 21-3107(2)(d) is not limited to comparison of the statutory elements. State v. Adams, 242 Kan. 20, 22, 744 P.2d 833 (1987). Instead, the court issued the following two-prong test:
“First, the statutes defining the lesser offense and the greater offense must be compared to determine if all the elements of the former are included in the latter. Second, if that comparison fails to disclose an ‘identity of elements’, then the court must examine the complaint/information to determine if the elements of the lesser offense are alleged, and if proof thereof is required to establish the greater offense. If it is, then it is a lesser included offense within the meaning of subparagraph (2)(d).” 242 Kan. at 23-24.
Under the first prong of this test, battery is not a lesser included offense of aggravated robbery for the reason stated in State v. Warwick. Aggravated robbery can be committed by not actually touching the victim, if it is accomplished by threat of force and use of a dangerous weapon,
However, Hill argues that he was entitled to the instruction under the second prong of Adams.
In State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), Justice Holmes attempted to bring some clarity to the issue of lesser included offenses. He described the process of determining lesser included offenses as follows:
“The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular, lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.
“The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an ‘included crime’ under the definition in 21-3107(2)(d).” 243 Kan. at 368.
The complaint/information in this case, in appropriate part, reads as follows:
“Steven J. Fitch and Jeffery L. Hill did then and there unlawfully, willfully, take the property, to-wit: a wallet containing United States monies and identification from the person of or in the presence of Erie C. Bergstrom, Junior, by force against the person of Erie C. Bergstrom’ Junior, and by inflicting bodily harm upon a person, to-wit: Erie C. Bergstrom, Junior, in the course of such robbery.”
Battery is defined in K.S.A. 21-3412 as “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.”
The evidence presented by both sides in this case was that Hill helped beat up Bergstrom. The evidentiary dispute was whether Hill knew anything about the taking of the wallet and its contents from Bergstrom. “[A] defendant is entitled to an instruction on his or her theory of the case even though the evidence is slight and supported only by defendant’s own testimony. [Citations omitted.]” State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987); State v. McLaren, 14 Kan. App. 2d 449, 793 P.2d 763 (1990).
Two of the elements of the clumsily worded complaint/information were that Hill used force against the person of Bergstrom to take property from him. We do not think it can be seriously argued that the absence of the words “in a rude, insolent or angry manner” is significant. The proof of the use of force to accomplish a taking of property from the person of another necessarily proves the application of the force in a rude, insolent, or angry manner. Battery was, therefore, charged and proven as part of the original charge.
The State argues that it can hypothetically prove aggravated robbery without proving battery. It therefore asserts that battery cannot be given as a lesser included offense of aggravated robbery. This ignores Fike. There may be individual cases where battery is an appropriate lesser included offense for aggravated robbery and there will be cases where it is not, depending on the charging document and the evidence produced. To maintain that we ignore the individual facts, notwithstanding that they are set out in the charging document, and determine the appropriateness of lesser included offenses based on nonapplicable hypothetical facts is contrary to Fike, which was decided after Warwick.
The State also contends that since Hill could have (hypothetically) been convicted as an aider and abetter, battery is not a lesser included offense because an aider and abetter need not personally do anything set out in the complaint/information to be convicted. Again, we believe the State is confusing a hypothetical case with what was charged and proven in the instant case. Hill was not charged as an aider and abetter although an instruction on aiding and abetting was given. The State’s position that the giving of a lesser included offense instruction may be stymied by reference to an issue not really involved in the instant case is not sound.
The State cites State v. Burgess, 245 Kan. 481, 781 P.2d 694 (1989), in support of its argument. The citation is inappropriate. In Burgess the defendant was charged with aiding and abetting second-degree murder and the court held that involuntary manslaughter was not a lesser included offense of aiding and abetting second-degree murder. The holding in Burgess was that defendant could not be charged as being a principal through a lesser included offense instruction when he was charged only as an aider and abetter in the charging allegation. The cases are clearly distinguishable.
Hill should have been allowed to have his factual contention of guilt of simple battery submitted to the jury.
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Bullock, J.:
Plaintiff Colorado National Bank-Longmont (CNBL) appeals the district court’s decision determining the ownership interests in a wheat crop between CNBL and defendant Darrell Roths. Three issues are presented.
The facts are essentially undisputed. CNBL loaned money to Charles and Patricia Fegan for farming purposes. CNBL filed suit against the Fegans when it deemed itself insecure on the loan. Roths was added as a defendant because of a possible interest he had in part of CNBL’s collateral,
Roths was the onsite farm manager for the Fegans and took care of the cattle and the crops. In late 1989 or early 1990, the Fegans began having financial difficulties and Roths paid for cattle feed and labor out of his own funds. He told Greg Ludlow, an officer of CNBL, that he could not continue to do this, and Ludlow said, “[D]on’t do anything rash.” In April 1990, Roths learned that neither CNBL nor the Fegans planned to work the ground. Roths asked Ludlow if he could lease the land and plant a 1991 crop. Ludlow cautioned Roths to be careful. Roths leased the land from the Fegans under a crop-share lease with one-third of the crop to be paid to the Fegans as rent. This lease did not apply to any “growing crops as of 1 May 1990.”
The 1990 wheat crop was harvested and sold with the proceeds going to CNBL under its secured interest in growing crops. Roths paid all costs of planting and growing the 1991 wheat crop without any financial assistance from CNBL. Ludlow and Roths did not discuss any interest CNBL might claim in Roths’ share of the 1991 crop. Ludlow did tell Roths that CNBL would have a secured interest in the Fegans’ one-third share of the crop.
In August 1990, Roths filed a motion for compensation for his performance of management services for the Fegans. Roths and CNBL entered into a “Release and Settlement Agreement” on October 4, 1990, covering those services.
CNBL was granted summary judgment and the trial court ruled CNBL had “a first priority perfected security interest in all of defendant, Charles B. Fegan’s growing crops, crops to be grown, ... all crop proceeds, . . . accounts and general intangibles, proceeds of accounts and general intangibles, . . . and is lawfully entitled to the foreclosure of its security interests against all defendants.” No appeal was taken from this decision. In ruling in open court, the judge asked: “[D]oes anybody want me to sign anything, your Motion for Summary Judgment?” Roths’ attorney responded:
“Your Honor, while they’re doing that; in light of what Mr. Gatz said on behalf of Darrell Roths, I want to indicate to the Court, and I’ve talked to both Mr. Gatz and Mr. Taylor; my client, as you know, has been out there taking care of this ground for some time under a written lease dated May 8 of 1990. He has been farming this ground as a lease for a one-third/two-third crop share, and he planted the wheat that is now in the ground, and did so certainly, you know, back in September when there was no — and worked it all summer — when there was no idea whether or not a sale would be had prior to next harvest, July of ‘91. And I just want the Court to be aware, as other counsel are aware, that Mr. Roths claims his two-thirds interest in this crop that’s going to be harvested next July, and I’m sure that we could work out something amicable to all of us to take care of everyone’s concerns. But we just wanted the Court to be aware that that is an issue out there.”
CNBL’s attorney replied: “I guess it would be fair to say that we’re done, but maybe we’re not done.” CNBL’s attorney then asked the court to rule on unrelated motions for the release of funds from previous sales of collateral and nothing further was said about the 1991 wheat crop.
On November 19, 1990, CNBL filed a “Claim of Security Interest/Lien In Growing Wheat Crop.” The claim purported to be “notice to all counsel and their respective parties of CNBL’s continuing claim to all 1991 growing crops.” Roths responded with his claim to the same on November 26, 1990, “by virtue of a Lease Agreement.” The trial court ruled in favor of Roths, finding that CNBL had “acquiesced” in the lease, that CNBL only had a valid lien on the one-third lessor’s share of the 1991 crop, and that to allow CNBL to take the entire crop would result in unjust enrichment.
Preliminarily, we note: “Kansas law properly applies to a claim based on a security interest perfected in Kansas.” Farmers State Bank v. Production Cred. Ass’n of St. Cloud, 243 Kan. 87, Syl. ¶ 2, 755 P.2d 518 (1988).
CNBL first argues its perfected security interest in crops growing or to be grown is superior to an ensuing interest created under a crop-share agreement. Roths counters that CNBL’s se curity interest did not attach to the 1991 crop because no value was given by CNBL for the 1991 crop and the Fegans had no right to the lessee’s two-thirds share of the crop. We agree. In our view, CNBL’s security interest was in the Fegans’ growing crops. Neither the Fegans nor CNBL had an interest in Roths’ two-thirds share of the 1991 crop.
Under a crop-share arrangement, the lessor has an interest in and a lien upon the crop from the time it is planted and the interest only ripens to full ownership upon maturity of the crop. Wiehl v. Winslow, 118 Kan. 147, 149, 233 Pac. 802 (1925). The ownership interest of the lessor goes only to the amount or share due the lessor as rent. 118 Kan. at 149. The Fegans did not, and would not, have an ownership interest in the two-thirds interest in the crop and, because they lacked rights in the collateral, CNBL could not have a security interest attach to that crop. K.S.A. 1991 Supp. 84-9-203(l)(c).
CBL purports to cite First Nat’l Bank v. Milford, 239 Kan. 151, 718 P.2d 1291 (1986), to the contrary. However, Milford is distinguishable. In Milford, the owners of land and growing crops, already subject to a security interest, attempted to “lease” the land and crops to their son in exchange for which he was to make mortgage payments from his one-half share of the proceeds of the crops which the “lease” also purported to transfer. The parents retained all ownership interests in both land and crops. Our Supreme Court understandably held the sham lease did not defeat the bank’s prior perfected security interest.
In the case at bar, only the Fegans’ crops were mortgaged to CNBL. The only interest held by CNBL was in the crops under Article 9 of the Uniform Commercial Code — an act which expressly does not cover security interests in land. K.S.A. 84-9-104(j). Although the security agreement covered all of the Fegans’ crops “growing or to be grown,” it did not and could not cover the Fegans’ interest in the land, which they were free to lease. Accordingly, the trial court was correct to find CNBL’s interest attached only to the Fegans’ one-third interest in the crop in question.
Second, CNBL contends the October 4, 1990, release and settlement agreement bars Roths’ claim. CNBL did not raise this issue in its motion regarding its claim to the 1991 crop, but it did introduce the issue during the March 7, 1991, hearing. Roths asserts CNBL had not made any claim to the 1991 crop as of October 4, 1990, and the claim was not covered by the agreement. We agree.
“The first question, as it is in the construction of any written instrument, is, what was the intention of the parties?” Reynard v. Bradshaw, 196 Kan. 97, 101, 409 P.2d 1011 (1966). Where the intent is clear from the written instrument, no further inquiry is necessary. 196 Kan. at 101.
Without undue elaboration, we have examined the settlement agreement and find it relates to management fees alone. In particular, one clause of the agreement refers to Roths’ motion for management fees. Paragraph 4 states the purpose is to “satisfy ROTHS’ claim for compensation” for Roths’ “protection and preservation of [CNBL’s] collateral.” It is clear from these provisions that the intent of the parties is limited to claims connected to management fees.
Paragraph 6 of the agreement provides that Roths:
“does hereby, release and forever discharge CNBL, its successors and assigns, and each of them, from any and all claims, demands, actions or causes of action, suits at law or in equity of whatsoever kind or nature whatsoever, whether known or unknown, whether contingent or unliquidated, whether for actual, special, consequential or punitive damages, which ROTHS [has], has had or may have against CNBL, which exist or may exist as of the date of this Release and Settlement Agreement.”
CNBL argues this operates to bar any claim Roths asserts against CNBL’s interest in the wheat crop. We disagree. As we have previously held, CNBL never had an interest in Roths’ two-thirds interest in the 1991 wheat crop at issue and Roths is not required to assert a claim to acquire what he already owns.
CNBL’s third and last argument is that Roths’ claim is barred by the doctrine of res judicata (claim preclusion) and/or collateral estoppel (issue preclusion). CNBL asserts the trial court ruled on the issue of ownership of the crops on November 1, 1990, when it found CNBL had a perfected security interest in the Fegans’ crops, growing or to be grown, and that Roths failed to raise the issue before that ruling.
Res judicata requires concurrence of four conditions: “(1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
In the case at bar, there is no identity of the things sued for. In its pleadings and statements prior to November 1, 1990, CNBL asserted and was granted an interest in the Fegans’ crops that were growing or to be grown. As previously observed, the crop at issue was not the Fegans’ but Roths’. CNBL’s first claim against Roths’ crop was when Roths’ attorney asserted the issue on November 1, 1990, and CNBL’s attorney noted the litigation might not be finished. The issue of Roths’ crop was not litigated until March 7, 1991. Roths’ claim is not barred by res judicata.
It is for the same reason that the doctrine of issue preclusion, or collateral estoppel, does not apply. This doctrine requires, inter alia, a prior judgment on the merits. Jackson Trak Group, Inc., 242 Kan. at 690. Roths raised the issue as to the 1991 crop at the summary judgment hearing on November 1, 1990, and even CNBL’s attorney agreed the matter was still open. No ruling was made until March 7, 1991. Roths’ claim is not barred by collateral estoppel.
In summary, we hold CNBL had no security interest in the two-thirds share of the 1991 crop that was planted, grown, and paid for by Roths. The settlement agreement does not bar Roths’ claim to his crop, nor do the doctrines of res judicata or collateral estoppel.
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Brazil, J.:
Joseph Perry appeals his convictions of one count of felony theft, K.S.A. 21-3701; two counts of forgery, K.S.A. 21-3710; and one count of cocaine possession, K.S.A. 1989 Supp. 65-4127a(a). He claims error on the following grounds: (1) that the charges of forgery and theft by deception are multiplicitous, (2) that there was insufficient evidence to support a conviction of cocaine possession, (3) that the court failed to properly instruct the jury regarding possession, and (4) that there was insufficient evidence to support his forgery .conviction. We affirm in part and reverse in part.
1. Multiplicitous charges.
Briefly stated, the evidence supporting Perry’s convictions for theft by deception and delivery of a forged instrument is as follows: Perry went to the Peoples National Bank in Ottawa, introduced himself as Warren Crawford to executive vice-president Dale Dietrich, Jr., talked with Dietrich about buying a truck for Perry’s trucking business, and then transacted business at teller Michelle Parkin’s window before leaving.
Parkin testified that Perry came to her window after leaving Dietrich’s desk, presented a Cummins Cash and Information Services (CCIS) check for $975, and asked her to cash it. Parkin testified Perry told her that Dietrich had verified the check.
CCIS is a third-party billing system for the trucking industry. Truck drivers who stop at truck stops that are part of the CCIS network may present a CCIS check as payment for purchases. CCIS checks may also be cashed at banks. CCIS keeps detailed records of the checks, and the trucking companies reimburse CCIS.
As a general rule, officers at Peoples initial the upper left-hand corner of any check that they approve. The check Parkin accepted was initialed in the upper corner, and the box for verification code was filled in on the check. Parkin .cashed the check and gave Perry the check amount less a $6 check cashing charge. After Perry left Peoples, Parkin looked at the check and realized the initials were not Dietrich’s. She asked Dietrich if he had approved the check, which he had no,t.
Parkin called the CCIS phone number that was on the check but was told the verification number on the check was not the authorized qumber. The check designated it was drawn on the Midwestern Freight Line .trucking company’s account. Midwestern Freight Line, howeyer> had no account with ;CCIS.
Perry was convicted of theft by deception and delivery of a forged iqstrqment. Perry claims the charges of theft by deception and delivery .of a forged instrument are multiplicitous. The State responds the charges are not qiultiplicitous as the forgery charge requires proof of different elements than the theft charge.
“This court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
The double jeopardy provisions of the Fifth Amendnient to the United States Constitution have been made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). The fact an accused is charged with multiplicitous crimes, however, is not in itself a violation of the double jeopardy clause. “The clause merely prevents a defendant from being punished more than once for the same crime.” State v. Freeman, 236 Kan. 274, 282, 689 P.2d 885 (1984).
Two or more separate convictions cannot be carved out of one criminal action. Those charges which make up an integral part of another crime of which the defendant is convicted must be dismissed as multiplicitous. Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127 (1973). The charging of a single offense as two or more separate crimes is improper because a single wrongful act should not be punished more than one time. State v. Brewer, 11 Kan. App. 2d 655, 662, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
The rule against multiplicity is codified in K.S.A. 21-3107, which provides in part:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
Kansas has adopted a two-prong test to determine whether an included crime is a lesser crime or offense under subsection (d). As stated in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988):
“The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.
“The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an ‘included crime’ under the definition in 21-3107(2)(d).”
Under K.S.A. 21-3107, “a person cannot be convicted of two or more separate crimes if one is either a lesser included, or a crime necessarily proved by proof of another crime.” State v. Brewer, 11 Kan. App. 2d at 663-64. K.S.A. 21-3107 defines the right of the State to charge more than one offense based on the same act and to convict of an included offense not specifically charged. “It formulates the limitations upon unfair multiplicity of convictions and prosecutions.” State v. Freeman, 236 Kan. at 281.
To establish theft by deception, the State must prove: (1) that Peoples was the owner of the property; (2) that Perry obtained control over the property by means of a false statement or representation which deceived Peoples, which had relied in whole or in part upon the false representation or statement of the defendant; (3) that Perry intended to deprive Peoples permanently of the use or benefit of the property; (4) that the value of the property was at least $500 but less than $50,000; and (5) that this act occurred on or about the 19th day of March 1990, in Franklin County, Kansas. See PIK Crim. 2d 59.01; K.S.A. 21-3701.
To establish the count III charge of forgery by delivery under K.S.A. 21-3710(b), the State must prove: (1) that Perry issued or delivered a written instrument which he knew had been -rtiade, altered, or endorsed so that it appeared to have been made by Warren Crawford, who did not give such authority; (2) thát Perry did this act with the intent to defraud; and (3) that this act occurred on or about the 19th day of March 1990, in Franklin County, Kansas. See PIK Crim. 2d 59.11; K.S.A. 1990 Supp. 21-3110(9).
Although not raised by Perry on appeal, we note that count III of the complaint charging forgery by delivery erroneously cites to subsection (c) of 21-3710 instead of (b). Perry was aware of the State’s charge, and, absent a showing of prejudice to Perry, an error in the citation is not reversible error. See K.S.A. 22-3201(2).
Intent to defraud is defined as “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” K.S.A. 1990 Supp. 21-3110(9).
Perry argues that in establishing theft by deception, the State relied on evidence that Perry issued or delivered the forged CCIS check to Peoples. That, he claims, is the same evidence or fact scenario relied upon by the State to prove the forgery by delivery conviction.
Perry relies on State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), as an example of the rationale he feels is applicable to the present case. In Coberly, the defendant appealed his convictions of aggravated kidnapping, indecent liberties with a child, and rape, arguing that the charges of indecent liberties and rape were multiplicitous and constituted double jeopardy. The Supreme Court reversed the defendant’s conviction in part, finding that the crime of indecent liberties was “necessarily proved” if the crime charged were proved. K.S.A. 21-3107(2)(d). The court found that, when a man forcibly rapes a girl under 16 years, he has by that act committed both rape and indecent liberties with a child. 233 Kan. at 108.
Perry argues that under the facts of Coberly, the offense of forgery by delivery was “necessarily proved” under K.S.A. 21-3107(2)(d) by proving theft by deception.
The State argues the forgery charge requires proof that Perry issued or delivered a written instrument which he knew had been forged. Delivery of a written instrument is not an element of theft. The State also claims the theft charge requires proof Perry obtained control over property and that he intended to permanently deprive Peoples of the property while the forgery charge does not.
The State is correct that comparing the statutory elements of theft by deception with the statutory elements of forgery by delivery would indicate that forgery by delivery is not an included offense of theft by deception. However, the State fails to apply the second prong of the test as stated in Fike.
In order to prove theft by deception here, the evidence adduced at trial necessarily proved delivery of a forged instrument. Although hypothetically the State may have been able to prove theft by deception without proving delivery of a forged check, this would ignore Fike. There will be individual cases where delivery of a forged check is an included offense of theft by deception and there will be cases where it is not, depending on the charging document and evidence produced at trial. In the present case, the information charged Perry, “willfully and feloniously obtain[ed] by deception [or] control over property . . . with the intention to permanently deprive the owner ... of the possession, use or benefit of said property.”
In proving Perry obtained control over property by deception, the State adduced evidence that Perry delivered a forged check to Peoples. The delivery was necessary for Perry to receive the money. Thus, a review of the charging instrument and evidence at trial shows the State necessarily proved delivery of a forged check when proving theft by deception. Perry’s conviction for delivery of a forged instrument as charged in count III must be reversed as multiplicitous. , • ,
2. Possession of cocaine.
After discovering the problems with the CCIS check, Peoples notified law enforcement. About 15 minutes later, Trooper Andy Thomasson heard on the radio that Ottawa police were looking for a maroon 1979 Chevrolet with a Texas license plate* Thomasson saw a car matching that description. He called the dispatcher and received the license plate number of the car sought and found the license numbers matched. Thomasson stopped the car and told the occupants, Perry and Geraldine Brown; that there was a problem with a check cashed at an Ottawa bank. Perry had no identification but said he was Warren Crawford.
After a few minutes, Doug Waterman of the Franklin County drug enforcement unit, Captain Davis of the Franklin -County sheriffs office, and Merle Taylor, Jr., a detective from the Ottawa department of public safety arrived at the scene. Perry told Taylor he had received the check from an employer. Perry said he did not know the check was not good and wanted to give Peoples its money back. Perry gave Taylor the money, consisting of nine, one hundred dollar bills, three twenties, a five, and four ones. Parkin testified she gave Perry those denominations.
Taylor placed Perry under arrest for felony theft. Brown was later arrested for possession of drug paraphernalia. The officers conducted a preliminary search of the vehicle. Taylor testified that Perry and Brown, the owner of the car, gave him verbal consent to search the car. Brown later signed a written consent to the search.
After the preliminary search, police towed the car to the station and conducted a more thorough search. Police found a small Tylenol bottle containing traces of cocaine in a duffel bag behind the driver’s seat. The bag also contained a razor, shaving cream, and deodorant. The back seat was packed full of men’s and women’s possessions.
Perry contends this evidence is insufficient evidence to establish he knowingly possessed cocaine. The State responds that when viewing the evidence in a light most favorable to the prosecution, a rational factfinder could have found Perry guilty beyond a reasonable doubt.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
To prove possession of cocaine under K.S.A. 1989 Supp. 65-4127a(a), the State must prove that Perry intentionally possessed a nardotic drug known as cocaine. When a defendant is in nonexclusive possession of the premises on which illegal drugs are found, there must be other incriminating circumstances linking the defendant to the drugs. “Whether such circumstances are sufficient to give rise to an inference of possession is a question for the jury.” State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988).
When viewed in the light most favorable to the State, a rational factfinder could have found Perry guilty beyond a reasonable doubt. At trial, there was evidence that Perry was driving the car in which the cocaine was found. The drugs were found in a duffel bag within the passenger compartment of the car. That bag contained men’s toiletries and no women’s possessions. The bag was found behind the driver’s seat. Furthermore, the only other occupant was Brown. These facts are sufficient to . give rise to the inference of possession.
3. Jury instructions.
Perry claims the court erred in failing to instruct the jury that his nonexclusive occupancy of the car could not, by itself, establish possession of cocaine. The State responds the instruction given requiring that the jury find Perry “intentionally” possessed is not clearly erroneous.
The court’s instruction followed PIK Crim. 67.13. It instructed that:
“The defendant is charged in Count XV with the crime of violation of the XJniform Controlled Substance Act of the State of Kansas as it pertains to a narcotic drug known as cocaine. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant possessed or had under his control a narcotic drug known as cocaine;
“2. That the defendant did so intentionally; and
“3. That the defendant did so on or about the 19th day of March 1990, in Franklin County, Kansas.”
Perry did not object to the instruction at trial. Accordingly, the standard of review is well settled.
“A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. [Citations omitted.] The failure to give an instruction is clearly erroneous only if 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. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
“In the trial of a criminal action, the defendant is entitled to have an instruction setting out his theory of defense where there is any evidence whatever to support it.” State v. DeMoss, 244 Kan. at 391. It appears that a theory of Perry’s case was that the cocaine belonged to Brown. Although the instructions given followed PIK Crim. 2d, “[e]ach case has its own uniqueness and patterns frequently need to be modified to cover that special need.” Preface to PIK Crim. 2d. It would have been better in the present case to instruct the jury regarding the requirements of proving possession. This court, however, cannot say that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.
4. Sufficiency of the evidence.
Perry claims there was insufficient evidence to support he made, altered, or endorsed the CCIS check to support his forgery conviction as charged in count II.
“There is a well-recognized presumption to the effect that one who utters or seeks to utter a forged instrument, without any reasonable explanation of how he acquired it, may be presumed to be the person who forged it, or an accessory to the forgery.” State v. Hicks, 11 Kan. App. 2d 76, 81, 714 P.2d 105 (1986).
The evidence shows Perry uttered the forged instrument in question and that he falsely identified himself as the payee. It also showed he falsely informed the teller the check had been approved by Dietrich. The jury apparently chose not to believe his statement to the officers that he had gotten the check from an unnamed individual for whom he had done work. Thus, after reviewing the evidence in the light most favorable to the State, it appears a rational factfinder could have found Perry guilty beyond a reasonable doubt.
Perry’s conviction of forgery by delivery under count III is reversed.
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Briscoe, C.J.:
In a wrongful death action, plaintiffs Elda Dietz, Randy Dietz, Gary Dietz, and Verla McGinnes appeal from the district court’s order granting summary judgment in favor of defendants The Atchison, Topeka & Santa Fe Railway Co., the State of Kansas, the Kansas Department of Transportation, and Horace Edwards, Secretary of Transportation.
Vernon Dietz drove a tractor trailer truck into the side of a slow-moving freight train and was killed instantly. At the time of the accident, Dietz was operating his truck pursuant to authority granted by the Kansas Corporation Commission to Vernon Dietz, d/b/a Dietz Motor Lines. The truck was hauling a nearly empty anhydrous ammonia tanker. Kansas motor carrier safety regulations require drivers hauling hazardous materials to stop their trucks at railroad crossings and to look and listen in each direction before crossing the tracks (K.A.R. 82-4-3[a][3]). Dietz’s truck left more than 300 feet of skid marks before the crossing, indicating he had attempted to stop. An accident reconstruction expert testified the evidence indicated that Dietz realized a train was at the crossing when he was about 500 feet from the track. The crossing was marked with an advance warning sign and an advance pavement sign 872 feet before the railroad crossing, an advance pavement sign 272 feet before the crossing, and a cross buck sign 12 feet before the crossing. The warning signs meet the mandatory minimum requirements listed in the Manual on Uniform Traffic Control Devices (1988).
Plaintiffs brought this wrongful death action, alleging defendants were negligent in failing to place active warning devices such as flashing lights or electronic signals at the crossing that would warn motorists of the presence of a train. In granting defendants’ motion for summary judgment, the district court found that Dietz, a driver of a tanker containing hazardous materials, was negligent per se in failing “to comply with his legally imposed duty to stop, look and listen before proceeding across the crossing” and that the direct and proximate cause of the accident was his failure to stop at the crossing. The court further found that, even if defendants were negligent in some way, as a matter of law, Dietz was 50 percent or more negligent; thus, any recovery was barred under the Kansas comparative fault statute.
Scope of Review
, “Summary judgment is proper where 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. [Citations omitted.] 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 for summary judgment. [Citations omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
To recover for negligence, plaintiffs must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991).
Negligence Per Se
Plaintiffs argue the regulation requiring drivers of hazardous materials to stop, look, and listen before proceeding at railroad crossings is clearly designed to protect the public at large from the dangers of hazardous material accidents and, therefore, violation of the regulation provides neither a private right of action for defendants nor a defense for defendants in an action brought by a driver.
“[V]iolation of a statute alone does not establish negligence per se. The [party alleging negligence per se] must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation. [Citation omitted.]
“Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. [Citation omitted.]” Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., et al., 249 Kan. 348, 370, 819 P.2d 587 (1991).
“[A] statute which does not purport to establish civil liability but merely makes provision to secure the safety and welfare of the public does not establish civil liability.” Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991). Interpretation of a statute is a question of law (NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 [1989]), and this court’s review of conclusions of law is unlimited (Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 [1988]).
K.S.A. 66-1,112(b) and K.S.A. 1990 Supp. 66-1,129 authorize the Kansas Corporation Commission to adopt regulations governing all motor carriers of property or of passengers. Regulations adopted pursuant to these statutes and at issue in this case include K.A.R. 82-4-2 and 82-4-3(a)(3), which require drivers of tankers containing hazardous materials to comply with 49 C.F.R. § 392.10(a) (1990), which states in relevant part:
“Except as provided in paragraph (b) of this section, the driver of a motor vehicle specified in paragraphs (a)(1) through (6) of this section shall not cross a railroad track or tracks at grade unless he first: Stops the vehicle within 50 feet of, and not closer than 15 feet to, the tracks; thereafter listens and looks in each direction along the tracks for an approaching train; and ascertains that no train is approaching.”
49 C.F.R. § 392.10(a)(4) applies to: “Every cargo tank motor vehicle, whether loaded or empty, used for the transportation of any hazardous material as defined in the Hazardous Materials Regulations of the Department of Transportation.” 49 C.F.R. § 172.101 (1990) lists anhydrous ammonia as a hazardous material.
Under the facts of this case, would defendants have an individual right of action against Dietz for violation of the regulation which requires drivers of tankers containing hazardous materials to stop, look, and listen before proceeding across a railroad crossing? In considering this question, we first note the trial court’s conclusion that Dietz was operating as a common carrier is not challenged by plaintiffs on appeal. Further, as regards the existence of an individual right of action against common carriers, K.S.A. 66-176 states:
“Any public utility or common carrier which shall violate any of the provisions of law for the regulation of such public utilities or common carriers shall forfeit, for every offense, to the person, company or corporation aggrieved thereby, three times the actual damages sustained by the party aggrieved, together with the costs of suit, and a reasonable attorney fee, to be fixed by the court; and if an appeal be taken from the judgment or any part thereof, it shall be the duty of the appellate court to include in the judgment an additional reasonable attorney’s fee for services in the appellate court or courts.”
In Beadle v. K.C. Ft. S. & M. Rld. Co., 51 Kan. 248, 32 Pac. 910 (1893), the Supreme Court discussed the 1883 version of 66-176, which contained essentially the same language, but applied only to railroads. The Beadle court stated:
“The purpose of the statute is not merely to punish an, offense against the public justice of the state, but to afford a private remedy to the person injured by the wrongful act. [Citation omitted.] The party aggrieved may recover a greater amount under the statute than at the common law.” 51 Kan. at 252.
More recently, in Western Kansas Express, Inc. v. Dugan Truck Lines, Inc., 11 Kan. App. 2d 336, 339-40, 720 P.2d 1132 (1986), this court noted the Beadle decision favorably and held there was no reason for those seeking private remedy to proceed administratively when seeking damages under the statute. In that case, this court did not specifically address the question of whether 66-176 creates an individual right of action. A plain reading of 66-176, however, indicates the legislature clearly intended to create, on behalf of “any person or corporation” injured as a direct result of a common carrier’s violation of provisions of law regulating common carriers, an individual right of action against the common carrier. This right is in addition to the potential imposition of other penalties. 11 Kan. App. 2d at 341.
If defendants could file an action against Dietz for damages, they could use Dietz’s negligence as a defense in this action. Dietz’s violation of the regulation was negligence per se and the district court did not err in its ruling on this issue.
Proximate Cause
The next question is whether Dietz’s negligence per se was the proximate cause of his damages. Plaintiffs argue defendants were negligent in failing to provide adequate warnings at the crossing and, therefore, a jury question was created as to the proximate cause of the accident.
“The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. [Citation omitted.]
“Whether conduct in a given case is the cause in fact or proximate cause of plaintiffs injuries is normally a question of fact for the jury. [Citation omitted.] However, where the facts are such that they are susceptible to only one inference, the question is one of law and may be disposed of summarily by the court when the plaintiff has failed to establish the necessary burden of proof. [Citation omitted.]” Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987).
In its pretrial order, the district court outlined plaintiffs’ claims:
“Plaintiffs specifically claim that on July 20, 1988, at approximately 10:30 p.m., plaintiffs decedent, Vernon Dietz, was operating a tractor trailer truck, generally east bound on U.S. 36 just outside of Courtland, Kansas. There, he encountered a railroad grade crossing jointly maintained and controlled by defendants. Although equipped with passive warning signs (cross buck signs and advance warning signs), no active warning signals (flashing lights, flashing lights with gates) were present. As such, approaching motorists were not advised of the physical presence of a train occupying the crossing. Factors and criteria known to defendants (or which could have been known upon reasonable investigation and inquiry) dictated the need for active signals at the crossing. Among those factors were the following:
“a. Prior history pf night time vehicular/train collisions similar to the one which resulted in the death of Mr. Dietz.
“b. High vehicular traffic count (985 vehicles per day).
“c. High percentage of heavy commercial vehicles making up the total traffic count.
“d. Frequent use of the crossing by vehicles transporting hazardous materials.
“e. The average incidence of train usage, particularly slow moving trains, “f. The angled approach of the crossing in relation to the roadway which made the approach of trains more difficult to detect.
“g. The absence of illumination at the crossing.
“h. The human factors of motor vehicle operators encountering the crossing.”
As a general rule a pretrial order controls the subsequent course of action unless such order is modified at trial to prevent manifest injustice. Sieben v. Sieben, 231 Kan. 372, 376-77, 646 P.2d 1036 (1982).
Here, there was no objection to the pretrial order and it was not modified. Thus, the essence of plaintiffs’ complaint is that defendants were negligent because there was no active warning that a train was on the track when Dietz drove into the crossing. They are not arguing Dietz did not have adequate warning that the crossing existed. This distinction is critical.
In 1939, our Supreme Court noted: “It is the general rule that when a train is rightfully on a crossing and a motor vehicle is driven into it, with resulting damages, the sole cause of such damages is the fact that the driver of the motor vehicle drove it into the train.” Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 749, 90 P.2d 9 (1939). The railroad has a right to make a reasonable use of a crossing and, ordinarily, the presence of a train on a railroad crossing is of itself an adequate warning to the driver of a vehicle on a highway, and special safeguards need not be employed in the absence of unusual surroundings, conditions, and circumstances. Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, 168, 531 P.2d 22 (1975). This rule has been modified and Kansas now recognizes that “unusually dangerous conditions” can exist where “mere presence of the train on the crossing may not adequately warn users of the highway of the danger in time to avoid a collision.” Waits, 216 Kan. at 170. The critical factor, however, is whether “the motorists’ perceptibility of the train occupying the crossing is substantially impaired through no fault of their own.” Waits, 216 Kan. at 170.
Plaintiffs argue the crossing wgs unusually dangerous because defendants were negligent in failing to install active warnings to alert motorists a train was on the tracks. This position might be valid for that class of motorists who have no statutory duty to stop at every crossing. Dietz, as a driver of an anhydrous ammonia tanker, had a statutory duty to stop, look, and listen before proceeding across the crossing. For the class of drivers who must stop, look, and listen at railroad crossings before proceeding, the presence of a moving train on the tracks blocking the crossing is adequate warning of its presence. As a matter of law, there is no need for any additional warning unless some condition at the crossing would make it impossible for a stopped driver to observe the train blocking the roadway. See Williams v. Union Pacific Railroad Co., 204 Kan. 772, 777, 465 P.2d 975 (1970). While plaintiffs argue the crossing was unusually dangerous because it lacked active warnings and lights, they do not allege there was anything that would prevent a driver stopped at the crossing from perceiving a moving train blocking the road. Active warnings at the crossing to alert Dietz that a train was in fact on the track would have served no additional purpose.
Since the facts in this case “are susceptible to only one inference,” the question of proximate cause was one of law and was properly resolved by the district court. Baker, 240 Kan. at 557. Dietz’s negligence per se was the proximate cause of his accident, and plaintiffs’ arguments to the contrary are rejected.
Comparative Negligence
Plaintiffs argue a jury should have apportioned fault and the district court erred in holding: “Even if there were negligence on the part of one or both of the defendants, as a matter of law the decedent was fifty percent (50%) or more negligent thus barring recovery under the comparative fault statute. (K.S.A. 60-258a.)”
’ Our comparative negligence statute “requires a weighing of the causal negligence, if any, of all parties whose conduct brought about the harm, and the consequent imposition of individual liability for damages based upon the proportionate fault of each party to the occurrence.” Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 844-45, 610 P.2d 1107 (1980). In order for plaintiffs to prevail on this issue, they must have proved defendants were negligent and bore some responsibility for causing the accident by failing to more effectively warn there was a train on the tracks. As plaintiffs have failed to prove defendants had any additional duty to warn beyond the warning presented by the presence of the train on the track, defendants were not negligent and the rules of comparative negligence do not apply.
Plaintiffs rely on Williams, 204 Kan. 772, to support their contention that defendants were negligent and to urge that the trial court erred in granting summary judgment to defendants in this case. Williams was a negligence action filed by a truck driver whose gasoline tanker was struck by a switch engine on a city street during early morning hours. The driver failed to stop, as he was required to do, before crossing the tracks. He did slow his truck to 10 miles per hour before crossing but did not see the train. View of the crossing was obstructed and there were no warning signs posted. The engineer testified he rang the bell and gave the usual crossing warnings as he approached. A jury found for the truck driver and the railroad appealed, arguing the driver was negligent per se because he failed to stop at the crossing as required by law. The Supreme Court found the crossing was unusually dangerous and that the railroad needed to provide additional warnings to motorists.
The present case is distinguishable from Williams. The following are facts which are present in this case, but were not present in Williams: (1) The train was already blocking the intersection. Dietz ran into the train; the train did not hit Dietz. (2) The road approaching the crossing was straight and level and there are no obstructions blocking the view of the crossing. (3) There were advance warning signs that meet the mandatory minimum standards of the Manual on Uniform Traffic Control Devices. (4) Dietz saw the train 500 feet before he reached the crossing and left more than 300 feet of skid marks before the crossing. (5) The complaint here is that the railroad failed to adequately warn Dietz there was a train on the track. In short, the driver in Williams was unable to perceive the train’s presence through no fault of his own, while in this case Dietz perceived the train and collided with it because he failed to stop at the crossing.
Finally, plaintiffs argue defendants could have foreseen “or might reasonably have . . . foreseen” that Dietz would drive through the crossing without stopping; thus, defendants were negligent in failing to give special warnings when a train was on the track. Nevertheless, “[a] railroad company need not anticipate that a motorist will be negligent.” Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 19, 403 P.2d 93 (1965).
Since plaintiffs have failed to prove defendants were negligent, comparative negligence of defendants is not an issue. While the district court erred in implying the railroad and the State might be negligent to some extent, the court’s ruling on summary judgment was correct. “The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason.” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
As we have determined the district court did not err in granting defendants’ motion for summary judgment, the remaining issues need not be addressed.
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Pierron, J.:
Appellant Gerald Wietharn appeals the trial court’s finding that a second injury suffered by him while at work is not compensable due to his failure to report it to his employer.
Mr. Wietharn was the manager of a Safeway Store and was Safeway’s authorized agent to receive employee accident reports at his store. Part of his job was to forward those reports to the district manager. On December 31, 1983, Gerald Wietharn was injured in an accident while at work. His knee was broken and he did not return to work until May 21, 1984. Mr. Wietharn forwarded a report of. the accident in which his knee was broken on the day of the accident.
On June 20, 1984, Gerald Wietharn alleges he was again injured while at work when his previously injured knee gave way as he was lifting a 60-pound case of vegetables, causing him to fall backwards against a pallet where other cases of vegetables were stacked. He alleges that his back was injured in that accident. While Mr. Wietharn told his assistant about the accident, he did not file an accident report until Safeway requested that he do so in October 1985.
On June 29, 1984, Mr. Wietharn visited Dr. Payne, the. orthopedic doctor treating his knee, but the doctor’s notes do not record him as mentioning the accident or injury to his back. When Mr. Wietharn visited Dr. Payne on July 20, 1984, the clinical notes do indicate that he mentioned straining his back while lifting something at the store and having had some discomfort in his low back for a time.
Mr. Wietharn continued to visit Dr. Payne for both his knee and his back until August 1985 when he was released from treatment. The bills and clinical notes were always sent to Safeway’s workers compensation administrator and they were always paid. In July of 1985, Dr. Payne received a letter from Safeway’s attorney telling him payment would no longer be made for treatment to Mr. Wietharn’s back, as the clinical notes indicated: “Unrelated to his knee, the patient continues to have some soreness in his low back.” The attorney did agree that Safeway would pay Dr. Payne’s fees for treatment of the knee injury up to the date of claimant’s last visit. Despite that, payment for Mr. Wietharn’s subsequent visit to Dr. Payne in August 1985, which concerned only his back, was authorized by Safeway’s workers compensation administrator. Mr. Wietharn was released in August 1985 from Dr. Payne’s care. Mr. Wietharn continues to work for the grocery store as store manager.
In response to a request by Safeway, Mr. Wietharn filed an accident report for the June 20, 1984, accident in October 1985. A written claim for compensation was mailéd on December 17, 1985. This litigation ensued. There is no dispute regarding claimant’s December 31, 1983, accident in which his knee was broken.
Safeway and the Kansas Workers Compensation Fund, do contest the June 20, 1984, accident. The administrative law judge awarded claimant a 7.5% permanent partial disability to the body as a whole resulting from the June 20, 1984, accident. The Workers Compensation Director found that the injury to claimant’s back was not a natural result of his knee injury and that it was a separate and distinct injury, unrelated to his knee injury. The Workers Compensation Director also found (1) that claimant did not provide timely notice of the accident within 10 days pursuant to K.S.A. 44-520, (2) that respondents Safeway and Kansas Workers Compensation Fund were prejudiced by the lack of timely notice, (3) that claimant did not serve respondent with a timely written claim for compensation, and (4) that the administrative law judge’s award of 7.5 percent permanent partial disability should be modified to deny any claim since claimant failed to notify the employer, the employer was prejudiced by the lack of timely notice, and the written claim for compensation was untimely.
On appeal to the district court, the findings of the Director of Workers Compensation were adopted by the court. Mr. Wietharn timely .perfected this appeal.
The standard of review is quite clear in workers compensation cases. The appellate court may substitute its judgment only when reviewing questions of law. Reeves v. Equipment Service Indus tries, Inc., 245 Kan. 165, 176, 777 P.2d 765 (1989). When reviewing questions of fact, the appellate court should determine whether the judgment of the district court is supported by substantial evidence. The evidence should be viewed in the light most favorable to the prevailing party below and “if there is substantial evidence to support the district court’s factual findings, the appellate court has no power to weigh evidence or reverse the final order of the district court.” Baxter v. L. T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987). In workers compensation cases, “substantial evidence” means “evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved.” Baxter, 241 Kan. at 591. This court may not disturb the findings of fact of the district court even if this court feels the weight of the evidence as a whole is contrary to the district court’s findings as long as those findings are supported by substantial competent evidence. Dieter v. Lawrence Paper Co., 237 Kan. 139, 145, 697 P.2d 1300 (1985).
The first issue presented to us is whether the employer received notice or had actual knowledge of the accident within the statutory time frame in the absence of a written notice.
Claimant has appealed the director’s decision, as adopted by the district court, that Safeway did not have notice of his accident on June 20, 1984. The relevant statute states:
“Proceedings for compensation under the workmen’s compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the date of the accident Provided, That actual knowledge of the accident by the employer or his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.” K.S.A. 44-520.
The fact that claimant did not contact his district manager with an accident report within 10 days of June 20, 1984, is not contested. Claimant did, however, tell his assistant. The appellant cites Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 356 P.2d 804 (1960), to support the argument that knowledge of the assistant is sufficient. However, the injured employee in Cross gave notice to his superior — a foreman.
Claimant’s primary argument is that as the store’s authorized agent to receive notice of employee injuries, he, of course, had actual knowledge of his own accident. If the authorized agent had actual knowledge of the accident then the statute does not require notice.
Whether the authorized agent’s actual knowledge of his own accident waives the statutorily required notice to the employer has never been addressed by the Kansas courts. Certainly, the plain language of the statute does not make an exception for situations in which the authorized agent is also the claimant. The clearest interpretation of the statute would be that actual knowledge waives notice even if the authorized agent is the injured employee. “ ‘[W]hen a workers’ compensation statute is subject to more than one interpretation, it must be construed in favor of the worker if such construction is compatible with legislative intent.’ ” McGranahan v. McGough, 15 Kan. App. 2d 24, 25, 802 P.2d 593 (1990), reversed on other grounds 249 Kan. 328, 820 P.2d 403 (1991). It would be more favorable to the worker if the statute were construed to allow actual knowledge by the injured authorized agent to effectively waive the statutorily required notice. However, would it be compatible with legislative intent? The purpose of this statute “is to afford the employer an opportunity to investigate the accident and to furnish prompt medical treatment.” Pike v. Gas Service Co., 223 Kan. 408, 409, 573 P.2d 1055 (1978).
If an authorized agent had knowledge of his own injury but did not forward such knowledge to the employer, then the purpose of the statute would be defeated and the result would effectively be strict liability on behalf of the employer. Since the legislature intended employers to have an opportunity to investigate reports of accidents, such a result would not be consistent with legislative intent. The claimant/authorized agent clearly has a conflict of interest and could innocently worsen his or her condition by not seeking proper medical care promptly or could actually deceive the employer.
Although claimant in this case may have believed that his June 20, 1984, accident was a continuation of his December 31, 1983, accident and that a new report was not necessary, claimant was well aware of the reporting requirement. His report of his knee injury on December 31, 1983, proves this. Claimant argues that if another employee had been injured and the authorized agent had neglected to tell the employer about the accident, the employee would still be covered. Claimant is correct, but this argument ignores the statute’s purpose (immediate investigation and prompt medical care) and the claimant’s possible conflict of interest.
Our research found only one case in the United States that directly addressed this issue. Under a similar statute, the Montana court in Hunt v. Sherwin Williams Co., 191 Mont. 348, 624 P.2d 489 (1981), held that where claimant failed to give notice of an injury, employer had no actual notice, and employer could not protect itself by investigating and providing treatment, knowledge by claimant did not constitute actual knowledge by the managing agent or superintendent even though claimant was manager of the paint store. Accord Renco, Inc. v. Nunn, 474 P.2d 936 (Okla. 1970) (president and manager of corporation acting as both employer and employee, injured at work and selecting his own doctor, without notice to workers compensation insurer, cannot operate to toll one-year statute of limitations).
In the instant case, there is conflicting testimony over the circumstances surrounding the June 20, 1984, accident. The notes of the doctor treating claimant did not report the injury in the same manner as claimant does. Additionally, reference to a back injury does not appear in the doctor’s notes of an appointment nine days after the accident and is only mentioned one month later. There is also conflicting testimony by the claimant himself about the number of hours claimant worked before and after the accidents and the reason therefor (slowdown in business versus too injured to continue doing all the same duties). The purpose of notice is to allow investigation of such inconsistencies. Claimant also claims that the employer had actual knowledge of the accident through the clinical notes sent by Dr. Payne to the workers compensation administrator. Even if this was sufficient to give notice, which is questionable, it was well beyond the 10-day limit.
We find that the employer did not receive notice of claimant’s accident in ■ a timely fashion and that actual knowledge by an authorized agent of his or her own accident does not constitute the “actual knowledge” contemplated by the statute.
We should also note that whether there was notice of the injury as required by 44-520 is a question of fact, and the appellate court should generally accept the district court’s finding. Pike, 223 Kan. at 409.
The next issue is whether the employer has been prejudiced by the lack of notice. This is a question of fact and the appellate court will only review the district court’s finding to determine if sufficient evidence supports that finding. Gales v. Kiewit Sons’ Co., 184 Kan. 573, 576, 337 P.2d 669 (1959). In this case, the employer received a formal report of the accident in October 1985, at least sixteen months after the injury. Claimant had already been released from medical treatment and any investigation would most certainly be hampered by the time difference. No notice can be claimed prior to the forwarding of the July 20, 1984, physician’s notes. Sufficient evidence does exist to support the district court’s finding of prejudice.
A related issue is whether a written claim was timely made for the accidental injury of June 20, 1984.
As required by K.S.A. 44-520a, a claimant must make a timely written claim for compensation. The relevant provision reads:
“(a) No proceedings for compensation shall be maintainable under the workmen’s compensation act unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within two hundred (200) days after the date of the accident, or in cases where compensation payments have been suspended within two hundred (200) days after the date of the last payment of compensation; or within one (1) year after the death of the injured employee if death results from the injury within five (5) years after the date of such accident.”
Claimant contends he made written claim in one of two ways:
(1) By seeing Dr. Payne and instructing him to bill the workers compensation carrier he made timely written claim for compensation, and/or
(2) he filed a report of an accident on October 21, 1985, and wrote a letter to counsel for Safeway Stores in. December 1985, both of which are within 200 days after the date of the last payment of compensation.
The answer to whether either possible claim was, in fact, a written claim can be found by reference to Sparks v. Wichita White Truck Trailer Center, Inc., 7 Kan. App. 2d 383, 642 P.2d 574 (1982). The Sparks court held that “the issue is whether the medical care was authorized, either expressly or by reasonable implication. If the claimant receives medical care with the reasonable expectation of payment by the employer the care is ‘compensation’ when rendered even though it may never be paid for.” 7 Kan. App. 2d at 385-86. The district court adopted the findings of the Director of Workers Compensation, who expressly found “the respondent did not knowingly pay for any compensation or medical treatment for an alleged back injury.”
The question of whether a written claim was timely filed is primarily an issue of fact and should not be disturbed if supported by substantial competent evidence. Morgan v. Inter-Collegiate Press, 4 Kan. App. 2d 319, 321, 606 P.2d 479 (1980). While the director and district court could have held that, if a workers compensation carrier pays doctor’s bills, it should be held to know what it is paying for, they did not so hold. They found that since the bills were identified as bills for “12-31-83/knee,” the payment of them did not constitute knowledge of payment for treatments to claimant’s back. This finding is supported by substantial competent evidence and should be left undisturbed.
The final substantive issue presented by claimant is whether claimant’s back injury of June 20, 1984, occurred as a natural and probable result of his knee injury of December 31, 1983.
Claimant alleges his weakened knee gave way, causing his fall on June 20, 1984. From the treatment given a similar question in Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 262-63, 505 P.2d 697 (1973), this would appear to be a question of fact. In Stockman, the court reviewed the record to determine if it disclosed sufficient competent evidence on which the trial court could base a finding that the claimant suffered a new injury rather than a continuation of the first injury. Stockman, 211 Kan. at 260. In that case the claimant injured his back at work. One day after being released to return to work, the claimant reinjured his back at home. The court found the second injury was a new injury despite the fact that the same body part was injured only one day after claimant was considered well enough to return to work. Stockman, 211 Kan. at 261-63.
Of primary importance in the instant case is the fact that an entirely different body part was injured. While Dr. Payne’s clinical notes indicate that claimant indicated as early as March 1984 that his knee tended to give way and Dr. Payne testified that it was possible claimant’s knee could and would give way in the future, such testimony does not necessitate a finding that the second accident was a natural and probable result of the first accident. The claimant argues that his weakened knee caused his fall and, as such, the second injury is a natural result. We believe this approach was rejected in Stockman.
“This argument is based on the rule in Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264, where we said:
‘When a primary injury under the Workmen’s Compensation Act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.’ (Syl. ¶ 1.)
“The rule in Jackson is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in the instant case. The rule in Jackson would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” Stockman, 211 Kan. at 263.
Finally, we are asked to determine whether claimant is entitled to reimbursement for unauthorized medical expenses of $350 for one accident, as the trial court held, or $700 for two separate accidents/claims in the amount of $350 each, as the claimant alleges.
Claimant would like compensation for consulting with a different doctor since Dr. Payne’s rating of his back disability was zero percent. K.S.A. 44-510(c) would seem to authorize this. However, since we find that only the first injury is covered by workers compensation, only one claim can be authorized, and the trial court’s allowance of $350 reimbursement is affirmed.
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Rees, J.:
This is a products liability case. Plaintiff Elite Professionals, Inc., (Elite) a trucking company engaged in the business of interstate transportation of commodities as a common carrier, appeals from the summary judgment entered against it and in favor of defendant Carrier Corporation (Carrier) on Elite’s claim for damages arising out of a truck refrigeration unit malfunction that resulted in the spoilage of a cargo of meat.
Elite seeks to recover for physical damage to property other than the refrigeration unit; compensatory damages are sought for the loss of the meat by spoilage and in the amount of the preincident value of the meat. Recovery is not sought for damage to the refrigeration unit occasioned by its malfunction nor for its defective condition, that is, its qualitative defect, when sold to Elite. A qualitative defect is a defect that precludes the product from being fit for its intended use or functioning as expected for the purpose it was designed. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (10th Cir. 1984).
The refrigeration unit was manufactured by Carrier. It was a new unit when sold to Elite and mounted on an Elite reefer trailer by a Wichita, Kansas, Carrier dealer on July 22, 1987. The obvious function of a truck refrigeration unit of the sort here involved is to chill a reefer trailer’s -interior and its cargo.
In the trial court, Elite’s asserted theories for recovery were strict liability, negligence, breach of express warranty, and breach of implied warranty. Before us, Elite has abandoned reliance upon implied warranty.
The incident giving rise to Elite’s claim occurred in the course of Elite’s transport of a 23-ton load of frozen hog sides from the consignor Vermont Meat Packers, Inc.’s place of business in Swanton, Vermont, to the consignee Far West Meat Company’s place of business in Highland, California.
Jesse Simpson, Elite’s driver for this particular shipment, picked up the hog sides on September 11, 1987, in Vermont. When loaded aboard the reefer trailer, the meat temperature was zero degrees. The meat was to be kept at that temperature until delivered to Far West in California. To accomplish that, the reefer’s interior temperature needed to be kept at zero degrees.
The possibility of a refrigeration problem was first evident to Simpson at about 2:00 p.m. in the afternoon of Wednesday, September 16, 1987, when he made a routine stop at Wilson, New Mexico, to check out his truck. Simpson found that the “T-ticker” gauge on the outside of the reefer reported that the temperature inside the reefer was some three to five degrees above zero. Simpson turned the refrigeration unit’s temperature control down. In addition, he telephoned Elite’s headquarters in Strong City, Kansas, to report the situation to Mark Miller, Elite’s president.
Miller told Simpson to proceed onward from Wilson and to call back. In the meantime, Miller would look into the matter of locating a facility to which the truck might be taken for repair of the refrigeration unit or he would make arrangements for a driver switch, with the new driver to take the load on to its California destination.
When Simpson arrived at Gallup, New Mexico, at about 6:00 p.m., the reefer temperature had risen to about 20 degrees. Simpson reported that development to Miller by telephone. Miller instructed Simpson to continue on to Sanders, Arizona, for a driver switch. Simpson’s log book reports that he. arrived at Sanders at about 7:00 p.m. The switch took place that evening and the new driver, Cíate Watkins, took the loaded reefer trailer to California. Watkins arrived at Far West’s Highland plant when it opened at 7:30 a.m. the next day, Thursday, September. 17, 1987. When the reefer was opened, it was found that the hog sides had spoiled. The reefer temperature had risen to about 60 degrees: The meat was discolored and malodorous. At the instruction of United States Department of Agriculture inspectors, the meat was not offloaded and delivery of the meat was rejected. The spoiled meat was ultimately taken to ai rendering plant.
In the late afternoon of September 17, the reefer trailer was taken to a Fontana, California, Carrier service facility. There it was found that a defective component of the refrigeration unit, a solenoid valve coil, was the cause of the unit’s malfunction. The coil was replaced that same afternoon at no charge to Elite.
When Elite purchased the refrigeration unit, it was given a printed warranty and disclaimer that, in material part, reads:
“MANUFACTURER’S WARRANTY TRUCK/TRAILER REFRIGERATION UNITS
“Carrier . . . through its dealer organization shall, at their facility, during normal working hours, repair or replace with a new or remanufactured part, any parts or components of the [refrigeration unit] . . . which . . . malfunction as a result of defects in material or workmanship. . . .
“THE FOREGOING OBLIGATION IS EXPRESSLY GIVEN IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, WHICH EXCEEDS THE RESPONSIBILITIES SET FORTH HEREIN.
“LIMITATION OF LIABILITY
“Carrier . . . expressly disclaims and denies all liability for SPECIAL, INCIDENTAL,' OR CONSEQUENTIAL DAMAGES or losses of a commercial nature arising out of a malfunctioning product or its parts or com ponents thereof, as a result of defects in material or workmanship. THE OWNER’S SOLE AND EXCLUSIVE REMEDY AND. [CARRIER’S] SOLE AND EXCLUSIVE LIABILITY SHALL, BE LIMITED TO ,THE REPAIR OR REPLACEMENT OF PARTS OR COMPONENTS CONTAINED IN THE [REFRIGERATION UNIT] . . . WHICH . . . MALFUNCTION AS A RESULT OF DEFECTS IN MATERIAL OR WORKMANSHIP IN ACCORDANCE WITH THE APPLICABLE PROVISIONS AND LIMITATIONS STATED ABOVE.”
After discovery was conducted, Carrier filed á motion for summary judgment primarily relying upon its view of the operative effect of the printed warranty and disclaimer. The court granted summary judgment to Carrier. On reasoning that is at some variance from that suggested by either party or' the trial court, we reverse. ' '
When ruling upon the summary judgment motion, the trial court orally stated: '
“The Court- will ’ find' this is a contract' case and' not a'tórt case. . . . [T]here is clear and convincing evidence that the motion for summary judgment should be sustained. [The] Court is going to sustain the motion for summary judgment .... [T]his is strictly under a warranty claim and should not be under a tort claim. . . . [C]ertain steps might have been or should have been taken by [Elite] . . . [w]hich possibly could have resolved these issues . . . [were] not taken and Carrier should not be put in the position of that responsibility. Motion for summary judgment will be sustained.”
Omitting formalities, the journal entry of judgment reporting the trial court’s consideration of Carrier’s motion and its grant of summary judgment to Carrier reads:
“1. On July 24, 1987, Elite Professionals purchased a hew model NDJ425NO-SC-C refrigeration unit manufactured by Carrier Corporation ....
“2. The unit was sold with a Carrier Corporation’s limited warranty which clearly and conspicuously excluded all implied warranties.
“3. The Carrier Corporation’s warranty excluded all special, incidental and consequential damages. '
“4. Given the contract entered into by and between the parties, [Elite’s] claims against [Carrier] were limited to the. contract, and no tort remedies are available to [Elite].
“5. Carrier Corporation’s obligation to Elite Professionals for any defective part was to repair or replace the defective part, and this obligation was fulfilled by Carrier Corporation. ■
“6. There áre no genuine issues of material fact and as a matter of law, Carrier Corporation is entitled to judgment.”
The summary judgment motion hearing transcript and the journal entry of judgment reflect somewhat imperfect compliance with the findings of fact and conclusions of law requirement of K.S.A. 60-252, Rule 141, (1991 Kan. Ct. R. Annot. 117), and Rule 165 (1991 Kan. Ct. R. Annot. 126). For instance, there is no report of the trial court’s, reasoning that this is a contract case and not a tort case. Nonetheless, we conclude that the trial court granted summary judgment on the . ground that the printed warranty and disclaimer operates to preclude Elite from recovery, under any of its asserted theories for recovery.
The printed warranty and disclaimer may be said, to be in the nature of an exclusive express limited remedy warranty. Carrier promises to repair or replace any defective parts or components causing malfunction of the refrigeration unit. In the event of refrigeration unit malfunction, Elite’s sole and only remedy is repair or replacement of defective parts or components according to Carrier’s promise as stated in the printed, warranty and disclaimer. There is no backup remedy clause (e.g., repayment of purchase price). Carrier disclaims all liability for damage or loss arising out of refrigeration unit malfunction beyond or other than its express obligation to repair or replace defective parts or components. There is no liquidated damages clause.
Summary judgment is proper where 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 movant is entitled to judgment as a matter of law. K.S.A. 1991 Supp. 60-256(c); Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). When a summary judgment is challenged on appeal, the record must be read in the light most favorable to the party who defended against the summary judgment motion. 246 Kan. at 702. “It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits.” Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974); Busch v. City of Augusta, 9 Kan. App. 2d 119, 122, 674 P.2d 1054 (1983).
The trial court’s orally expressed determination that “there is clear and convincing evidence that the motion . . . should be sustained” was an insufficient determination upon which , to base its grant of summary judgment. The test to. be met was whether Carrier is entitled to judgment as a matter of law and not whether the evidence, although clear and convincing to the trial court, probably would produce a judgment in favor of Carrier upon trial of the case on its merits before a jury or other factfinder.
Kansas has adopted the doctrine of strict liability, as set out in Restatement (Second) of Torts § 402A (1965). Brooks v. Dietz, 218 Kan. 698, 702, 545 P.2d 1104 (1974). Section 4Ó2A reads:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does .reach the user or consumer without, substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although ,
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Within the § 402A official comments, this appears:
“a. This Section states a special rule applicable to sellers of products. The rule is one of strict liability, making the seller subject to liability to. the user or consumer even though he has exercised all possible care in the preparation and sale of the product. . . . The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.
“/. . . . The rule stated in this Section applies to any person engaged in the business of selling products for use or consumption. It therefore applies to any manufacturer of siich a product, [and] to any wholesale or retail dealer or distributor ....
“m. ‘Warranty.’ The liability stated in this Section does not rest upon negligence. It is strict liability .... The basis of liability is purely one of tort.
. . . [The liability] is not subject to the various contract rules which have grown up to surround [sales of goods].
. . . The rule stated in this Section is not governed by the provisions' ... of the Uniform Commercial Code, as to warranties; and it is not affected by limitations on the scope and content of warranties .... The consumer’s cause of action ... is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer’s hands. In short, ‘warranty’ must be given a new and different meaning if it is used in connection with this Section. It is much simpler to regard the liability here stated as merely one of strict liability in tort.”
We find that, on the record here, there is no basis for a determination that as a matter of law the printed warranty and disclaimer operates to preclude recovery by Elite on the theory of strict liability in tort.
It has been held that the defense of disclaimer is not available in a suit based upon strict liability in tort (Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133, 138-39, [S.D. 1977]); where a dealer is held to be strictly liable in tort, the fact that it disclaimed warranty liability is immaterial (Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 37 Cal. Rptr. 896, 391 P.2d 168 [1964]); and a disclaimer of warranty will not stop a purchaser from recovering under strict liability (Whitaker v. Farmland, Inc., 173 Mont. 345, 355, 567 P.2d 916 [1977]). Further, it has been said that “[s]o far as strict liability of the manufacturer is concerned, no reliance whatever can be placed upon any disclaimer.” Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 799, 833 (1966). “The rule [of strict liability in tort] is not governed by the provisions ... of the Uniform Commercial Code, as to warranties; and it is not affected by limitations on the scope and content of warranties .... The consumer’s cause of action ... is not affected ... by any disclaimer or other agreement. Restatement (Second) of Torts § 402A, Comment m.
Corral v. Rollins Protective Services Co., 240 Kan, 678, 732 P.2d 1260 (1987), is distinguishable; it falls short as support for Carrier’s opposition to Elite’s reliance on strict liability.
In Corral, the parties’ agreement provided:
“ ‘[i]f loss or damage should result from the failure of performance or operation ... of the [Rollins] System, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited to a sum equal to ten (10%) per cent of one year’s service charge, or $250.00, whichever sum is the greater, and that the provisions of this paragraph shall apply if loss or damage, irrespective of cause or origin, results . . . from negligence, active or otherwise, of Hollins, its agents or employees.’ ” 240 Kan. at 680-81.
The Supreme Court affirmed the trial court’s grant of summary judgment for a $250 limited recovery by Corral on the theories of negligence and strict liability.
The now pertinent portion of the Corral opinion deals with the liquidated damages clause in the Corral and Rollins agreement. 240 Kan. at 680-84. (“It is [Corral’s] position that the trial court erred by enforcing the limitation of damages clause, and in not finding the clause violated public policy.” 240 Kan. at 681. “Although this court has not previously dealt with the validity and enforceability of provisions limiting damages in contracts involving fire and/or burglar alarm systems, the vast majority of cases from our sister states dealing with the issue upholds such provisions.” 240 Kan. at 682.) As to strict liability, the Corral decision goes no further than to hold that “[t]he limitation of liability clause is not contrary to public policy and the district court did not err in finding it valid as to the claims based upon negligence and strict liability and limiting Rollins’ liability thereunder.” 240 Kan. at 684. As mentioned, in the case before us there is no liquidated damages clause involved.
Meriting attention are two other matters relating to the subject of preclusion from recovery by Elite under the rule of strict liability.
Within the expression of the strict liability rule set forth in § 402A, there is found the element of “unreasonable dangerousness,” that is, the necessity of an “unreasonably dangerous” defective condition. § 402A provides that “[o]ne who sells any product in a defective condition unreasonably dangerous to the . . . [user or consumer’s] property is subject to liability for physical harm thereby caused to the . . . [user or consumer’s] property.” For Elite to recover under the rule of strict liability in the case before us of course requires that Elite prove the requisite dangerousness of the defective refrigeration unit. By relying upon strict liability, Elite has assumed the burden to prove that the refrigeration unit was unreasonably dangerous to property.
Carrier asserts that there was nothing inherently dangerous about the refrigeration unit here involved. Carrier has not dem onstrated to our satisfaction that on the record before us and as a matter of law the refrigeration unit was not “unreasonably dangerous.” As we see it, whether the refrigeration unit was “unreasonably dangerous” is a fact question for resolution by a factfinder.
Further, threaded through Carrier’s arguments is the assertion that the loss for which Elite seeks recovery is economic loss, or loss “of a commercial nature.” Relying upon that assertion and the principle that recovery for economic loss is not available in an action sounding in tort, Carrier argues that Elite cannot recover for its claimed loss on the theory of strict liability because strict liability sounds in tort.
What sort of losses are economic losses? Jones & Laughlin Steel v. Johns-Manville Sales, 626 F.2d 280, 284 (3d Cir. 1980), approvingly refers to damages for inadequate value, costs of repair, replacement of the defective product, or consequent loss of profits as economic loss. Fordyce Concrete, Inc. v. Mack Trucks, Inc., 535 F.Supp. 118, 120 (D. Kan. 1982), speaks of “’economic losses’ such as loss of use of the truck [the product], loss of profits .. . or the cost of renting a temporary replacement.” Elsewhere in Fordyce, the court approvingly refers to “purely economic losses” as a term including loss of use of the defective product, cost of replacing the product, loss of profits to plaintiffs business, or damage to plaintiffs business reputation from use of the product and observes that the definition is equivalent to the term “commercial losses.” 535 F. Supp. at 123.
The harm for which Elite seeks recovery is not of the same genre as those harms encompassed within the foregoing descriptions. The harm for which Elite seeks recovery is harm to property other than the refrigeration unit itself.
Again, we conclude that the printed warranty and disclaimer here does not preclude recovery by Elite on the theory of strict liability. Recovery under strict liability is not precluded by disclaimer. Recovery is not sought for economic loss or for damage to the product, the refrigeration unit itself.
Carrier’s defense of the trial court’s grant of summary judgment as to Elite’s claim of negligence reveals at least two contentions.
One is that there can be no recovery for economic loss on a claim sounding in tort. We have addressed that contention in our discussion concerning Elite’s strict liability claim. The contention does not pass muster. Elite makes no claim for economic loss.
As we divine Carrier’s arguments, an implicitly urged contention is simply that the preclusion language of the printed warranty and disclaimer encompasses recovery in negligence.
While it is true that the policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced and that contracts freely arrived at and fairly made aré favorites of the law (Kansas City Structural Steel Co. v. L.G. Barcus & Sons, Inc., 217 Kan. 88, 95, 535 P.2d 419 [1975]; Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 559, 426 P.2d 60 [1967]), effective disclaimer of liability for one’s own negligence, waiver of liability of the other party for the latter’s negligence, or indemnification of the other party for its negligence is subject to strict construction and explicit expression.
In Mid-America Sprayers, Inc. v. United States Fire Ins. Co., 8 Kan. App. 2d 451, 455, 458, 660 P.2d 1380, rev. denied 233 Kan. 1092 (1983), this is found:
“ ‘Contracts for exemption for liability from negligence are not favored by the law. They are strictly construed against the party relying on them. . .
“ ‘The rule seems to be that, unless against public policy, a contract exempting liability will be enforced, however, it will be enforced very strictly. In Cason v. Geis Irrigation Co., 211 Kan. 406, 507 P.2d 295 (1973), we said:
“Contracts for exemption from liability for negligence are not favored by the law and are strictly construed against the party relying on them.” . . .
“The general rule is that private contracts exculpating one from the consequences of his own acts are looked upon with disfavor by the courts and will be enforced only when there is no vast disparity in the bargaining power between the parties and the intention to do so is expressed in clear and unequivocal language. ...”
“ ‘ “. . . [T]he law does not look with favor on provisions which relieve one from liability for his own fault or wrong. . . . [CJlauses limiting liability are given rigid scrutiny by the courts . . . ” (Emphasis added.)
Similar statements are found elsewhere.
“[Indemnification for the indemnitee’s own negligence must be clearly and unequivocally indicated as the intention of the parties.” United States v. Seckinger, 397 U.S. 203, 215, 25 L. Ed. 2d 224, 90 S. Ct. 880 (1970). “The general rule is that private contracts exculpating one from the consequences of his own acts are looked upon with disfavor by the courts and will be enforced only when . . . the intention to do so is expressed ip clear and unequivocal language.” Kansas City Power & L. Co. v. United Tel. Co. of Kan., Inc., 458 F.2d 177, 179 (10th Cir. 1972). “[I]f the indemnitee means to throw the loss upon the indemnitor for a fault in which he himself individually shares, he must express that purpose beyond any peradventure of a doubt.” Mostyn v. Delaware, L. & W. R. Co., 160 F.2d 15, 19 (2d Cir. 1947).
In Corral, as previously observed, within the parties’ agreement it was provided that “ ‘[t]he parties agree that if loss or damage should result from the failure of performance or operation ... of the [Rollins] system, that Rollins’ liability, if any, for the loss or damage thus sustained shall be limited . . . and that the provisions of this paragraph shall apply if loss or damage . . . results . . . from negligence ... of Rollins, its agents or employees.’ ” (Emphasis added.) 240 Kan. at 680-81. That, in our view, is a clear and unequivocal expression of exemption from liability for negligence. It is a statement of exculpatory purpose beyond any peradventure of a doubt. No comparable clear and unequivocal language appears in the printed warranty and disclaimer here involved. Because like or comparable language is not within the printed warranty and disclaimer, we conclude that the printed warranty and disclaimer does not, as a matter of law, operate to preclude recovery by Elite on its asserted claim of negligence. Obviously, recovery by Elite for Carrier’s purported negligence remains subject to the necessary proof of liability and damages.
We turn to consideration of Elite’s claim for breach of express warranty. According to the printed warranty and disclaimer, that warranty is a limited repair or replace warranty. From the language of the printed warranty and disclaimer previously set forth, one finds that the terms and conditions of the limited remedy are expressed in this text:
“Carrier . . . through its dealer organization, shall, at their facility, during normal working hours, repair or replace with a new or remanufactured part, any parts or components of the [refrigeration unit] . . . which . . . malfunction as a result of defects in material or workmanship.”
Shortly put, Carrier argues that it satisfied its repair or replace obligation when it replaced the defective solenoid valve coil upon Elite’s first presentation of the malfunctioning refrigeration unit to Carrier. That occurred at the Carrier service facility at Fontana, California — after the refrigeration unit had malfunctioned and the meat had spoiled.
Elite’s position is that the limited remedy failed of its essential purpose thereby freeing it from the exclusivity of the repair or replace remedy. Elite points to K.S.A. 84-2-719(2), where it is provided:
“Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act [Uniform Commercial Code — Sales—Remedies; K.S.A. 84-2-701 et seq.].”
Elite argues that whether the limited remedy failed of its essential purpose is a fact question which, under the circumstances of this case, is for resolution by a factfinder and that the trial court’s entry of summary judgment has improperly deprived it of the opportunity to try that question. We agree.
Without reiterating the evidence, we conclude that the record does not establish as a matter of law the time and place availability to Elite of normal working hours services at a Carrier facility on September 16 and 17, 1987. It strikes us that, because of the printed warranty and disclaimer’s promissory recitation that “Carrier . . . shall, at their facility, during normal working hours, repair or replace [defective parts or components],” the determination of that time and place availability is critical to resolution of the express limited repair or replace promise question, particularly where resolution of that question as a matter of law is undertaken. It strikes us that if that time and place availability was such that remedial repair or replace work by Carrier was unavailable to Elite meaningfully prior to the arrival of the loaded reefer trailer at Far West’s place of business on the morning of September 17, Carrier’s promise was no more than illusory in the context of this case. That consequence reasonably could be found to amount to failure of the essential purpose of the limited remedy.
In the official UCC Comments to K.S.A. 84-2-719, it is said:
“1. Under this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect.
“However, it is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract. . . . [Ujnder subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.” (Emphasis added.)
When Simpson and the loaded reefer arrived at Gallup, the circumstances confronting Elite required it to choose the most expedient reasonable course of action to take to protect its cargo. It appears that the decision made was that, in view of the times and places involved, it was the better choice to get the load to Far West in Hayward directly. The reasoning seems to have been that by making a direct run to Hayward it was more likely that the arrival of the cargo there would be earlier than when assistance at a Carrier service facility might be obtained.
Also arising in this case is the question whether the K.S.A. 84-2-719(2) failure of essential purpose rule is applicable in a situation where the seller is not given the opportunity to repair or replace until after the damage causing occurrence but it does, in fact, repair or replace promptly after presentation of the defective product to it. In the case before us, a fair argument may be made that in the context of the existing circumstances, the limited repair or replace remedy foiled of its essential purpose.
A Wisconsin court was faced with a comparable situation in Phillips Petroleum v. Bucyrus-Erie Co., 131 Wis. 2d 21, 388 N. W.2d 584 .(1986). There, a manufacturer used substandard steel in the fabrication of parts for cranes used in off-shore oil drilling. The parts failed, one crane fell into the sea, and the company was prohibited from using the remaining cranes until the defective parts were replaced. 131 Wis. 2d at 24-25. The court determined the limited replacement or repair remedy failed of its essential purpose. The court noted the purpose of any damage award is to make the injured party whole, and while most often replacement of a: defective part will suffice, it did not in that case. The court further noted that replacement of the parts only “minusculely compensated the purchaser.” The court found it “apparent that the remedy offered by [the] Bucyrus-Erie’s contract . . . provides damages that are, in the circumstances, unconscionably low.” 131 Wis. 2d at 39.
We conclude the fact that the seller is first given the opportunity to repair or replace after the harmful occurrence does not, standing alone, bar recovery for failure of essential purpose at least in those instances where the outcome of the repair or replacement leaves the user in the position of one who has been afforded an unconscionably inadequate remedy, that is, where the user has not been afforded a reasonably “fair quantum of remedy.”
Whether the remedy failed in this case is a question of fact ánd should not have been decided on summary judgment. Seé 5 Anderson, Uniform Commercial Code § 2-719:29 (1984). In Delhomme Industries, Inc. v. Houston Beechcraft, 669 F.2d 1049, 1063 (5th Cir. 1982), the court, applying Kansas law, stated the determination of a claim under K.S.A. 84-2-719(2) is a question of fact rather than one of law. Also, in Erie County Water Auth., Etc. v. Hen-Gar Const., 473 F. Supp. 1310, 1315 (W.D. N.Y. 1979), the court determined that more factual development was necessary and that need precluded summary judgment on the issue of whether the limited replacement or repair remedy had failed of its essential purpose.
In summary, we conclude that the summary judgment against Elite must be reversed. It was improvidently granted. On the present record, the printed warranty and disclaimer does not preclude recovery by Elite on its asserted strict liability, negligence, or warranty theories as a matter of law.
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PlERRON, J.:
In a personal injury action tried to a jury, plaintiff was awarded $723,150.81, based on the negligence of defendant Star Lumber & Supply Company, Inc. (Star Lumber). Star Lumber appeals the trial court’s denial of its motion for a new trial.
Ann Marie Tamplin was six years old at the time she was injured and nine when the case was tried. Ann’s parents had gone to a Star Lumber store to look at Formica for a dining room table. While there, a roll of vinyl flooring fell, striking Ann on the head and knocking her to the cement floor. The roll was approximately 6 feet long and weighed about 150 pounds. Star Lumber stored its rolls of vinyl flooring by standing them on one end next to a wall.
The injuries to the victim caused her to bleed through her mouth, nose, and ears; she also vomited blood. Testimony indicated that the pool of blood and water around Ann was probably 5-6 feet in diameter. When Ann was brought into the emergency room, she was initially considered ■ to be in a life-threatening condition, but her condition stabilized. Her skull was fractured in three places, and hér eardrum was perforated. After Ann was released from the hospital, later tests determined that her pituitary gland was injured.
As a result of her pituitary gland injury, Ann has a permanent condition known as diabetes insipidus. This is not the more commonly known form of diabetes which is treated with insulin. Ann’s condition causes her to urinate quite frequently. She must take a medicine, DDAVP, twice a day to regulate this. Were Ann ever without her medicine and unable to drink the large quantities of water she would require as a result of the frequent urination, she would die.
The medicine is a liquid form which Ann must inhale through her nose or have her parents assist her by blowing the medicine up her nose. Testimony indicated that it embarrasses Ann to take her medicine in front of her friends. Testimony was admitted that when the dosage of medicine needs to be adjusted, Ann does not sleep well because she must get up to go to the bathroom and get a drink frequently. As a result of these restless nights, she will sometimes be found sleeping when other children are out playing. Other testimony indicated Aim was, overall, a normal, active child.
The product label that comes with the DDAVP states that the medicine must be kept refrigerated. As a result, Ann’s parents have to make special arrangements on trips to keep the medicine refrigerated and Ann has had to forego activities like Brownie camp because of her medicine. However, defendant’s expert testified that the caution regarding refrigeration may be safely ignored.
One of plaintiff s expert witnesses testified that there is a very slight chance that when it is time for Ann to go through puberty, her pituitary gland will not produce' the necessary chemical to trigger sexual maturation. This testimony was admitted, and the jury was instructed that this possibility was too remote and speculative for money damages to be awarded. The jury was instructed to consider such testimony “only as it may bear on the mental anguish, if any, suffered by Ann Marie Tamplin because of the slight possibility that she may not develop normally.”
The jury found that Ann’s parents were 5% at fault and that Star Lumber was 95% at fault. It awarded $761,211.38 in damages. The trial court entered judgment for the plaintiff in the amount of $723,150.81. Star Lumber timely appeals, asserting that the trial was not fair and it should be granted a new trial. Additional facts will be brought out as necessary.
The first issue on appeal is whether a new trial should have been granted due to alleged juror misconduct.
It has been held that it is within the sound discretion of the trial court to grant or deny a. motion for new trial based on juror misconduct. Unless it appears that the trial court has abused this discretion, the refusal to grant a new trial will not be disturbed. Pike v. Roe, 213 Kan. 389, 392, 516 P.2d 972 (1973).
“Our rule has always been that it is for the trial court to determine, in the first instance, whether misconduct on the part of the jury has resulted in prejudice to a litigant, and that its judgment thereon will not be overturned unless abuse of discretion is manifest. . . .
“The rationale of the rule is obvious. The trial court is situated far more advantageously to judge whether a verdict stems from misconduct than is this court, on appeal. Not only does the trial judge personally see and hear each witness but he is in a position to observe the conduct of and interrelationship existing between litigant, counsel and jury, and can intuitively sense the atmosphere in which the proceedings are being conducted. The trial court can thus call to its assistance experiences, observations and occurrences which are denied to us.” Furstenberg v. Wesley Medical Center, 200 Kan. 277, 285-86, 436 P.2d 369 (1968).
It is undisputed that one juror in this case, during the trial, went to the Star Lumber store in question to see how the rolls of vinyl flooring were stored. In defending against a motion for new trial, plaintiffs counsel told the court:
“Mr. Gass had testified that they had taken remedial steps to constrain the rolls of linoleum, and ' I guess, from what [the juror] told me, she was curious to see if they really did that. They did, and that’s what she saw, and she saw nothing more than what was already in evidence at that point.”
Apparently, this juror was overheard telling another juror that she had gone to the floor covering store to see how the vinyl was stored. At this point the juror was interrupted by the presiding juror and told not to discuss this any further, and the incident was reported to the court. The court brought the jury in from deliberations, questioned the presiding juror as to whether any discussion had taken place about this juror s investigation, learned that it had not been discussed, and admonished the jury not to discuss the juror’s visit to the floor covering store and not to allow the visit to influence its deliberations.
Counsel have stipulated that the results of the juror’s investigation at the defendant’s store were not discussed by the jury. When the jury resumed its deliberations, both the plaintiff and the defendant moved for a mistrial, on which the court reserved ruling.
In its motion for a new trial and on appeal, the defendant expressed concern that although the results of the investigation were not discussed, the offending juror advocated a finding of 100% fault against Star Lumber and higher damages than were eventually awarded. Defendant contends that the rest of the jurors knew that this juror knew something they did not know and that they gave great weight to the fact she was against Star Lumber. The defendant argues that the jury was prejudiced as a result.
The plaintiff points out that the offending juror was not the only juror who advocated a higher percentage of fault and damages than were eventually awarded. Additionally, plaintiff argues in her brief that it is not clear that the other jurors knew who the offending juror was. This would draw into question defendant’s contention that even though the results of the improper investigation were not made known to the other jurors, they knew who had made the investigation and gave more credence to the offending juror’s opinion during deliberations.
Plaintiff is correct in pointing out that the record does not make clear whether the jury knew who the offending juror was. She was never admonished by name by the court. Defendant did file an affidavit of one juror (not the presiding juror) which indicates that during deliberations a juror announced she had gone to the floor covering store, that she was prevented from discussing her findings, and that she continued to participate in deliberations and “adamantly advocated a finding of 100% liability against the defendant for the highest amount of damages suggested by any juror. ” This affidavit was prepared by the defendant’s counsel and mailed to the juror, who signed and returned it. This affidavit indicates that at least this juror knew who the offending-juror was. ■ í • .
Should this misconduct result in a new trial? “It is not the misconduct of jurors alone which necessitates a new trial but misconduct which results in prejudice to a litigant and deprives him of his right to a fair and impartial trial.” Pike, 213 Kan. at 392. Was Star Lumber prejudiced by this misconduct? The jury verdict form indicates that the 12 jurors were unanimous in all but two answers. Question 2 concerning fault percentages had the vote of only 11 jurors, and Question 3b awarding $250,000 for future noneconomic loss (pain and suffering) had the agreement of only 10 jurors. Star Lumber argues that perhaps if the offending juror had not improperly conducted an investigation, there might not have been the 10 required votes needed to award $250,000 in pain and suffering and that since the other jurors knew she had conducted an investigation, they were improperly influenced and may have also wrongly voted for that award. Essentially, Star Lumber contends that there might not have been enough votes to sustain that award without the juror misconduct.
Kansas cases do not appear to address the situation before us. However, they clearly hold that when jurors conduct improper investigations and report the findings to the jury, a new trial should be granted if such misconduct causes prejudice to a litigant and deprives that party of the right to a fair and impartial trial. Pike v. Roe, 213 Kan. at 392; Furstenberg v. Wesley Medical Center, 200 Kan. 277; Walker v. Holiday Lanes, 196 Kan. 513, 413 P.2d 63 (1966); Kincaid v. Wade, 196 Kan. 174, 410 P.2d 333 (1966); Levy v. Jabara, 193 Kan. 595, 396 P.2d 339 (1964); Thomas, Administrator v. Kansas Power & Light Co., 185 Kan. 6, 340 P.2d 379 (1959); Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P.2d 207 (1953).
It is undisputed, however, that the results of the juror s investigation were not reported to the jury. Additionally, it is not disputed that the juror only saw what had already been testified to during the trial.
Kansas case law does indicate the following about juror misconduct. In Pike v. Roe, 213 Kan. at 391-92, an automobile accident case, a new trial was not granted despite the fact that one juror had failed to disclose that she had been involved in an accident several years before, another juror had painful problems with his knees brought about by disease as opposed to injury, and a third juror drove through the intersection where the accident happened every day because he lived near there. In Kincaid v. Wade, 196 Kan. at 175-77, a new trial was granted after three jurors followed one of the litigants and reported on her driving habits to the jury. As this was a case about injuries from an automobile collision, that was highly relevant. After veiled and mysterious references throughout the trial to plaintiffs business, members of the jury in Furstenberg, 200 Kan. 277, acquired a telephone book and determined that plaintiffs were in the insurance business. The Supreme Court affirmed the trial court’s refusal to grant a new trial. 200 Kan. at 286.
A new trial was granted in Walker v. Holiday Lanes, 196 Kan. 513, as a result of several errors, including that of a juror visiting the accident site and disclosing his findings to the jury. Another juror failed to disclose that he was involved in litigation that had been settled. A party to that litigation had been represented by an attorney with the same name as one of the attorneys conducting voir dire. In Levy v. Jabara, 193 Kan. at 599, a new trial was granted because of the inadequate verdict coupled with the unauthorized viewing of the accident scene by the jury. In Thomas, Administrator v. Kansas Power & Light Co., 185 Kan. at 15-16, a new trial was granted after a juror conducted scientific experiments on the arcing and jumping characteristics of elec tricity (something not in evidence) and discussed his experiments with his fellow jurors. In Kaminski v. Kansas City Public Service Co., 175 Kan. at 140-41, a new trial was granted when three jurors went out and took measurements at an accident scene and two jurors failed to disclose that they or their families had been involved in a damage suit. 1
A review of the above cases indicates that generally a new trial was granted as a result of several errors at the trial court level or in the face of egregious juror misconduct. Not one of the above cases relates a situation where a juror’s findings were not reported to the jury.
Here, the results of the unauthorized investigation were not reported to the jury, the results were not discussed by the jury, and the offending juror saw nothing more, than what already was in evidence. Defendant cites some scholarly work suggesting that strong admonitions to the jury to disregard prejudicial or inadmissible evidence may have a “boomerang” effect in that the jury may in fact give the evidence more weight. However, in the instant case, the defendant has not demonstrated an abuse of discretion by the trial court in denying a new trial to defendant.
The defendant has not demonstrated so much prejudice existed because of juror misconduct that no rational person would agree with the trial court. As the trial court was in the best position to determine whether the jury seemed prejudiced, its order denying a new trial based on juror misconduct is affirmed.
The second issue is whether plaintiffs counsel made an improper reference in closing argument to the $250,000 statutory cap for pain and suffering and, if so, whether a new trial should be granted as a result.
“ ‘Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial. [Citation omitted.] Of course, the trial court is .in a better position than an appellate court to determine whether the verdict resulted from asserted misconduct of counsel or from passion and prejudice, and ordinarily its conclusion in the matter will not be disturbed.’ .... Where the alleged misconduct is isolated and is insufficient to result in substantial prejudice or prevent a fair trial, the trial court’s verdict will not be overturned.” Tetuan v. A. H. Robins Co., 241 Kan.. 441, 477, 738 P.2d 1210 (1987).
Since defense counsel failed to object to the allegedly improper closing arguments of plaintiffs counsel, and also failed to raise this issue on the motion for new trial, this court does not have the benefit of the trial court’s reasoning.
In closing argument, plaintiffs counsel asked the jury to search its conscience and determine what the pain and suffering Ann Marie Tamplin had endured and would endure was worth. He suggested that the jury might feel an award larger than $250,000 would be fair but asked them to award only $250,000 for Ann’s pain and suffering. Counsel told the jury they did not want one penny more than $250,000 for reasons counsel was unable and not permitted to explain to the jury.
As stated above, the defendant did not object to this argument during closing argument nor was the issue raised on motion for a new trial or for remittitur. On appeal, defendant now contends that this argument made improper reference to the legislative cap on pain and suffering awards provided for in K.S.A. 1990 Supp. 60-19a02. The statute provides that “the court shall not instruct the jury on. the limitations of this section.” K.S.A. 1990 Supp. 60-19a02(d). This does not necessarily mean that counsel is not permitted to refer to the figure of $250,000.
Whether the remarks of plaintiffs counsel informed the jury of this statutory cap is certainly less than clear. Plaintiff s counsel certainly did not make an outright reference to such a cap or limit. And while such a reference may easily be inferred by attorneys familiar with statutory caps, it is another question entirely whether a lay jury would also make such an inference.
Defendant cites law from other jurisdictions which prevents juries from being informed about the effect of legislative damage limits but does not cite any Kansas cases. Defendant does cite one federal case decided in the District of Kansas which holds that juries should not be informed of the statutory limitation on wrongful death damages. Benton v. Union Pac. R. Co., 430 F. Supp. 1380, 1385 (D. Kan. 1977). Kansas courts have not addressed whether this holding in Benton appropriately interprets Kansas law.
“In determining whether improper actions by counsel amount to reversible error, Kansas courts have given great weight to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury.” Tetuan, 241 Kan. at 479. Where inadvertent, even the highly prejudicial mention of in surance may be cured by an instruction to the jury to disregard it. Kelty v. Best Cabs, Inc., 206 Kan. 654, 656, 481 P.2d 980 (1971).
The defendant cites Masson v. Kansas City Power & Light Co., 7 Kan. App. 2d 344, 350-51, 642 P.2d 113, rev. denied 231 Kan. 801 (1982), to support its proposition that although great weight is generally given to the presence of an objection, some comments are so prejudicial as to be incurable. Masson is distinguishable, however, as the defendant in Masson properly objected and moved for an admonition to the jury or, in the alternative, for a mistrial. The trial court sustained the objection but did not give an admonition and denied a mistrial. The argument which was objected to pitted big business against the individual and was quite inflammatory. This court said, “That it was improper is beyond question.” 7 Kan. App. 2d at 348.
As no Kansas case has ever held that counsel should not inform the jury of the statutory cap and since it is not clear that counsel did so inform the jury, this is clearly not improper beyond question. Even if it were, an objection would still seem necessary. For those reasons, we find no abuse of discretion in the denial of the motion for a new trial on this basis.
The next issue is whether the district court abused its discretion in allowing expert testimony about the slight chance Ann would not go through normal puberty as a result of her injury and allowing damages to be awarded for the mental anguish that she might suffer from worrying about it.
The trial court is vested with wide discretion in receiving expert opinion testimony. Nunez v. Wilson, 211 Kan. 443, 445, 507 P.2d 329 (1973):
“The education, training, experience, and knowledge of a proposed expert witness are factors which a trial judge should consider in exercising that discretion, and even though a witness has been qualified as an expert, his testimony bearing on the issues at hand must be based on facts which are sufficiently accurate, comprehensive, and pertinent to give his opinion probative value.”
As the admission of expert testimony is within the judicial discretion of a trial court, “its ruling thereon will not be disturbed on appeal in the absence of abuse of discretion.” Gregory v. Carey, 246 Kan. 504, 507, 791 P.2d 1329 (1990). Judicial dis cretion is abused only when no reasonable person would agree with the trial court. If any reasonable person would agree, then the ruling must be left undisturbed. 246 Kan. at 507-08.
The Supreme Court in Nunez, 211 Kan. at 447, announced the rule that expert testimony must not be of a speculative or conjectural nature to be admissible. While magic language like “reasonable medical certainty” does not have to be used, the expert testimony must be expressed in some term of probabilities as opposed to possibilities. 211 Kan. at 445. Words such as “liable,” “likely,” or “probable” tend to connote reasonable probabilities rather than possibilities. 211 Kan. at 447.
While it is undisputed that “[e]xpert witnesses must confine their opinions to matters in issue which are certain or probable and not testify as to mere possibilities,” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307-08, 756 P.2d 416 (1988), it is also undisputed that the testimony in question did not rise to the level of probability. . .
Plaintiffs expert witness testified that there was a very slight chance that Ann would fail to sexually mature without chemical inducement and, if that happened, Ann would probably be infertile. When the court gave the jury its instructions, it included an instruction telling the jury not to consider that evidence as part of Ann’s claim for injuries as this possibility was too remote or speculative. The court instructed the jury that it was only to consider the evidence that Ann might fail to enter puberty as part of her claim for mental anguish.
The defendant correctly points out that no evidence was presented that Ann does suffer anguish in worrying about whether she will develop normally. Ann did not testify. Her mother, however, testified that she took Ann to Portland, Oregon, to see Dr. Greenburg (the expert who testified to this possibility) because she was concerned about whether Ann would develop normally.
Testimony or reference to the possibility that Ann might not develop normally through puberty took up approximately 7 pages out of the 787 pages of trial transcript. Counsel never referred to it again after Dr. Greenburg finished testifying. Counsel did not raise the issue during closing argument to bolster Ann’s claim for mental anguish. In her brief on appeal, plaintiff states, “Courts have long recognized that an injured party may recover damages for mental anguish for the fear of a future medical condition, even if the chance of occurrence is only ‘slight’ or a ‘possibility.’ ” Plaintiff does not cite any Kansas cases to support this proposition. However, a Fifth Circuit Court of Appeals opinion, applying Mississippi law to the issue of fear of a future medical condition, said:
“[Plaintiffs] fear is plainly a present injury. It is a fear which he experiences every day and every night. It is a fear which is exacerbated each time he learns that another victim of asbestos has died of lung cancer. It is fear which, regardless of whether Jackson actually gets cancer, will haunt him for the rest of his life.” Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 414 (5th Cir.), cert denied 478 U.S. 1022 (1986).
Following this rationale, it was reasonable to allow the jury in this case to consider the possibility that Ann might worry that she might not enter puberty as a possible element of her mental anguish. Whether the jury did consider it and awarded her damages for worry over this possibility, we will never know. Given the extensive amount of other damages proved in this case (three skull fractures, perforated eárdrum, permanent loss of hearing, damaged pituitary gland, and diabetes insipidus) and obvious pain and suffering, the jury award, while large, does not shock the conscience of the court, and the trial judge so found in overruling a motion for new trial and/or remittitur. We find no abuse of discretion in allowing the expert testimony and claim for damages for mental anguish.
The next issue is whether the district court abused its discretion in allowing lay testimony about inflation or in allowing plaintiffs counsel to address inflation in his closing arguments.
K.S.A. 60-456(a) permits a lay person to testify “in the form of opinions or inferences [if it] is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” Exercising its judicial discretion, the trial court determines whether a witness is qualified to testify as to his or her opinion. The exercise of that discretion is not subject to review except in cases of abuse. Schmeck v. City of Shawnee, 232 Kan. 11, 31, 651 P.2d 585 (1982). Additionally, the “latitude permitted counsel in closing argument lies largely within the discretion of the trial court.” Hudson v. City of Shawnee, 245 Kan. 221, 235, 777 P.2d 800 (1989), modified 246 Kan. 395, 790 P.2d 933 (1990).
Essentially, this issue raises two questions: (1) Did the trial court abuse its discretion in permitting Susan Tamplin, Ann’s mother, to testify about the prices paid for Ann’s medicirie and the percentage by which the prices increased each year? and (2) Did the trial court abuse its discretion by allowing plaintiffs counsel to argue that the jury should- consider that the price' of Ann’s medicine will probably increase as a result of inflation over the next 70 years she is expected to live?
Plaintiff s counsel asked Susan Tamplin what she had paid for the DDAVP since she had been purchasing it for Ann. The court allowed the testimony on the theory that plaintiff was going to prove that the price changes often. The prices Mrs. Támplin quoted only indicate where the price increased or decreased from the previous price. The medicine is purchased’ more often than once a month and the prices quoted indicated that sometimes the price was stable for several months. Counsel asked Mrs. Tairiplin if she had computed the price increase over the' 33-month interval from January 1988 through September 1990, and the court allowed Mrs. Tamplin to answer, as it was just a mathematical computation. Mrs. Tamplin testified, “It’s been an in crease of over 20 percerit.”
Defendant suggested that Mrs. Tamplin was being overcharged at the pharmacy where she purchased Ann’s DDAVP. The defendant introduced an exhibit detailing what other pharmacies were charging for DDAVP at the time of trial. The defendarit did not introduce evidence that the price fluctuations testified to by Mrs. Tamplin were or were not experienced by other pharmacies which generally charged less for the drug than Mrs. Tamplin was paying.
On appeal, the defendant has asserted that the' testimony of the price changes and the resulting calculation of the percentage of price increase should not have been admitted. Defendant also suggests that plaintiffs counsel improperly and prejudicially argued the speculative effect that inflation might have on the cost of Ann’s medicine. Defendant, however, has cited no Kansas case that disapproves jury consideration of inflation.
While case law indicates that jury verdicts must be founded upon evidence and not upon speculation and conjecture, Wasson v. Brewers Food Mart, Inc, 7 Kan. App. 2d 259, 265-66, 640 P.2d 352, rev. denied 231 Kan. 802 (1982), it also indicates that the jury can consider reducing the damage award to present worth without an instruction giving detailed guidance. Gannaway v. Missouri-Kansas-Texas-Rld. Co., 2 Kan. App. 2d 81, 83, 575 P.2d 566 (1978). “[J]urors are familiar enough with interest that they can intelligently take into account the earning power of money.” 2 Kan. App. 2d at 83. While the plaintiff suggests that the Supreme Court has recognized that the jury may decide questions of inflation and present value in determining future medical costs in Gregory v. Carey, 246 Kan. 504, we are unable to find support in Gregory for such an assertion.
In Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972), however, the Supreme Court rejected the dissent by Justice Schroeder which complained that the jury verdict was too high because of the speculative use of inflation. Justice Schroeder suggested that the jury took the expert at face value and used the figure he suggested for loss of future earnings. The expert admittedly factored inflation into his figures. The court apparently rejected Justice Schroeder’s view that “[o]ther jurisdictions have generally considered evidence of future inflationary trends as speculative, and therefore incompetent evidence for a jury’s consideration. Lost future earnings should be based on present economic facts.” 209 Kan. at 588-89.
If Mrs. Tamplin’s testimony is in fact opinion testimony, then it would seem that her testimony clearly meets the K. S.A. 60-456 criteria of being rationally based on her perception and helpful to a clearer understanding of her testimony.
Did the trial court abuse its discretion in refusing to grant a new trial as a result of plaintiffs counsel’s remarks in closing argument? Counsel contended, and the trial court agreed, that his argument that the jury should factor inflation into its award of future medical costs was made in response to defendant’s closing argument. In his closing argument counsel for the defense suggested that an award of $50,000 would be sufficient because it could be invested and with the interest, the investment would return “more than three times the current cost of this medica tion.” If the medicine never increased in price from the time of trial, then at $896 per year for the next 70 years, it would cost $62,720.
Plaintiffs counsel argued that the jury should not reduce the award to present value because, even though the award can be invested, the investment interest may not be sufficient to cover the increase in the price of DDAVP. This argument was responsive to defendant’s closing argument. See Smelko v. Brinton, 241 Kan. 763, 769, 740 P.2d 591 (1987).
“ ‘In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use.’ ” Hudson v. City of Shawnee, 245 Kan. at 235 (quoting State v. Potts, 205 Kan. 47, 53-54, 468 P.2d 78 [1970]).
There being no reversible error, the denial of the motion for new trial is affirmed.
Rees, J., concurring: I concur in the result. | [
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Lewis, J.:
This appeal involves the suspensión of a driver’s lic.ense by the Kansas Department of Revenue. At the administrative hearing held in this matter, the appellee’s driver’s license was suspended for a period of one year for refusing to submit to testing. The appellee appealed that decision tó the district court, which set aside the order of suspension arid reinstated her driver’s license. The Kansas Department of Revenue appeals from the decision of the district court.
The issue on appeal is whether the arresting officer complied with the notice requirements of K.S.A. 8-1001(f)(l). If hé did not, we must decide what effect that failure had on the ability of the appellant to suspend the appellee’s driver’s license.
, The appellee was involved in a hit-and-run accident involving property damage to another'vehicle. In investigating this accident, the police officers discovered the appellee coming out of a woods near the scene. According to the officers, the appellee appeared intoxicated, smelled of alcohol, had bloodshot, and glassy eyes, and was staggering. It was determined that the appellee had been driving the hit-and-run vehicle. She was given and failed field sobriety tests. The appellee allegedly admitted, “ ‘I’m drunk,’ ” to her parents, in the presence of the police officers.
The appellee was arrested and transported to a local hospital because she claimed to have ingested an excessive amount of Tylenol. After arriving at the hospital, the arresting officer gave her written and oral notices required by K.S.A. 1989 Supp. 8-1001(f)(1). The appellee was notified, among other things, that, if she refused to submit to testing, her driving privileges would be suspended for at least 180 days. After being given the riotices referred to, the appellee refused to submit to a blood test, stating, “ ‘[B]ecause if I do I’ll be convicted.’ ”
K.S.A. 1990 Supp. 8-1001(f)(l),' the version of the statute ap.plicable at the time of the accident, provided, in pertinent part:
“Before a test or tests are administered under this section,, the person shall be given oral and written notice that: (A) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both; (B) the opportunity to consent to or refuse a test is not a constitutional right; (C) there is no constitutional right to consult with an attorney regarding whether to submit to testing; (D) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the persons driving privileges will be suspended for at least one year.; (E) if the person submits to and completes the test or tests and the test results show an alcohol concentration of . 10 or greater, the person’s driving privileges will be suspended for at least 30 days; (F) if the person refuses a test or the test results show an alcohol concentration of .10 or greater and if, within the past five years, the person has been convicted or granted diversion on a charge of driving under the influence of alcohol or drugs, or both, or a related offense or has refused or failed a test, the person’s driving privileges will be suspended for at least one year; (G) refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; (H) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; and (I) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done a$ soon as possible and is customarily available from medical care facilities and physicians. After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given unless the certifying officer has probable cause to believe that the person, while under the influence of alcohol or drugs, or both, has operated a motor vehicle in such a manner as to have caused the death of or serious injury to another person.”
When the statute is compared with the notices given to the appellee, it is apparent that the statute was not complied with. The appellee was advised that, if she refused testing, her driver’s license would be suspended for “at least 180 days.” The statute, as it read at the time of the incident, required that the appellee be advised that her driver’s license would be suspended for “at least one year.” The notice given to the appellee does hot comply with the notice required by the emphasized portion of the law quoted above. The appellee was also given a written copy of the required notices, which repeated the language of “at least 180 days.” The appellant concedes the notices given did not comply with the statute. The warning had been changed from “at least 180 days” to “at least one year” only 16 days prior to the incident in question. The arresting officer had failed to make note of this change in the law, and the appellant had failed to change the written notification forms which it supplies to arresting officers for use in complying with the statute.
The question which this court must determine is whether the failure to give the required notices established by the statute affects the right of the State to suspend the appellee’s driver’s license based on her refusal to submit to testing.
We begin with the proposition that 8-1001 has been construed to be a penal statute and the rule of strict construction applies:
“Judicial interpretation of statutes must be reasonable and sensible to effectuate legislative design and the true intent of the legislature. State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985). Where penal statutes are concerned, however, the rule of strict construction applies. The rule of strict construction of penal statutes against the State and for the accused is ‘ “not much less old than construction itself.” ’ State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988). We may not give a different meaning to a word in a criminal statute than the word usually possesses. The word should not be given a meaning which leads to uncertainty or confusion if it is possible to construe it otherwise. 243 Kan. at 34. Words in common usage are to be given their natural and ordinary meaning. State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987).
“Therefore, in the case at bar, K.S.A. 1987 Supp. 8-1001(f)(l)(E) must be construed against the State and in favor of defendant.” State v. Kelly, 14 Kan. App. 2d 182, 185-86, 786 P.2d 623 (1990).
The appellant simply asserts that State v. Kelly is wrong and that we should not apply it. We disagree. We consider Kelly to be well reasoned, and it is the law of this state unless and until overturned by our Supreme Court. In fact, Kelly was only recently cited as authority by the Supreme Court in State v. Luft, 248 Kan. 911, 811 P.2d 873 (1991).
The law, as set forth in Kelly, requires us to apply the rule of strict construction tp the statute in question. In doing so, we must construe it against the appellant and in favor of the appellee.
The rule of strict construction and prior decisions of our Supreme Court leave no basis to argue that somehow the notices in the statute are not mandatory. In State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876, rev. denied 242 Kan. 904 (1987), this court concluded that the language of 8-1001 was somehow directory rather than mandatory. This decision was overruled by the Supreme Court in Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988), wherein the court held:
“The statute in question clearly requires that certain procedures shall be followed and certain notices shall be given to a defendant arrested for driving under the influence. K.S.A. 1985 Supp. 8-1001(f) was enacted as part of a comprehensive revision of the statutes pertaining to driving under the influence of alcohol or drugs. The language of the statute is clearly mandatory. , . . We conclud e the notice provisions of K.S.A. 1985 Supp. 8-1001(f) are mandatory and not merely directory. The holding in Doeden to the contrary is overruled. The holding of the Court of Appeals in this case that the statute is directory and not mandatory is erroneous.” (Emphasis added.)
The decision in Barnhart was reaffirmed in State v. Luft, 248 Kan. 911, wherein Syl. ¶ 1 states: “The notice provisions of K.S.A. 1990 Supp. 8-1001(f) are mandatory and not merely directory.”
It is obvious from the decisions cited and the language of the statute that the notices set forth in K.S.A. 1990 Supp. 8-1001(f)(1) must be given. There is no room for omission or error. The Supreme Court in Barnhart indicated that the notices need pot be given in the exact words of the statute. The court said that “substantial compliance” would suffice and that: “To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” 243 Kan. at 213.
In Barnhart, the notice advised the appellant that he had the right to consult with an attorney after taking the test and that he had the right to have additional testing done “as soon as possible and as available.” The literal wording of the statute required the individual to be advised that additional testing should be done as soon as possible. On appeal, Barnhart argued that omission of the word “should” from the notice given rendered that notice erroneous. The court held that the notice as given amounted to substantial compliance since it advised the appellant of the right to additional testing. The court felt the notice as given did not mislead the appellant and conveyed the essentials of the statute.
We are unable to conclude that the notice as given in the case before us was in substantial compliance with 8-1001(f)(l)(D). That section of the statute was designed to advise a party of the specific consequences of refusing testing. It states that, not only is the party to be advised that his or her license will be suspended, it requires that he or she be told the exact period of time the suspension will run. Specifically, according to that provision of the statute, the individual is to be advised that, if testing is refused,, the individual’s license will be suspended “for at least one year.” In the instant matter, the appellee was advised that her license would be suspended for at least 180 days. The warning given did convey the impression that a refusal of testing would result in a suspension of the license. However, the legislature has mandated more than simply an advisory that the license will be suspended. The legislature has mandatéd notification of the exact period of that suspension. We conclude that the words “at least 180 days” do not convey the impression that the actual period of suspension will be “at least one year.” The notices given to ,the appellee in the instant matter were not in “substantial compliance” with the notice required. A suspension for one year is-more than twice as long as one for 180 days. An individual might find a suspension of 180 days acceptable, but reject the risk of a suspension of one year. The notice of a 180-day suspension does not convey an accurate impression of the actual risk to the individual of refusing the testing. An accurate and precise notice of that risk is required by statute.
The mandatory warnings were not given in this case. The question. is what effect that has on the State’s ability to suspend a driver’s license for refusing testing.
. In a criminal case where the defendant is being prosecuted for DUI, the sanction for failing to give all of the mandatory notices is suppression of the results of the blood-alcohol test. This, was first decided in State v. Kelly, 14 Kan. App. 2d 182, and later reaffirmed by the Supreme Court in State v. Luft, 248 Kan. 911. In neither of these cases, however, did the court deal with the failure of notice followed by a suspension of a driver’s license for failing to submit to testing.
These criminal cases teach us that there must be some sanction imposed when the State fails to comply with the mandatory notice requirements of 8-1001(f)(l). The application of such a sanction ■is necessary to insure compliance with the law. If there were no adverse results to the State of Kansas for noncompliance with the notice provisions, there would be little value in the legislature mandating the giving of such notices. Indeed, the United States Supreme Court has indicated on several occasions that the purpose of the exclusionary rule is to deter police misconduct. See United States v. Leon, 468 U.S. 897, 918-19, 87 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). In Kansas, we have adopted an exclusionary rule to insure the giving of the mandatory notices in criminal cases and to deter police misconduct in failing to give those notices. Reasoning by analogy, something akin to that must be employed in cases involving the suspension of a driver’s license.
We believe that the rule announced in Dewey v. Kansas Dept. of Revenue, 11 Kan. App. 2d 72, 75, 713 P.2d 490 (1986), is applicable to the instant matter. In Dewey, the Department of Revenue suspended Dewey’s driver’s license for failure to submit to testing. The statute required that the “chemical test refusal reports” had to be “verified on oath.” We found that this mandatory requirement was not followed. We held that the failure to follow the mandatory requirement of verifying the chemical test refusal report on oath deprived the Department of Revenue of jurisdiction to suspend the driver’s license: “In this case; since the uncontroverted evidence established the refusal report was not in fact sworn to, the district court erred in failing to rule that the Division had no jurisdiction to suspend Dewey’s privileges granted by the issuance of his driver’s license.” 11 Kan. App. 2d at 75.
It is not important whether we label the consequences of failure to comply with 8-1001 as jurisdictional. What is important is that we assure compliance with that statute by applying an appropriate sanction for the State’s failure to do so. In this instance, we hold that the failure to comply with and give all of the notices required by K.S.A. 1990 Supp. 8-1001(f)(l) divests the State of the authority to suspend a driver’s license for refusal to undergo testing. This rule is consistent with the exclusionary rule applied in criminal cases since it is designed to ensure compliance with the law and prohibits the State from taking advantage of its failure to deliver mandated warnings.
The appellant argues that we should require the appellee to shoulder an additional burden and require her to prove that she was prejudiced by the failure of the State to give the required notices. This we decline to do. It seems utterly inconsistent with the rule of strict construction to read into the statute a requirement that the citizen must show prejudice to impose a sanction against the State because it did not follow mandated notice procedures. The statute is to be strictly construed in favor of the appellee and against the appellant. The rule of strict construction would be vitiated by reading into the statute a required showing of prejudice. The legislature has seen fit to mandate the giving of very clear and very specific notices. The failure of the State to give those notices is prejudicial to the citizen in and of itself.
There is some suggestion in Barnhart that a showing of prejudice could be required. We read that language as dicta and do not consider it as binding. In addition, at best, Barnhart indicates that a showing of prejudice may be necessary to prevent the State from taking advantage of “substantial compliance” with the statute. The instant case is different factually from Barnhart. There was no substantial compliance with the statute, and the language in Barnhart is inapplicable to the instant matter.
• Once again, we reason by analogy from the criminal decisions cited in this opinion. We can discern no requirement beyond a simple showing that required notices were not given to suppress the results of a blood-alcohol test in a DUI prosecution. See State v. Luft, 248 Kan. 911. We believe the same rule should apply in the situation now before this court. We hold that proof that the State failed to follow the mandates of K.S.A. 1990 Supp. 8-1001(f)(1) is sufficient, standing alone, to require the reversal of a driver’s license suspension for failure to submit to testing. No further showing of prejudice is required.
The appellant finally argues that the appellee had a prior DUI diversion. It points out that, under K.S.A. 1990 Supp. 8-1001(f)(1)(F), one who is the subject of a prior DUI diversion will have driving privileges suspended for “at least one year” for refusing testing. There is no question but that the appellee was given this notice. Thus, the appellant argues that this notice given to the appellee basically “makes up” for the failure to give the notice discussed earlier in this opinion.
We do not reach the merits of this argument. In Angle v. Kansas Dept, of Revenue, 12 Kan. App. 2d 756, 757, Syl. ¶¶ 7, 8, 758 P.2d 226, rev. denied 243 Kan. 777 (1988), we held that an issue not raised at the administrative hearing may not be raised for the first time during de novo review or on appeal. Although the record of the administrative hearing is quite sketchy, we see no indication that that point was ever raised by the appellant. The appellee assures us that it was not raised, and the appellant has not shown that it was. As a result, we will not consider that issue for the first time on appeal.
The record at the de novo review by the district court is much easier to follow. We have examined that record and find that no evidence of a prior diversion agreement was ever introduced by the appellant. The district court journal entry recites that, at the trial of this matter, the appellant rested without offering any evidence. There is simply nothing in the record to support the argument submitted by the appellant. We would point out that the issue is not raised in the answer filed by the appellant. We note that the appellant filed a request for admissions and set forth 11 different facts which the appellee was asked to admit or deny. We have examined those requests for admission, and the appellee was not asked to admit or deny that she was the subject of a prior diversion agreement. The law is clear that it is the duty of an appellant to present an appellate record which supports the positions which it espouses. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 4, 809 P.2d 1216 (1991). This record does not do so on the issue attempted to be raised by the appellant, and we find that we are unable to consider that issue for the reasons stated.
We affirm the decision of the district court and hold that the appellant, under the facts shown, had no authority to suspend the driver’s license of the appellee.
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Davis, J.:
Robert and Regina Sebree appeal from the court’s ruling on summary judgment that Orville Dreasher, Jr., and Geraldine Dreasher have a right of access to old U.S. Highway 40 by use of a spur road through the Sebrees’ property. The court found that the Dreashers were abutting landowners to the Sebrees and had no other means of ingress and egress to their property. We affirm.
The Sebrees brought this action in 1988 seeking to quiet title against several defendants, damages for trespass, and injunctive relief. This controversy centers upon a road in Shawnee County that is located on the Sebrees’ land.
In 1870, the Kansas Legislature called for several roads to be established in this state, including a road from Lawrence to Topeka. This proposed road cut diagonally through a quarter section of land now owned by the Sebrees. Their predecessor in title, David G. Jones, petitioned the Shawnee County Commissioners in 1880 to relocate the road, agreeing to grant the county a right-of-way on a 60-foot strip of land on the section lines of his property if it would not place the road diagonally through the quarter section. The county commissioners accepted Mr. Jones’ grant of the right-of-way and approved the relocation of the road to the strip of land bounded on the west and south by the section lines. The road was constructed entirely upon the right-of-way, except where the southwest corner of the road was rounded off.
In 1919, the Sebrees’ predecessors in title quitclaimed an additional tract of land to Shawnee County to allow the rounded curve.
After the road was constructed in the early 1900’s, the Sebrees’ predecessors in title gave permission to the Dreashers’ predecessors in title, who owned the quarter section southwest of the Sebrees’ property, to use part of their property as a path to the new road. These two sections were never owned by a common grantor. The Dreashers’ predecessors in title used the path, or spur road, to reach the new road between approximately 1915 and the early 1950’s. The spur road encroaches on the northwest quarter section by 20 feet. The northwest quarter is presently owned by Alice McCammon, who is not a party to this action.
In 1952, the State of Kansas altered the location of Highway 40 in order to straighten several curves in the vicinity of the Sebrees’ property. The State condemned a strip of land straight through the Sebrees’ property in the approximate location of the first road that had been relocated in the 1880’s. Once the highway was straightened, the old road only traveled from one point , on the new. road to another point on the new road. (Diagram is attached for farther clarification as Appendix.) Since the condemnation, the old highway has been used only with the Sebrees’ permission for the homes located to the southwest of the old road and the Sebrees’ property.
, Also in 1952, the Kansas Highway Commission withdrew the old right-angled road “’from the system of State Highways in Shawnee County, Kansas, with the provision that the road shall be maintained as a detour highway until such time as the herein designated route shall be completed and open to traffic.’ ”
The Dreashers claim the use of the spur road based upon the common-law right of access to a public highway. In the summer of 1988, the Dreashers and Ed Southall, also a named defendant in the case, attempted to widen the spur road to install a larger entrance-way on the Sebrees’ property for a racetrack located on the Dreashers’ property, which Mr. Southall leased. This, was done without the Sebrees’ permission. The Sebrees initiated this quiet title action and also brought suit against the Board of County Commissioners of Shawnee County, the Kansas Department,.of Transportation, and Rural Water District #8, which laid a water line alongside the old road.
In February 1989, the Sebrees moved for partial summary judgment, asking the court to declare them to be the fee simple title holders to the old road as of 1952, when the State decided to altér Highway 40’s route. The court denied the motion, finding issues of material fact remained. While the matter was pending before the court, it granted the Sebrees a restraining order,. preventing the Dreashers from harassing the Sebrees and also preventing any of the defendants from altering the spur road in any way. The Sebrees reached a settlement with Rural Water District #8, which was then dismissed from the lawsuit.
In the summer of 1990, the Sebrees again moved for summary judgment against the county commissioners, the Department of Transportation, the Dreashers, and Ed Southall. Southall did not respond to the motion and the Sebrees were granted summary judgment against him. The Dreashers also, moved for summary judgment, asking the court to find they had a common-law right of access to the spur road and the old highway. The court found that the Sebrees held fee title to the property at issue, subject to a road easement by Shawnee County for the old highway. The court also held that the Dreashers had a right of access to the old highway by way of the spur road because the Dreashers’ property abuts the spur road, “all of which lies within Shawnee County’s easement.”
The court denied the Sebrees’ motion to alter or amend and the Sebrees’ request for trespass damages against Ed Southall on the basis that the journal entry granting summary judgment against Southall did not address plaintiffs’ claim of trespass damages. The parties reached an agreement on a permanent injunction limiting any further widening or repair work to be done on the spur road. This appeal follows.
In its summary judgment order, trial court found that, as a matter of law, “[b]ecause the Dreasher property abuts Shawnee County’s easement for the public road, which by definition is open to use by anyone, the . . . Defendants have the right of access to the road by way of the spur road.”
The standard of review of summary judgment decisions is well settled.
"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Citations omitted.] If factual issues do exist, they must be material to the case to preclude summary judgment. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
See Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). The burden of proof falls upon the Dreashers to show they are entitled to judgment as a matter of law.
The trial court determined that the Sebrees were the fee title owners of old Highway 40 and the spur road, but that Shawnee County retained an easement for both. The Sebrees admit that if the Dreashers prove they have a right of access to the road, then the Dreashers are entitled to enter onto the Sebrees’ property to reach the old road. The Sebrees, however, contend that summary judgment was improper because the Dreashers failed to show that their property abutted the public road and because a genuine issue of material fact remains regarding whether use of the spur road is reasonably necessary if a second road exists on the Dreashers’ property allowing access to the same public road.
The trial court based its decision upon Spurling v. Kansas State Park & Resources Authority, 6 Kan. App. 2d 803, 636 P.2d 182 (1981), which addresses the common-law right of access to public roads by abutting landowners. In Spurting, residents of the Wood-son Bend Subdivision sued the Kansas State Park & Resources Authority to provide them with additional access roads from the subdivision to the park road in Lake Crawford State Park. The trial court found that the residents’ property came within 35 feet to 76 feet of actually touching the park road. The trial court held the park road to be a public road and that the residents, as abutting property owners, were entitled to reasonable access.
We reversed, finding that the residents were not abutting property owners and were not entitled to the common-law right of access. 6 Kan. App. 2d at 805. We cited Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 330, 559 P.2d 347 (1977), which states that “it is recognized in the law of this state that the right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon.” See Smith v. State Highway Commission, 185 Kan. 445, 451, 346 P.2d 259 (1959). We stated that “[i]t is apparent this right of access has two components: 1) The persons claiming the right must own land abutting that street or highway; 2) There must be a public street or highway.” 6 Kan. App. 2d at 804.
Public Road
While the Sebrees did not appeal the trial court’s finding that the old highway is a public road, they argue on appeal that the old road is a private road owned by them. We address this issue because the right of access depends upon two factors: (1) The persons claiming the right must own land abutting the road; and (2) there must be a public roadway. Spurling, 6 Kan. App. 2d at 804.
The Sebrees’ enlisted the aid of Robert Richmond, an expert historian, to resolve the issue. Richmond stated in a letter that, prior to 1929, maintenance of the road at issue was the responsibility of Shawnee County. In 1928, the Kansas Constitution was amended to allow for a state agency responsible for a state highway system. The following year, the legislature established the Kansas Highway. Commission. Richmond stated that at this time, Kansas counties were relieved of the responsibility for state roads.
It is unclear whether the easement for the road at issue transferred to the State or whether it remained with the county. The district court found that the easement for the old right-angled road has been held continuously by Shawnee County since 1880.
“No statute regarding the creation or operation of the Kansas Highway Commission transferred road easements held by the various counties to the State of Kansas or the Highway Commission. Therefore, no transfer of the easement at issue occurred by operation of law. Additionally, no evidence presented in public records reveals that the Shawnee County Commissioners transferred the easement to the state or Highway Commission.”
This distinction is important, because if the State Highway Commission did not acquire the right-of-way, G.S. 1949, 68-413 (1951 Supp.) is inapplicable.
G.S. 1949, 68-413 (1951 Supp.) provides as follows:
“The state highway commission may dispose of any real estate or any right, title or degree or variety of interest therein as it may deem expedient or necessary whenever the commission determines that such real estate or interest therein, is no longer needed or used for state highway purposes, they may exchange the right of way to be abandoned for new or other right, of way: Provided, That when any road on the state highway system is vacated, the lands or interests or rights therein acquired by the state highway commission for right of way under the provisions of this section, unless disposed, of as above provided, shall revert to the present owners of the land of which it was originally a part.”
K.S.A. 68-413 is substantially different now; the language regarding reversion to the original landowner was removed in 1961.
On October 8, 1952, the State Highway Commission found it necessary “to relocate and change and to redesignate Highway US 40” in the interest of public safety, convenience, and welfare. The “Resolution for Relocation and Redesignation of Road” declared the old right-angled road to “be hereby withdrawn from the system of State Highways in Shawnee County, Kansas, with the provision that the road shall be maintained as a detour highway until such time as the [new road] shall be completed and open to traffic.” This language suggests that the old road was indeed under State control. However, the district court found that “[s]ince the State Highway Commission had not acquired a right of way under the provisions of 68-413, the Commission’s abandonment of the road was not subject to the provisions of 68-413.”
G.S. 1949, 68-413 (1951 Supp.) provides that the State Highway Commission could acquire title to land by purchase, dedication, or exercise of the right of eminent domain. The Sebrees argued below that when the Commission was established in 1929, all easements, rights, and responsibilities were automatically transferred from the county commissioners to the Highway Commission. The trial court found no support for the Sebrees’ argument in the statutes or applicable case law. We are unable to find legal support for this position.
Assuming the State had ah interest in the property, i. e., an easement for the right-of-way, the question becomes whether withdrawal of the road from the state highwáy system is equivalent to disposal of the interest pursuant to G.S. 1949, 68-413 (1951 Supp.). The statute authorizes the Commission to dispose of “any real estate or any right, title or degree or variety of interest therein,” not just property it acquired pursuant to the statute. G.S. 1949, 68-413 (1951 Supp.). It seems logical that the State assumed control and maintenance of Highway 40 when the Commission was created in 1929, and thus had the power to vacate the road or put it back under county control.
However, the district court reasoned that even though the old road may have been reclassified as a state road in 1929, “[t]he statutes do not state that interests in land, such as easements, are transferred between the units of government as a matter of law due to a road’s classification.” Thus, under the court’s holding, while the county road may have been reclassified as a road within the state system when the Highway Commission was established, the easement originally granted to the county in 1880 did not transfer to the State. The county continued to hold the easement, and when the Highway Commission withdrew the road from the state system in 1952, the situation returned to the status quo; the Sebrees’ predecessor in title owned the land in fee, subject to the county’s express easement.
Moreover, G.S. 1949, 68-413 (1951 Supp.) would not apply because the State never had an interest in the property to dispose; it merely assumed control and maintenance of the highway for the benefit of Kansas motorists. This reasoning makes sense, for if David Jones had granted the easement to the State in 1880 instead of to the county, the State would clearly have an interest subject to disposal pursuant to the statute.
The county may only, vacate the road pursuant to K.S.A. 68r 102 or K.S.A. 68-114. Both statutes require affirmative action on the part of the county, and no such action appears in the record before this court. The district court found the public record devoid “of any writing giving notice that Shawnee County has ever transferred or vacated the easement for the road currently at issue.”. . . ., .. . .... ..
The only other way the Sebrees could now have sole rights to the property burdened by the easement would be if the county abandoned the easement after 1952. The record reflects continued use of the old road by landowners south, and west of the Sebrqes’ property, and there are several affidavits of record indicating the county and the township have performed maintenance on the old road, including installation of traffic control devices and snow and ice removal. The road has never been closed or obstructed. We recently held that “[subsequent nonuse of an opened road is not destructive of the public right. [Citation omitted.]” Barrett v. Ninnescah Bow Hunters Ass’n, 15 Kan. App. 2d 241, 243-44,; 806 P.2d 485 (1991). The easement has not been abandoned, and as a result the road is open to public use.
We conclude, like the trial court, that the county holds an express easement which never reverted to the Sebrees or to their predecessors in title.
Abutment
In Spurling, we applied the Black’s Law Dictionary definition of “abut,” which means “ ‘to reach’ or ‘to touch’.” 6 Kan. App. 2d at 804; see Black’s Law Dictionary 11 (6th ed. 1990). Thus, the residents in Spurling were technically not “abutting” landowners because their property did not actually touch the park road. However, we pointed out that the term has not always been strictly construed, citing Riddle v. State Highway Commission, 184 Kan. 603, 339 P.2d 301 (1959). 6 Kan. App. 2d at 804. The Kansas Supreme Court stated in Riddle:
“The right [of access] is justified upon the grounds of necessity [citation omitted] and is such as is reasonably necessary for the enjoyment of the land [citation omitted]. It is a property right known in law as an ‘easement appurtenant’ or an ‘easement access’ to the abutting land [citations omitted]. It includes not only the right of the abutting owner to enter and leave his property by way of the highway, but also the right to have the premises accessible to patrons, clients and customers [citation omitted].” 184 Kan. at 610.
Nevertheless, we held in Spurling that the “close proximity” of the residents’ land to the existing park road was not enough to allow the residents a right of access. 6 Kan. App. 2d at 804.
We were careful to draw a distinction between the situation where the strip of land between the landowners’ property and the public road is owned in fee by the State, as was the case in Spurling, and the situation where the intervening land was actually a right-of-way, or a mere servitude imposed on the land. 6 Kan. App. 2d at 804-05. We held that “[s]ince the strip of land between the park road and [the residents’] property is owned by the State and is not merely a right-of-way,” the residents were not entitled to rely on the common-law right of access. 6 Kan. App. 2d at 805. (Emphasis added.) The issue of whether a property owner has a right of access to a public road where the owner’s land only abuts a right-of-way to the public road, and not the road itself, has not yet been decided by a Kansas appellate court.
Spurling refers to three cases where courts in other jurisdictions have “refused to extend an abutter’s right of access to one whose land does not adjoin at any point the road surface.” 6 Kan. App. 2d at 805. See State v. Fuller, 407 S.W. 2d 215 (Tex. 1966) (owners’ land separated from public road by an abandoned railroad right-of-way on property owned by the State); City of Wichita Falls v. Thomas, 523 S.W.2d 312 (Tex. Civ. App. 1975) (plaintiffs property was not “abutting” property where it was separated from the public street by a triangular strip of land belonging to the city that was not used as a right-of-way); Farnsworth v. Soter’s Inc., 24 Utah 2d 199, 468 P.2d 372 (1970) (plaintiffs’ property not contiguous at any point with old public road where 10 to 14 feet separates plaintiffs' north property line and the south edge of the roadway).
None of the above cases is factually on point with the present case. The record reflects that the Dreashers’ property actually touches the spur road, or right-of-way, at the point where the two quarter sections meet. (See Appendix.) The land between the old highway and the Dreashers’ property is not merely a strip of unimproved land, as in Spurting, but is instea4 a right-of-way to a public road. The Sebrees dp not appeal the trial court’s finding that the old highway is a public road.
The question is whether touching the right-of-way is enough, or whether the Dreashers’ property must actually abut the old road itself.
The Sebrees contend that the Dreashers’ property , must touch the road they seek access to and not just the spur road. The trial court refused to adopt the Sebrees’ argument that the Dreashers’ land must abut the road surface and not just the road easement, stating that such an interpretation would “deny thousands of rural residents across this state the right of access to county roads” if their property reached only to the road’s shoulder but not the road’s surface. We agree. Moreover, denying the Dreashers a right of access to the spur road, upon which Shawnee County holds an easement for the old public road, simply does not make sense. Based upon our language in Spurting, we conclude that the trial court properly awarded the Dreashers a right of access to the spur road and the old Highway 40.
Access by Necessity
The Sebrees also contend that the Dreashers are not entitled to a right of access to the spur road , because such access is not reasonably necessary to the defendants. While this issue is not critical because we have agreed with the trial court’s determination that the road is a public road, we nevertheless address the Seebrees’ contention. The Sebrees contend that the Dreashers have access to old Highway 40 from a road on the Dreashers’ own property, and thus should not be allowed to use the road on their property.
The common-law right of access “is justified upon the grounds of necessity.” Riddle, 184 Kan. at 610. See Longnecker v. Railroad Co., 80 Kan. 413, 102 Pac. 492 (1909) (necessity need not be absolute). The right assumes that the abutting landowner has no other reasonable means of reaching the highway but through the property of his adjoining neighbor. After reviewing the facts presented by the parties, the trial court determined that the spur road from the old highway “is the only way of ingress and egress” leading to the Dreashers’ property. The Sebrees argue that a material issue of fact remains as to whether use of the spur road by the Dreashers is reasonably necessary.
The Sebrees point to a possible second route for the Dreashers. They contend that other roads on the Dreashers’ property lead to Green Hills Road, and that this road provides direct access to old Highway 40. The Sebrees argue that the only reason the Dreashers do not use this alternative route is because it is cheaper for them to burden their adjoining neighbors.
Both parties in their briefs cite to statements made by an engineer which are not part of the record and also insert facts within their personal knowledge to bolster their respective arguments concerning this issue. The Sebrees place great weight on the testimony of Mike Engler, an engineer hired by the Dreashers, who testified at some point before the Metro Planning Commission. According to the Sebrees, he testified:
“ ‘There is presently through additional property that the Dreashers own to the west that faces out on the Green Hills road more or less a farm access road which goes through the timber and makes a low water crossing, basically a mud crossing, across the creek right now. But the trees have already been cleared for it and there is adequate space through the timber and out to Green Hills road, it would require the construction of some type of culvert for [an] all weather crossing over the creek.’ ”
The Sebrees cite page 973 of the record for this statement, but that page is merely part of the plaintiffs’ motion to alter or amend the judgment which provides the same statement. No transcript of Mr. Engler’s testimony is found in the record on appeal.
The appellees filed a motion to strike this statement from appellants’ brief, but the court denied the motion. Appellees filed in response a letter to them from Mike Engler, stating that, while a second access from the Dreashers’ property to Green Hills Road might be possible, upon further review he had determined the idea was not feasible for several reasons, including the necessity of building a bridge over an intervening creek and the prohibitive cost of hard surface pavement.
None of the plat documents provided by either party show a road on the Dreashers’ property leading to Green Hills Road. The trial court correctly concluded that the only existing means of ingress and egress for the Dreashers was use of the spur road to reach the old highway, and eventually new Highway 40. '
Based on Spurling and the limited facts of record, the trial court properly granted the Dreashers a right of access to the spur road on the Sebrees’ property. The Sebrees are protected from misuse of the right by the permanent injunction agreéd to by the parties and approved by the court, which prevents any action to change or enlarge the spur road and prohibits the placement of banners, signs, or other markings along the road to advertise the racetrack;
Affirmed.
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Lewis, J.;
This is-a direct appeal from the convictions of the appellant for voluntary manslaughter and conspiracy to commit voluntary manslaughter.' At the time these crimes were commit ted, the appellant was a 16-year-old high school student. After conducting a hearing, the trial court authorized the prosecution of the appellant as an adult. The appellant appeals from that determination, claiming the trial court erred in authorizing his prosecution as an adult.
The basis for the charges against the appellant was the result of a drive-by shooting. In this incident, the appellant, accompanied by several other gang members, fired 22 live rounds of ammunition into the home of a rival gang member. At least one of these rounds struck the victim in the neck, resulting in his death. The evidence indicated that the appellant may have fired the fatal bullet.
The appellant was originally charged as a juvenile. Subsequently, the trial court, acting under K.S.A. 1990 Supp. 38-1636(e), authorized the prosecution of the appellant as an adult.
Before reaching the issue raised by the appellant, we must first determine if we have jurisdiction to hear this appeal.
JURISDICTION
Because the notice of appeal was not filed within the time required by statute, we raise the issue of jurisdiction. We issued an order to show cause to the appellant as to why his appeal should not be dismissed for lack of jurisdiction. We ultimately requested that the parties brief the issue and present it to the court on oral argument.
“ ‘This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. [Citations omitted.]’ ” State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982) (quoting State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 [1980]).
A review of the record shows that, on August 21, 1989, the appellant was ordered to be tried as an adult. On October 10, 1989, the appellant entered a plea of guilty to the crimes for which he stands convicted. He was sentenced to a term of 3 to 11 years in the custody of the secretary of corrections on November 17, 1989. A motion to modify the sentences was filed on December 12, 1989, and denied by a journal entry filed on April 27, 1990. The notice of appeal to this court was not filed until July 5, 1990.
K.S.A. 38-1681(b) provides that a juvenile may appeal from an order of adjudication or disposition, or both, but it must be done within 10 days after the entry of the order of disposition. This court in In re M.O., 13 Kan. App. 2d 381, 382, 770 P.2d 856 (1989), held that, because K.S.A. 38-1681(b) provides for an either/or situation, an appeal will be considered proper if the order is appealed at either time.
Alternatively, K.S.A. 38-1681(a)(l) allows a juvenile to appeal an order authorizing prosecution as an adult in the same manner as other criminal appeals are taken. The statute specifically provides that this may be done even where criminal prosecution has resulted in a judgment of conviction upon a plea of guilty. The general rule in this state regarding time for criminal appeals is that a defendant may appeal within 130 days from the date the sentence is orally pronounced from the bench. K.S.A. 22-3608(1) provides that, if sentence is imposed, an appeal must be taken within 10 days of the expiration of the court’s power to modify the sentence. The court has 120 days from the date of sentencing to modify the sentence. K.S.A. 1990 Supp. 21-4603(4). If a motion to modify is timely filed, there is a 10-day period from the date the journal entry is filed to file a notice of appeal. State v. Myers, 10 Kan. App. 2d 266, Syl. ¶ 1, 697 P.2d 879 (1985).
In this case, no motion to modify was filed. The appeal time began to run on the date of sentencing, and the notice of appeal was required, at the very latest, to be filed within 130 days of November 17, 1989. The appellant’s notice of appeal was not filed until July 5, 1990, long after the 130-day period had expired. As a result, on its face, the notice of appeal was not timely filed, and we are without jurisdiction to hear the appeal unless one of the exceptions to the general rule is found to apply.
In general, Kansas appellate courts do not have jurisdiction to entertain an appeal in a criminal case unless a notice of appeal is filed within the time established by statute. State v. Ortiz, 230 Kan. at 735. In Ortiz, the Supreme Court recognized an exception to the general rule where “a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal. ” (Emphasis added.) 230 Kan. at 736.
In response to our order to show cause, the appellant contends that he is in no way at fault for the late filing of the notice of appeal and that it was his attorney who failed to perfect and complete the appeal. We have reviewed the record and find that the appellant’s claim is correct and supported by substantial competent evidence. The appellant’s attorney testified that he had advised the appellant of his right to appeal and that his intent was to file a notice of appeal. The attorney further testified that the reason the notice of appeal was not timely filed was due to the fact that he was not notified of the journal entry denying the motion to modify sentence. There is no question but that the appellant and his attorney intended to appeal the decision of the trial court.
Based on the decision in Ortiz, this appellant was furnished an attorney for the purpose of filing his appeal, but that attorney failed to perfect and complete the appeal. This constitutes an exception to the general rule under Ortiz, and, based upon the evidence, we hold that we have jurisdiction to consider the appeal in the instant matter. This decision is not dependent upon a finding by the trial court of ineffective assistance of counsel.
PROSECUTION AS AN ADULT
The merits of the appellant’s appeal concern his argument that the trial court erred in authorizing his prosecution as an adult.
Our scope of review is to determine whether substantial competent evidence supports the trial court’s decision. State v. Meyers, 245 Kan. 471, 474, 781 P.2d 700 (1989). “Substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
The Kansas Juvenile Offenders Code permits the trial court to authorize the adult prosecution of any juvenile who is 16 years of age or older at the time of the alleged commission of the offense if there is substantial evidence that the juvenile should be prosecuted as an adult for the offense charged. This decision is governed by K.S.A. 1990 Supp. 38-1636(e). That statute lists eight factors which must be considered by the court in deter mining whether adult prosecution should be authorized. The statute provides in part:
“In determining whether or not prosecution as an adult should be authorized, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated .a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of. living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests.of the respondent or of the community would be better served by criminal prosecution. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.” (Emphasis added.)
The appellant argues that the trial court did not consider each of the eight factors required by the statute. He further argues that there was no evidence presented by the State bearing on factors (6) and (7) listed above and that this is reversible error. Finally, he submits that too much weight was given to the serious nature of his offense.
In making its decision in this particular matter, the trial court said:
“I’m going to find' specifically that this is a serious alleged offense and that specifically the community would require prosecution as an adult due to that seriousness. . . . [T]his is an alleged crime that involves aggressive, violent, or willful action. I’m going to find specifically that this is an offense, an alleged offense, against a person. I’m going to find that the fourth factor, the number of alleged offenses unadjudicated, there’s only two, but they both involved violence and willful acts. . . . The previous history of the respondent, I’m going to find that I don’t have any information or evidence provided as to his previous history, other than from what it appears his only prior juvenile contact . . . would be that of the simple battery, which is remaining pending for disposition. As to the sophistication and maturity of the respondent, I do note that he is at the present time 17, and I believe, since his birthday is the 14th of June, 1972—
. . I don’t know about his sophistication, but I am going to find that he appears at least to have a sufficient level of maturity about him. As to the facilities or programs available to the Court which are likely to rehabilitate the respondent prior to expiration of the Court’s jurisdiction, I haven’t been presented any evidence with that, but I don’t think that’s fatal, . . . considering the provision that any insufficiency of evidence pertaining to one or more of those factors is not going to be dispositive of the issue. And as to number eight, I’m going to find that the interest of the respondent and the community be better served by criminal prosecution as an adult as opposed to juvenile court.”
It is the position of the appellant that there must be evidence presented on each factor listed by the statute and that no more weight can be given to one factor over another. We disagree.
First of all, it is apparent from the record that, while there may not have been evidence produced on each factor, the trial, court did discuss and consider each factor one by one.
It is clear that the statute does not require that each factor receive equal weight. The statute specifically states that the insufficiency of evidence pertaining to any factor shall not, in and of itself, be determinative of the issue. K.S.A. 1990 Supp. 38-1636(e); In re Edwards, 227 Kan. 723, 729, 608 P.2d 1006 (1980).
The appellant’s argument that the trial court placed undue weight on the severity of the offense is also without merit. The statute, by its very terms, does not require that the trial court give each factor equal weight. A similar argument was made by the appellant in State v. Cady, 248 Kan. 743, 748, 811 P.2d 1130 (1991), which the court rejected, stating:
“Cady argues that the district court, when authorizing Cady’s prosecution as an adult, disregarded its protective role in the juvenile justice system and focused solely on the penal nature of the allegations against him. We disagree. There is substantial evidence to support the district court decision that Cady should have been prosecuted as an adult.”
The record in the instant matter shows that the trial court considered all eight factors stated in the statute and that it did not place an undue amount of weight on the severity of the offense.
The final argument by the appellant is that there was no evidence presented on each of the factors listed in the statute. We would assume, for the purposes of this opinion, that the appellant is correct in his assertion. The record does show at least some evidence on whether there were other facilities or programs likely to rehabilitate the appellant. However, other than the appellant’s age, there appears to have been little evidence concerning his sophistication and maturity.
We have already pointed out that, although eight factors are listed in the statute, the statute specifically provides that the sufficiency of the evidence pertaining to any one or more of those issues shall not be determinative. Our review of the statute and of the Kansas Supreme Court decisions construing that statute requires us to hold that the statute does riot require evidence supporting all eight factors, only that those factors be considered. In the instant matter, the trial court considered all eight factors, and there was substantial competent evidence presented on at least six of those factors. We hold that the failure of the State to present evidence on all eight factors does not require a reversal of the trial court’s decision.
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Gernon, J.:
Clarence Gilbert challenges the constitutionality of K.S.A. 1991 Supp. 65-4135(a)(7)(A) of the forfeiture statute. Gilbert contends such section violates Section 12 of the Kansas Bill of Rights and also his homestead rights under Article 15, § 9 of the Constitution of the State of Kansas.
Gilbert entered a plea of no contest to a charge of conspiracy to possess marijuana with intent to sell. The charge grew from a search warrant executed on certain real property owned by Gilbert. Gilbert lived on the property, along with Lisa Brock and their two children. Though never married, Brock and Gilbert had lived together for approximately eight years.
Simultaneously with the pending charges, the State initiated a forfeiture action of the real property. Gilbert then raised the constitutionality of the forfeiture statute before the trial court. The court ruled against Gilbert and ordered forfeiture of the property. Gilbert appeals, raising only the constitutionality of the statute.
The forfeiture provision in question, K.S.A. 1991 Supp. 65-4135(a)(7)(A), provides:
“(a) The following are subject to forfeiture:
“(7) all real property, including any building or structure thereon, which is used or intended for use in violation of this act, if such violation constitutes a felony, except:
“(A) A homestead shall not be subject to forfeiture under this section unless the claimant of the homestead has been convicted of a violation of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amendments thereto, or a comparable federal law violation, if such violation constitutes a felony, which involves the unlawful manufacturing, compounding, selling, offering for sale, possessing with intent to sell, processing, importing or exporting of a controlled substance, or has been convicted of conspiracy or attempt to commit such a violation. The homestead shall be subject to forfeiture under this section if the forfeiture proceedings and the conviction arise from the same violation, act, conduct or transaction and, in that event, the claimant so convicted shall be presumed to have consented to the forfeiture of the homestead by commission of the violation.”
HOMESTEAD EXEMPTION
The homestead exemption, Article 15, § 9 of the Kansas Constitution, provides:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon Provided, That provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife And provided further, That the legislature by an appropriate act or acts, clearly framed to avoid abuses, may provide that when it is shown the husband or wife while occupying a homestead is adjudged to be insane, the duly appointed guardian of the insane spouse may be authorized to join with the sane spouse in executing a mortgage upon the homestead, renewing or refinancing an encumbrance thereon which is likely to cause its loss, or in executing a lease thereon authorizing the lessee to explore and produce therefrom oil, gas, coal, lead, zinc, or other minerals.”
Preliminarily, it must be noted that Gilbert’s assertion of a homestead claim is not in question, nor does the fact that Gilbert and Brock were unmarried frustrate Gilbert’s homestead claim. We have noted: “It has been held that the homestead exemption is not limited to husband and wife, but extends to groups bound together by ties of consanguinity living together as a household.” In re Estate of Fink, 4 Kan. App. 2d 523, 532, 609 P.2d 211, rev. denied 228 Kan. 806 (1980). The State does not challenge Gilbert’s right to assert a homestead claim.
INTERPRETATION OF CONSTITUTIONAL PROVISIONS
In State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978), the Kansas Supreme Court said:
“It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. [Citations omitted.]
“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 the 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.]”
The Kansas Supreme Court has also indicated:
“ ‘A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. In ascertaining the meaning of a constitutional provision courts consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it.’
“It is fundamental that the written constitution is paramount law since it emanates direct from the people. [Citation omitted.]” Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266 (1968) (quoting Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, Syl. ¶ 2, 360 P.2d 456 [1961]).
KANSAS CASE LAW
The Kansas appellate courts have considered the constitutional homestead exemption on many occasions. Several general rules regarding the homestead exemption have emerged from these cases.
“The homestead was not intended for the play and sport of capricious husbands merely, nor can it be made liable for his weaknesses or misfortunes. It was not established for the benefit of the husband alone, but for the benefit of the family and of society — to protect the family from destitution, and society from the danger of her citizens becoming paupers.” Morris v. Ward, 5 Kan. *239, *244 (1869).
See Bohl v. Bohl, 234 Kan. 227, 230, 670 P.2d 1344 (1983); Mahone v. Mahone, 213 Kan. 346, 350, 517 P.2d 131 (1973); State, ex rel, v. Mitchell, 194 Kan. 463, 465, 399 P.2d 556 (1965); Iowa Mutual Ins. Co. v. Parr, 189 Kan. 475, 480, 370 P.2d 400 (1962).
“. . . Kansas has zealously protected the family rights in homestead property by liberally construing the homestead provision in order to safeguard its humanitarian and soundly social and economic purposes; and nothing less than the free consent of the resident owner of the homestead, and joint consent of husband and wife where the relation exists, will suffice to alienate the homestead, except under the specified exceptions provided in the constitution.” State, ex rel., v. Mitchell, 194 Kan. at 466.
See Bohl v. Bohl, 234 Kan. at 229-30; Hawkins v. Social Welfare Board, 148 Kan. 760, 763, 84 P.2d 930 (1938); West v. Grove, 139 Kan. 361, 366, 31 P.2d 10 (1934) (“It has been the settled course of the decisions of this court to construe liberally the homestead provision and not to restrict it.”); In re Estate of Fink, 4 Kan. App. 2d at 528 (“the homestead laws are to be liberally construed in favor of those claiming it”).
The constitutional protection accorded to the homestead is greater than that accorded an ordinary statutory exemption. After reviewing the history of the Kansas constitutional convention, the Kansas Supreme Court concluded:
“The manner in which the homestead provision was finally agreed on, and the fact that the views of those who desired to create a homestead limited to a quantity of real estate occupied as a residence by the family of the owner prevailed over the views of those who favored an exemption statute, and the manner and form in which the proposition was submitted to the electorate warrants the conclusion that, although the provision itself uses the word ‘exempt,’ it was intended to create and more was created than a simple exemption statute. The manner in which the homestead may be alienated is expressly stated, as are the circumstances against which the homestead right shall not prevail.” West v. Grove, 139 Kan. at 366. (Emphasis added).
See Iowa Mutual Ins. Co. v. Parr, 189 Kan. at 480.
“The other view of the homestead laws, and the one which we adopt, is that no incumbrance or lien or interest can ever attach to or affect the homestead, except the ones specifically mentioned in the constitution.” Morris v. Ward, 5 Kan. at *244. “The homestead provision specifically enumerates the only circumstances where a homestead claimant may be deprived of his status.” State, ex rel., v. Mitchell, 194 Kan. at 467. (Emphasis added.)
“ ‘The homestead cannot be subjected to forced sale to satisfy debts except in the following situations: (1) To pay taxes; (2) to pay obligations contracted for the purchase of the homestead; (3) to pay obligations contracted for the erection of improvements on the homestead; or (4) any process of law obtained by virtue of a lien given by the consent of both husband and wife.’ ” Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 370, 598 P.2d 188 (1979) (quoting Iowa Mutual Ins. Co. v. Parr, 189 Kan. at 478).
The courts and the legislature do not have the power to create new exceptions to the constitutional homestead protections. See State, ex rel., v. Mitchell, 194 Kan. at 466 (“This court has no power to engraft amendments to our state constitution [art. 14, §§ 1, 2], and upon the matter of homestead, not only is legislative aid dispensed with, but legislative interference is foreclosed, and no conditions may be imposed by statute upon the enjoyment of the homestead right.” [Emphasis added.]); Iowa Mutual Ins. Co. v. Parr, 189 Kan. at 479; In re Estate of Casey, 156 Kan. 590, 599, 134 P.2d 665 (1943) (“it is not within the equitable power of the courts of this state to declare an indebtedness, except those expressly authorized by the constitution, a lien on the homestead”); West v. Grove, 139 Kan. at 363 (“anything that the legislature might see fit to enact or did enact could in no way limit the constitutional provisions with respect to a homestead”).
Whether K.S.A. 1991 Supp. 65-4135(a)(7)(A) violates Article 15, § 9 of the Kansas Constitution is an issue of first impression. However, the case law concerning the homestead exemption supports a conclusion that K.S.A. 1991 Supp. 65-4135(a)(7)(A) must be declared unconstitutional.
State, ex rel., v. Mitchell was an action “to abate a liquor nuisance” pursuant to K.S.A. 41-806. 194 Kan. at 464. The Kansas Supreme Court concluded the provisions of K.S.A. 41-806, which permit padlocking of a building, could not be applied to a homestead. 194 Kan. at 467. The court concluded:
“The padlocking of a homestead for the violation of any law is not specifically mentioned or even implied in the exceptions above stated. Admittedly, padlocking of a homestead is not a forced sale, but this section is enlarged by the clause ‘and shall not be alienated without the joint consent of husband and wife.’ The word ‘alienated’ as used in our constitution means a parting with or surrendering of some interest in the homestead.” 194 Kan. at 465.
The court’s reasoning included:
“The homestead provision of our constitution sets forth the exceptions and provides the method of waiving the homestead rights attached to the residence. These exceptions are unqualified. They create no personal qualifications touching the moral character of the resident nor do they undertake to exclude the vicious, the criminal, or the immoral from the benefits so provided.. The law provides for punishment of persons convicted of illegal acts, but the forfeiture of homestead rights guaranteed by our constitution is not a part of the punishment.” 194 Kan. at 465-66. (Emphasis added).
The legislature is without authority to create a new exception by statute. Forfeiture proceedings are not mentioned “or even implied” under the exceptions contained in § 9 of Article 15. 194 Kan. at 465.
The only additional exceptions recognized by case law are based upon other constitutional powers granted to the government. For example, in Brandon v. Brandon, 14 Kan. *342, *346 (1875), the Kansas Supreme Court held that the constitutional authority of a district court to grant a divorce includes the power to award possession of the homestead.
In Blankenship v. Blankenship, 19 Kan. 159, 161 (1877), the court held that a district court has the power to declare an award of alimony to be a lien upon homestead property.
In Jockheck v. Comm'rs of Shawnee Co., 53 Kan. 780, 790, 37 Pac. 621 (1894), the court held that the homestead exemption could not defeat the State’s power of eminent domain.
In Hawkins v. Social Welfare Board, 148 Kan. 760, the State was able to obtain a lien against a homestead because the statutes creating the lien were consistent with the homestead provision. Hawkins involved a statute which granted the State a lien on the real property of an old-age assistance recipient. The statute specified that the lien could not be enforced while the property was being occupied as a homestead. 148 Kan. at 762. The Hawkins court reiterated the case law standard “that nothing less than the free consent of the resident owner of the homestead, and joint consent of husband and wife where that relation exists, will suffice to alienate the homestead.” 148 Kan. at 763. The court concluded that the acceptance of old-age assistance constituted a consent to grant the State a lien upon the homestead and, therefore, the statute did not violate the constitutional homestead provision. 148 Kan. at 764.
A forfeiture under K.S.A. 1991 Supp. 65-4135(a)(7)(A) is a forced sale which is not specifically authorized by any of the exceptions contained in Article 15, § 9 of the Kansas Constitution. As a result, we conclude that K.S.A. 1991 Supp. 65-4135(a)(7)(A) is unconstitutional.
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White, J.:
The Kansas University Police Officers Association (POA) appeals the district court’s order upholding the Public Employee Relations Board’s (PERB) ruling that Sergeants and Security Officers II of the POA are supervisory employees.
PERB’s ruling disqualifies Sergeants and Security Officers II from participating with the employees’ organization in meeting and conferring with the employer about any grievances or conditions of employment. The POA contends PERB misconstrued K.S.A. 75-4322(b), which provides:
“ ‘Supervisory employee’ means any individual who normally performs different work from his subordinates, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend a preponderance of such actions, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. A memorandum of agreement may provide for a definition of ‘supervisory employees’ as an alternative to the definition herein.” (Emphasis added.)
The entire argument centers on whether the phrase “who normally performs different work from his subordinates” excludes Sergeants and Security Officers II of POA from being supervisory employees.
We recognize that it is the intent of the legislature that governs. In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Cyr v. Cyr, 249 Kan. 94, 98, 815 P.2d 97 (1991).
The POA agrees that 75-4322(b) was “lifted” from the National Labor Relations Act (NLRA), 29 U.S.C. § 152(11) (1988), and admits that employees such as Sergeants and Security Officers II have been universally interpreted under the NLRA to be supervisory employees. However, the POA points out that the NLRA does not contain the phrase, “who normally performs different work from his subordinates.” Thus, the POA argues the legislature intended to alter the definition by including that phrase in 75-4322(b). It further argues that the phrase must have some effect on the definition of supervisory employees and recites our holding in American Fidelity Ins. Co. v. Employers Mut. Cas. Co., 3 Kan. App. 2d 245, Syl. ¶ 4, 593 P.2d 14 (1979), wherein it was stated: “A construction which renders part of a legislative act surplusage is to be avoided if reasonably possible.”
There is no indication as to when in the legislative process the phrase was engrafted with the NLRA’s definition of supervisory employees. It is not clear whether the phrase was included to restrict, expand, or merely clarify the scope of who is a supervisory employee.
Usually, interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deference. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991). The agency’s interpretation of a challenged statute may, in fact, be entitled to controlling significance in judicial proceedings. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719-20, 792 P.2d 971 (1990); Kansas Ass’n of Public Employees v. Public Employees Relations Bd., 13 Kan. App. 2d 657, 659, 778 P.2d 377 (1989).
The district court’s rationale for upholding PERB’s ruling that Sergeants and Security Officers II are supervisory employees under 75-4322(b) is:
“The PERB found Sergeants to be supervisory employees based on the following evidence: Sergeants have authority to issue written reprimands and recommend discipline, assign officers to various duties, and to perform evaluations. . . . The PERB found Security Officers II to be supervisory employees based on the following evidence: Security Officers II have ‘the authority to relieve security officers from duty, to issue written reprimands, to assign security officers to various routes, to recommend discipline, and to perform evaluations.’ . . .
“As the Hearing Examiner stated ‘the nature of one’s duties and not his or her title is determinative of that person’s status as a supervisor. ’ . . . The joint exhibits introduced at the PERB hearing reveal a Kansas University Police Sergeant is expected to ‘organize, direct, assign, and review the work of University Police Officers on one of three patrol shifts. . . . Coordinate with oncoming supervisor on activities occurring ...” for approximately 35% of his time. . . . Security Officer II is expected to spend 30% of his time doing similar tasks such as reviewing and assigning the work of Security Officers I. . . . On review this Court finds the administrative record supports the PERB’s Order which found Sergeants and Security Officers II to be ‘supervisory employees’ under a reasonable interpretation of K.S.A. 75-4322(b) which defines that term.”
We find, as did the district court, that PERB’s interpretation of 75-4322(b) comports with the legislative intent, is reasonable, and should be given controlling effect.
Next, the POA complains that PERB had reached the opposite view in Kansas City, Coffeyville, and Topeka where it found Sergeants not to be supervisory employees. The POA acknowledges that the doctrine of stare decisis does not apply to administrative agencies, but argues that PERB’s failure to offer any rationale for departing from previous unit determinations shows that its decision is arbitrary and capricious.
We note that the definition of a supervisory employee used in the Coffeyville and Topeka bargaining units was mutually agreed upon by the parties, as is expressly authorized by 75-4322(b). This leaves only Kansas City as an example of a unit determination in which PERB decided that Sergeants were not supervisory employees.
Our Supreme Court recently discussed the questions of whether administrative agencies are bound by their prior decisions and whether they need to articulate reasons for departing from those decisions. In In re Appeal of K-Mart Corp., 238 Kan. 393, 710 P.2d 1304 (1985), the Department of Revenue appealed a determination by the Board of Tax Appeals that advertising supplements distributed by K-Mart in newspapers were not subject to Kansas compensating tax. The Department of Revenue complained the Board of Tax Appeals had reached the opposite result when the same question concerning the same parties was raised earlier. The Supreme Court stated:
“Appellant asserts that the action of the BOTA was arbitrary because it failed to follow the earlier ruling in K-Mart I and did not articulate its reasons for not following the earlier ruling. The rule in Kansas, which is acknowledged by the appellant in its brief, is that the doctrine of stare decisis is inapplicable to decisions of administrative tribunals. [Citations omitted.] There is no rule in Kansas that an administrative agency must explain its actions in refusing to follow a ruling of a predecessor board in a different case or that it must articulate in detail why the earlier ruling is not being followed.” 238 Kan. at 396.
We find that PERB was under no duty to articulate any distinction in its unit detérminations. The structure of a police department in Kansas City may be different than the structure of a police department at the University of Kansas. A Sergeant is often the highest ranking officer on duty for the University of Kansas.,
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Briscoe, C.J.:
Steven Hill appeals from his jury convictions of possession of cocaine (K.S.A. 1990 Supp. 65-4127a), possession of marijuana (K.S.A. 1990 Supp. 65-4127b[a][3]), and possession of drug paraphernalia (K.S.A. 65-4152). We note that the issues raised would not affect the marijuana conviction.
Hill argues it was error to charge him with both possession of cocaine and possession of drug paraphernalia because the charges are multiplicitous. Further, he argues that, since the only cocaine discovered was residue in two vials and a plastic bag, he should have been charged with the more specific crime of possession of drug paraphernalia. We affirm.
After officers were called to investigate a disturbance at the Red Kitten Club in Salina, Kansas, an officer recognized Hill, who had just parked his car at the club. Earlier that evening, the officers checked’motor vehicle records and determined that Hill’s driver’s license had been suspended. When Hill could not produce a driver’s license, he was arrested.
An officer searched Hill and found rolling papers and a razor blade in his wallet and a brown vial with white powder residue in his pants pocket. The officer then looked in Hill’s car and found a Halloween bucket filled with plastic bags of a “green leafy substance.” At that point, the officer had the car towed to the police department. He later searched the car and found a Crown Royal bag that contained a pill bottle with a green leafy substance, a screen with white powder residue on it, 14 plastic bags with white powder residue, a straw, and a vial with a drug measuring device attached. He also found three vials with white powder residue and a black tote bag that contained plastic packets, firecrackers, razor blades, sunglasses, and other items.
The State tested the white powder residue in one of the plastic bags found in the Crown Royal bag, the white powder residue in one of the vials found in the car, and the white powder residue in the brown vial taken from Hill’s pocket, and all of the residue proved to be cocaine. The State also tested the green substance found in the pill bottle and the packets found in the Halloween bucket and it proved to be marijuana.
Hill was charged by complaint of possession of drug paraphernalia based on his possession of the razor blade, rolling papers, and vials. He was charged with possession of cocaine based on residue found in two plastic vials and in one plastic bag.
Hill contends he was incorrectly charged with a general offense, possession of cocaine, when he should have been charged only with a specific offense, possession of drug paraphernalia. Hill cites no case where this argument has been applied. In a related argument, Hill contends he should not have been convicted of both possession of cocaine and possession of drug paraphernalia because the charges are multiplicitous.
“[T]he rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case.” State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 (1988). “Multiplicity is the charging of two or more counts in a complaint where only a single criminal act is involved.” State v. Cathey, 241 Kan. 715, 718, 741 P.2d 738 (1987). “When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes.” K.S.A. 21-3107(1).
K.S.A. 1990 Supp. 65-4127a, which penalizes the possession of cocaine,, states in relevant part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under such person’s control, possess with intent to sell, offer for sale, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs.”
K.S.A. 65-4152 states in relevant part:
“(a) No person shall use or possess with intent to use:
“(2) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale' or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act.”
K.S.A. 65-4150 defines drug paraphernalia:
“(c) ‘Drug paraphernalia’ means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing,' concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controlled substances act. ‘Drug paraphernalia’ shall include, but is not limited to:
“(9) Capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled substances.
“(10) Containers and other objects used or intended for use in storing or concealing controlled substances.
“(12) Objects used or intended for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:
“(F) miniature cocaine spoons and cocaine vials.”
A review of the statutes reveals two independent statutes governing two independent crimes. There is no conflict between the statutes and, therefore, there is no reason to resort to rules of interpretation to determine which statute governs.
Both of Hill’s arguments depend in part on the fact that the only cocaine he actually possessed was found as residue in the plastic bag and vials he possessed. Specifically, he argues:
“K.S.A. 65-4127a generally proscribes possession of cocaine. Conversely, because the presence of residue on an object is a factor which renders that object drug paraphernalia, the statutory offense of possession of drug paraphernalia proscribed by K.S.A. 65-4152(a)(2) is a specific offense. Because the existence of residue may render an object drug paraphernalia, Mr. Hill’s conviction for possession of cocaine, based solely upon the residue, must be set aside as an improper general charge where the more specific charge of drug paraphernalia applies.”
Hill’s argument obfuscates the clear intent of the legislature in passing the statutes at issue. K.S.A. 1990 Supp. 65-4127a governs possession of cocaine while 65-4152 governs possession of items associated with the use of controlled substances. Sometimes cocaine will be found on the items used to ingest or store the drug. The presence of the drug on the item is one method of determining whether the item is drug paraphernalia. K.S.A. 65-4151(e).
Whether the courts actually determine the item to be paraphernalia and whether the possession of drug paraphernalia charge is appropriate depends on the circumstances and facts of each case. But, if the substance is cocaine, and the other requirements of 65-4127a are met, possession of cocaine is an ap propriate charge. “ ‘[T]he proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or useable/ ” State v. Brown, 245 Kan. 604, 613-14, 783 P.2d 1278 (1989). Since there is no conflict between 65-4127a and 65-4152, Hill’s argument that he can only be charged under the more “specific” possession of paraphernalia statute is without merit.
Likewise, in possessing drug paraphernalia with cocaine residue, Hill violated both 65-4127a and 65-4152. The charges are not multiplicitous. K.S.A. 65-4151 lists 14 factors to consider in determining whether an object is drug paraphernalia. Subsection (e) states that the court is to consider the “existence of any residue of controlled substances on the object” in making its determination, but the statute does not specifically state there must be drug residue on an object for that object to be considered drug paraphernalia. The State was not required to show the paraphernalia contained cocaine residue in order to prove Hill was guilty of possession of drug paraphernalia under 65-4152. The presence of cocaine on the objects was merely another factor for the court to consider.
There is authority from other jurisdictions which holds that convictions for both possession of cocaine and possession of drug paraphernalia, where the only cocaine is residue on the paraphernalia, are not multiplicitous and can be separately charged. In Bryant v. State, 559 So. 2d 414 (Fla. Dist. App. 1990), the court affirmed the defendant’s convictions of possession of drug paraphernalia (a pipe) and possession of cocaine found in that pipe. In Evans v. State, 543 So. 2d 326 (Fla. Dist. App. 1989), the court affirmed the defendant’s convictions of both unlawful possession of cocaine and unlawful possession of drug paraphernalia where the only cocaine found was in a pipe, because each offense had at least one different element. The court stated that use of the pipe to possess cocaine is not such an inherent part of the normal method of possession of cocaine that it could be assumed the legislature did not intend to separately punish a person for both offenses.
K.S.A. 1990 Supp. 65-4127a and K.S.A. 65-4152 have at least one different element and the two statutes are arguably aimed at two different substantive purposes. K.S.A. 1990 Supp. 65-4127a is aimed at proscribing contraband drugs while 65-4152 is aimed at proscribing paraphernalia employed in using contraband drugs. Because cocaine can be possessed in a variety of different ways, one can assume the legislature intended to separately punish a person for unlawful possession of paraphernalia.
Hill also contends there was insufficient evidence of his intent to possess cocaine. He argues the amount of cocaine found in the various containers was so small that there was no way he could have control over it and that the State failed to prove he knew he possessed cocaine.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
Possession of a controlled substance requires specific intent to exercise control over, the substance, with knowledge of the nature of the substance. Proof of the required elements for possession of a controlled substance may be established by circumstantial evidence. State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989). Proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or useable. Brown, 245 Kan. at 613-14.
There was cocaine residue found in a vial in Hill’s pants pockets; there was cocaine residue found in a vial in his car; and there was cocaine residue found in a plastic bag inside a Crown Royal bag in Hill’s car. In addition to these items, police found:
(1) a razor blade in Hill’s wallet (an officer testified razor blades are commonly used to cut up and prepare cocaine for snorting);
(2) a screen with powder residue inside the Crown Royal bag (which an officer testified was commonly used to reduce rock cocaine to powder);
(3) thirteen more plastic bags inside the Crown Royal bag (which an officer testified contained white powder residue and which are commonly used to hold cocaine);
(4) a straw inside the Crown Royal bag (which an officer testified is commonly used to snort cocaine);
(5) a vial with a drug measuring device inside the Crown Royal bag (which an officer testified is designed to dispense cocaine onto an attached spoon for snorting);
(6) two more vials with white powder residue found in the car; and
(7) a black tote bag containing plastic bags and razor blades. This evidence is sufficient for a rational factfinder to conclude beyond a reasonable cioubt that Hill knew the white powder residue was cocaine and that he intended to possess cocaine.
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Lewis, J.:
Clayton Northrup, defendant, appeals from his convictions by a jury of one count of the sale of methamphetamine and one count of the sale of marijuana.
The convictions were primarily based on evidence from two controlled purchases of illegal drugs from the defendant. The police had utilized the services of Leslie Bowley, who had agreed to work undercover for the authorities. Bowley made one buy of methamphetamine and one buy of marijuana from the defendant on separate occasions.
The defendant argues that his convictions should be reversed because the trial court erred in admitting into evidence a statement he made to the police officers. The defendant also argues that the evidence was insufficient to prove that the substance he sold to Bowley was marijuana. We affirm the defendant’s convictions.
Bowley had run afoul of the law himself and was charged with several drug-related violations. The authorities offered him a chance to dispose of these charges by working undercover and making drug buys for the police. Bowley accepted this proposition and was assigned to work with Detective Brad Homman of the Dickinson County Sheriffs Department.
On October 14, 1989, Bowley approached the defendant, seeking to purchase “crank,” or methamphetamine. The defendant produced a quantity of the substance, which Bowley purchased with money provided by the authorities. After the purchase, Bowley turned over the substance to Detective Homman. Detective Homman performed a field test on the substance, concluded it was a controlled substance, and sent it to the KBI laboratories for further examination and identification.
On November 10, 1989, a warrant was issued for the arrest of the defendant. The warrant was issued pursuant to a complaint, charging the defendant with the sale of methamphetamine on October 14, 1989, as well as with other crimes. Contempora neously, a search warrant authorizing the search of the defendant’s home was obtained.
On November 11, 1989, Bowley made a second controlled purchase from the defendant. On this occasion, he purchased a substance alleged to be marijuana for the price of $120 per ounce. The facts of the purchase will be further developed.
After the purchase was made on November 11, 1989, the authorities arrested the defendant and searched his home under the authority of the search warrant issued. Subsequent to his arrest, the defendant made several unprompted statements. These statements included comments to the effect that many times a five-dollar bill from a drug purchase had provided food for his family. He also expanded upon his belief that drugs should be legalized and that drugs were no worse than alcohol. These statements were admitted at trial during cross-examination of the defendant and during the State’s rebuttal evidence.
Prior to the trial, the court granted the defendant’s motion to suppress the evidence seized from his residence. The court concluded that the affidavit used to obtain the search warrant was insufficient and that the search was illegal. The State does not appeal from that ruling.
THE STATEMENTS
The defendant contends that his convictions should be reversed because of error by the trial court in admitting into evidence the spontaneous statements referred to earlier in this opinion.
The defendant’s argument evolves from the order of the trial court suppressing illegally seized evidence. The defendant argues that his statements were the indirect products of the unconstitutional search. According to Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182 (1920), the exclusionary rule extends to the indirect as well as the direct products of an unlawful search. Furthermore, policies underlying the exclusionary rule invite no logical distinction between physical or verbal evidence. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Underlying the defendant’s argument is his insistence that the State lacked probable cause to arrest him without the suppressed evidence. In addition, he argues that not enough time elapsed between the illegal search and his statements to dissipate the taint - of illegality. As a result, the defendant submits that his statements were “fruits of the poisonous tree” and, therefore, inadmissible.
The State counters by pointing out that the statements were made as a result of a legal arrest, which had nothing to do with the illegal search and seizure. This position is fortified by the fact that the police officers went to the defendant’s home not only with a search warrant, but also , an arrest warrant, which authorized the arrest, of the defendant for his sale of methamphetamine to Bowley on October 14, 1989. The defendant’s arrest on.an arrest warrant issued prior to the illegal search indicates that the defendant’s statements were not the “fruits” of the illegal search.
“Assuming the illegality of the search, the question narrows to one of determining whether defendant’s statements were brought about by that illegality rather than by means sufficiently distinguishable to be purged of the primary taint. Under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, the fruits of the poisonous tree doctrine, when applicable, not only bars derivative physical evidence, but also derivative testimonial evidence, . . . The [fruits of the poisonous tree] doctrine is inapplicable, however, where the state learns of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.” State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1977).
We hold that the position taken by the State is meritorious. •The evidence shows that, on October 14, 1989, Bowley purchased a controlled substance from the defendant. This sale by the defendant was a violation of the law and subjected him to arrest. On November 10, 1989, a warrant was issued for the defendant’s arrest based, at least partially, on the first sale to Bowley. There is no challenge by the defendant to the validity of the arrest warrant. It follows -that the defendant’s arrest on a warrant for an illegal drug sale, which occurred prior to the search, was not and could not have been based on evidence illegally seized from the defendant’s premises. The statements made by the defendant while in custody under the arrest warrant could not be considered “fruits” of an illegal search. The defendant’s argument that the statements were inadmissible is without merit.
The defendant’s argument fails on another ground as well. The offending statements were not offered by the State as part of its case in chief. The statements were offered first during the cross-examination of the defendant in an effort to impeach his direct testimony. The defense to the charges was that the defendant had worked undercover with Detective Homman in the past. He attempted to explain the drug sales by suggesting they were done in an effort to gain the confidence of the drug community and to improve on his undercover skills. The defendant testified that he advised the arresting officers of his motivation as he was being escorted from his house to the jail. However, when asked what else he may have said to the police officers, the defendant would only state that all other comments were “mumbled or garbled.”
In an effort to impeach this testimony, the defendant was asked if he made statements to the police concerning drug money, putting food on the table, and his belief that drugs should be legalized. These questions were asked in an effort to show that all of his statements were not “mumbled or garbled.” The State argues that it made use of the complained-of statements only to discredit prior testimony of the defendant.
As a general rule, evidence obtained by an illegal search and seizure is not admissible against the accused. This rule, however, does not extend to a situation where the evidence is used to discredit the defendant’s voluntary testimony. Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954). Use of illegally obtained evidence to impeach statements made by the defendant during cross-examination is also permitted. United States v. Havens, 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912 (1980). We hold that the complained-of statements were properly admitted during the cross-examination of the defendant to impeach his direct testimony. The prior out-of-court statements by the defendant certainly tended to impeach his direct testimony and his insistence that most of what he said was “mumbled or garbled.” The same rationale supports the use of the statements as rebuttal evidence by the State.
The trial court did not err in admitting the statements under the circumstances shown.
SUFFICIENCY OF THE EVIDENCE
This argument relates only to the conviction for possession and sale of marijuana. There was no exhibit admitted into evidence containing what was identified as marijuana. In addition, no expert testimony or laboratory analysis was admitted to identify the substance as marijuana. Although the State attempted to introduce such evidence, its admission was denied by the trial court. The defendant argues that, under the circumstances, the evidence was insufficient to prove that the substance he sold to Bowley was marijuana.
This is a case of first impression in this State. There are no Kansas decisions holding that circumstantial evidence is sufficient to prove the identity of a substance as marijuana or another controlled substance. We believe that, despite the lack of expert laboratory analysis to. prove the identity of the substance, this identity may be proven by circumstantial evidence. The courts of our four sister states bordering us have all sustained this general proposition. People v. Steiner, 640 P.2d 250 (Colo. App. 1981); State v. Kerfoot, 675 S.W.2d 658 (Mo. App. 1984); State v. Nash, 233 Neb. 318, 444 N.W.2d 914 (1989); State v. Watson, 231 Neb. 507, 437 N.W.2d 142 (1989); Swain v. State, 805 P.2d 684 (Okla. Crim. 1991).
In addition to these adjoining states, the federal courts in at least 6 circuits and 19 other states have concluded that the proof of marijuana or another controlled substance may be sustained by circumstantial evidence. United States v. Sanchez DeFundora, 893 F.2d 1173 (10th Cir. 1990); U.S. v. Baggett, 890 F.2d 1095 (10th Cir. 1989); U.S. v. Meeks, 857 F.2d 1201 (8th Cir. 1988); United States v. Eakes, 783 F.2d 499 (5th Cir. 1986); United States v. Murray, 753 F.2d 612 (7th Cir. 1985); United States v. Harrell, 737 F.2d 971 (11th Cir. 1984); United States v. Scott, 725 F.2d 43 (4th Cir. 1984); United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976); United States v. Lawson, 507 F. 2d 433 (7th Cir. 1974), cert. denied 420 U.S. 1004 (1975); Alabama: Jenkins v. State, 46 Ala. App. 719, 248 So. 2d 758 (1971); Johnson v. State, 501 So. 2d 568 (Ala. Crim. App. 1986); Alaska: Winters v. State, 646 P.2d 867 (Alaska App. 1982); Arizona: State v. Cunningham, 17 Ariz. App. 314, 497 P.2d 821 (1972); California: People v. Garcia, 166 Cal. App. 3d 1056, 212 Cal. Rptr. 822 (1985); Connecticut: State v. Cosgrove, 181 Conn. 562, 436. A.2d 33 (1980); Florida: Pama v. State, 552 So. 2d 309 (Fla. Dist. App. 1989); A.A. v. State, 461 So. 2d 165 (Fla. Dist. App. 1984); Hawaii: State v. Schofill, 63 Hawaii 77, 621 P.2d 364 (1980); Illinois: People v. Ortiz, 197 Ill. App. 3d 250, 554 N.E.2d 416 (1990); People v. Eichelberger, 189 Ill. App. 3d 1020, 546 N.E.2d 274 (1989); Indiana: Warthan v. State, 440 N.E.2d 657 (Ind. 1982); Copeland v. State, 430 N.E.2d 393 (Ind. App. 1982); Kentucky: Edwards v. Commonwealth, 489 S.W.2d 23 (Ky. 1972); Michigan: People v. Boyd, 65 Mich. App. 11, 236 N.W.2d 744 (1975); Montana: State v. Starr, 204 Mont. 210, 664 P.2d 893 (1983); New Jersey: State v. Pipkin, 101 N.J. Super. 598, 245 A.2d 72 (1968), cert. denied 393 U.S. 1042 (1969); New Mexico: State v. Rubio, 110 N.M. 605, 798 P.2d 206 (1990); New York: People v. Jewsbury, 115 App. Div. 2d 341, 496 N.Y.S.2d 164 (1985); People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S. 2d 392, 282 N.E.2d 295 (1972); Pennsylvania: Commonwealth v. Leskovic, 227 Pa. Super. 565, 307 A.2d 357 (1973); Texas: Miller v. State, 168 Tex. Crim. 570, 330 S.W.2d 466 (1959); Washington: State v. Hutton, 7 Wash. App. 726, 502 P.2d 1037 (1972); West Virginia: State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979).
It is apparent that a scientific chemical analysis of a substance will provide the most reliable evidence as to the identity of that substance. Despite that fact, we are not convinced that it is only the evidence of identity that will sustain a criminal conviction. We are, therefore, in agreement with the holdings set forth in the cases cited above. We hold that proof of the identity of a substance by circumstantial evidence may be sufficient in a drug prosecution where no chemical tests are admitted or available. Our holding, of course, does not dispense with the requirement that the circumstantial evidence presented must prove the identity of the substance beyond a reasonable doubt.
The next step in our analysis is to determine whether the evidence in the instant matter was sufficient to prove beyond a reasonable doubt that the substance the defendant sold to Bowley was marijuana.
First, in passing on the sufficiency of the evidence to sustain a criminal conviction, we decide not whether the evidence would have persuaded us to return a guilty verdict, but whether, viewing the record in the light most favorable to the government, there was substantial evidence from which the jurors could have concluded without a reasonable doubt that the defendant committed the offense charged. United States v. Meeks, 857 F.2d at 1203-04; United States v. Dolan, 544 F.2d at 1221.
“A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989). When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Smith, 245 Kan. at 392.” (Emphasis added.) State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
See State v. Gibson, 246 Kan. 298, 303, 787 P.2d 1176 (1990); State v. Damewood, 245 Kan. 676, 687, 783 P.2d 1249 (1989).
“It is a jury’s prerogative to determine the weight to be given to the evidence, the reasonable inferences to be drawn from the evidence, and the credibility of the witnesses. It is not the function of an appellate court to determine the credibility of witnesses even if there is evidence which could have caused the jury not to believe the witness.” State v. Gibson, 246 Kan. 298, Syl. ¶ 3.
“It is the jury’s function, and not an appellate court’s, to weigh the evidence and pass upon the credibility of witnesses. State v. Pink, 236 Kan. at 729; State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977). An appellate court will not substitute its evaluation of the evidence for that of the jury.” State v. Holley, 238 Kan. 501, 511, 712 P.2d 1214 (1986).
See State v. Green, 245 Kan. 398, 403, 781 P.2d 678 (1989).
We have reviewed the record in this matter in accordance with the standards of review cited above. Based on that review, we hold that the evidence was sufficient to convince a rational jury of a defendant’s guilt of possession and sale of marijuana beyond a reasonable doubt.
We respect the integrity of the jury system, and any other conclusion would not be in harmony with that respect.
The evidence in this case shows that Bowley approached the defendant on November 11, 1989, and asked to purchase some marijuana. The defendant responded by telling Bowley that he could get him some and told him to come back in a half hour or 45 minutes. Bowley asked the defendant how much it would cost per ounce, and the defendant advised him that the cost for an ounce of the substance would be $120. When Bowley returned, he went to a garage where he met the defendant. He testified:
“A. Right. Clayton, whatever his name is, came through, and I could see a big bulge under his shirt, you know, when, he came, and he called me in his garage. He got out a bag of marijuana. He said he watched the guy weigh it, it weighs over an ounce and it’s real good. There was more if I wanted it. I gave him a hundred twenty dollars, I put the ounce under my shirt, walked out to the car, got in the car, set it on the seat beside me and drove out of town and gave it to Brad, at our meeting place.
“Q. How did you know what the cost of the marijuana was going to be?
“A. Clayton had told me.”
The evidence indicated that Bowley was an individual who was involved in the drug trade. He had been arrested and charged with several counts of illegal drug transactions, which had led to his agreement to work undercover. The defendant testified that, when he had worked undercover, he had made several drug buys from Bowley.
Detective Homman testified that, during the time Bowley was purchasing.the marijuana, he was' wearing a “wire.” Detective Homman overheard the conversation between Bowley and the defendant and verified Bowley’s testimony concerning that conversation. Detective Homman also testified that he was a member of the drug enforcement task force of Dickinson County and that he had special training in drug law enforcement and education. He indicated that part of the procedure in this type of case was to conduct a field test on the drug purchased. These tests help to determine if the substance purchased is the illegal drug suspected and whether to send it to the KBI for analysis. Detective Homman conducted a field test on the substance purchased by Bowley from the defendant and, as a result, sent it' on to the KBI for further testing. Detective Homman testified that the substance purchased by Bowley from the defendant was “a plastic bag containing a green vegetation.” He indicated that the substance “looked like marijuana to me.”
Finally, the defendant took the stand on his own behalf. The defendant confirmed that Bowley approached him seeking to buy drugs and that, “I told him that I knew where there was some marijuana.” The defendant then told Bowley to leave and come báck in a few minutes. He testified as follows:
“Q. All right. What did you do after Mr. Bowley left?
“A. I proceeded to get him an ounce of marijuana.’’
The defendant was also asked, “You got some marijuana somewhere?” and he replied, “Oh, the — yes, the ounce.” The defendant also testified that Bowley asked for marijuana, that he told Bowley that he would sell him marijuana, and that he would not “to my knowledge” get him something that was not marijuana. As to the defendant’s knowledge about marijuana, the defendant testified:
“Q. What did you know?
“A. I knew what marijuana was.
“Q. How did you know that?
“A. Previously, in school and stuff, I’d seen it used. Have to be blind not to, in this day and age.”
We consider the evidence outlined above to be sufficient to convince the jury, beyond a reasonable doubt, that the defendant sold marijuana to Bowley. The record does not contain even the slightest suggestion that what the defendant sold Bowley was anything other than marijuana. The defendant admitted by his own testimony that he obtained and sold marijuana to Bowley and even insisted that he would not give Bowley anything that was not marijuana. There was strong and considerable evidence to indicate the substance was marijuana, and there was absolutely no evidence to suggest it could have been anything else. Under these circumstances, a rational jury could certainly have concluded that the substance was marijuna beyond a reasonable doubt.
We have analyzed the federal and state decisions in point, which are cited in this opinion. As might be expected, the factual patterns shown are diverse. In some cases, the evidence might have been stronger than we have in this matter; in others, not as impressive. These decisions teach us only that circumstantial evidence, in whatever form it comes, can be sufficient for a conviction.
United States v. Dolan, 544 F.2d 1219, appears to be a leading case in this area and is quoted with approval in United States v. Sanchez DeFundora, 893 F.2d 1173, and U.S. v. Baggett, 890 F.2d 1095. In Dolan, the court suggested that a variety of circumstances would provide sufficient proof:
“Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence. [Citations omitted.]” 544 F.2d at 1221.
We do not read Dolan or Sanchez DeFundora as attempting to establish an exclusive and required list of circumstances, all of which must be present. We interpret the listing as illustrative only. In the case at bar, we have proof that the substance was a green vegetation; testimony that $120 was paid for one ounce of it; evidence that secrecy and deviousness was employed in the transaction; and, finally, evidence that everyone involved, including the defendant, referred to and identified the substance as marijuana.
There are a number of other cases in accord with our decision on a factual basis.
In United States v. Lawson, 507 F.2d 433, the court held that the following evidence identified the substance in question as cocaine sufficiently to support convictions for conspiracy: The defendant’s girlfriend and the purchaser testified that the substance was a white powder; they also testified that the defendant spoke of selling cocaine; the purchaser paid the defendant a substantial amount of cash for the white powder; and the transaction was carried on in secret.
In United States v. Eakes, 783 F.2d 499, the substance was cocaine. The evidence indicated that the various conspirators referred to it as cocaine; it was packaged in kilos, as cocaine is normally packaged; the transactions were carried out in secret; and the sellers received large cash payments for the substance. The co-conspirators had successfully imported and sold the substance three times successfully. This evidence was held to be sufficient to go to the jury on the question of whether the substance was cocaine.
In United States v. Murray, 753 F.2d 612, 615, the court said:
“Based on the totality of the circumstances and the evidence adduced, and in particular the identification of the substance as marijuaná by [two members of the marijuana distribution organization], the high price charged for the marijuana and the covert nature of the purchases, we hold that the evidence was more than sufficient to support a finding that the substance purchased by [defendant] was marijuana.”
In Murray, the evidence indicated that one of the witnesses testified that the. substance “looked like marijuana” and “smelled like marijuana.” 753 F.2d at 614.
In A.A. v. State, 461 So. 2d 165, the Florida appellate court upheld an adjudication of delinquency based on possession. of marijuana. In that case, the sole evidence identifying the substance as marijuana was the testimony of the arresting officer who testified that, in his opinion, the substance was marijuana.
In the Florida case of Pama v. State, 552 So. 2d 309, the defendant was charged with possession' of greater than 10,000 pounds of marijuana. The police boarded the defendant’s fishing boat and found 234 bales of what they identified as marijuana. The deputies randomly selected 13 bales, which they testified were marijuana. The Florida court held this testimony to be sufficient to identify all 234 bales as being marijuana.
In State v. Kerfoot, 675 S.W.2d at 661, the Missouri appellate court commented on the evidence as follows;
“A state’s witness, a forensic chemist, testified that the growing plants and the matter seized from the trailer were marijuana. Sheriff Waide testified without objection that, the plant material seized from the grain bin, hog shed, and tool shed was marijuana. 'Police officers can testify that in their opinion a certain substance is marijuana. Such testimony is sufficiént, in the absence of a chemical analysis by an expert,- to make a submissible case on this issue. [Citation omitted.]” . .
In State v. Rubio, 110 N.M. at 608, the substance iri question was cocaine. There was no chemical analysis,' and the court held circumstantial evidence to be sufficient to sustain the conviction:
“In this case, there is ample circumstantial evidence supporting the jury’s finding that the substance transferred from Askew to defendant was cocaine. In addition to Askew’s testimony that the substance was cocaine, there was evidence of the secretive manner in which the transaction was arranged. Askew testified that he asked defendant not to mention cocaine on the telephone, but rather to say simply that he needed to meet with Askew. The price for the substance ranged from $200 to . $225 for one-eighth of an ounce. Askew testified that the substance’ dissolved clearly iri water. He also stated that defendant kept coming back for more of the substance. Finally, there was evidence that Askew had successfully been engaged in the business of selling cocaine for about one year, and had fifteen to twenty regular customers.”
The most recent decision to our knowledge is Swain v. State, 805 P.2d 684 (Okla. Crim. 1991). The facts of that case are quite similar to the ones presently before this court. In Swain, the “buy” was set up by an informant. The defendant had the substance in the trunk of his car and characterized it as “very good stuff.” The Oklahoma court, in sustaining a verdict of guilty, characterized the evidence.
“Applying the criteria set forth in Sanchez DeFundora to the facts of the present case, we find the following. All three of the State’s witnesses opined that the substance found in appellant’s trunk appeared to be marijuana. Furthermore, the marijuana was described by Bruce Justice as a ‘green leafy substance.’ Although the price appellant asked for the marijuana was not revealed, the informant stated that he needed to obtain more money before he could purchase the substance. In that appellant kept the substance in a plastic container in the trunk of his car and because the buy was to occur in a parking lot late at night, it can be concluded that said transactions were carried on with secrecy or deviousness. With respect to the final example cited above, appellant repeatedly referred to the substance in question as marijuana. Also of consequence were the remarks of appellant and his companion that the substance was ‘very good stuff, and appellant’s assertions that he could get as much marijuana as the informant wanted.” (Emphasis added.) 805 P.2d at 686.
The decisions reviewed indicate that, under the factual situation presented to us, the evidence was sufficient to permit the jury to conclude the defendant sold Bowley marijuana. We hold that it was sufficient to prove this fact beyond a reasonable doubt.
What we decide here is not revolutionary. In this state, circumstantial evidence has always been sufficient to ,make a submissible case of criminal activity. The only true yardstick for us to apply is whether the proof is sufficient beyond a reasonable doubt. Our function is not to usurp the jury process, which is at the very heart of our criminal system. We are not willing to become the factfinders by saying that this jury could not have found this defendant guilty under the evidence submitted.
We close by pointing out that the most reliable and least controversial method of proving the identity of a substance is a reliable chemical analysis of that substance. We do not mean to imply that prosecutors should forego obtaining such chemical ev idence in the future. Indeed, we suggest that such chemical analysis is preferable. When that analysis is not available or not present, the question of whether the evidence is sufficient must be made on a case-by-case basis. Under the facts of this case, we hold the evidence was sufficient.
Affirmed. | [
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Pierron, J.:
This is an appeal by Victoria Elder from the trial court’s denial of her request for visitation rights with J.M.U., Elder’s deceased son’s unmarried minor child, after J.M.U. was adopted by maternal relatives following the death of her parents.
J.M.U. was born on February 20, 1989, to Santiago Urquieta and Robin Lee Kilpatrick. On April 12, 1989, when J.M.U. was not yet two months old, Santiago killed Robin and took his own life. Kimberly Spunaugle, Robin’s sister, took J.M.U. into her care immediately after the double tragedy.
On May 2, 1989, Wanda West, J.M.U.’s maternal grandmother, was appointed to serve as J.M.U.’s guardian. West agreed to Elder’s entitlement to and exercise of visitation rights with J.M.U. J.M.U. was adopted by Kimberly and her husband, Scott Spunaugle, on September 8, 1989. After the adoption, the Spunaugles did not allow Elder to visit J.M.U. Elder instituted this proceeding by filing a petition seeking visitation rights with J.M.U. The trial court, finding no statutory authority to support Elder’s request, denied the request.
We are confronted with the question of whether a parent of a deceased parent of an unmarried minor child is entitled to visitation rights with the child after the child’s adoption by a third party:.
In this case, whether the sought-after visitation would be in the best interests of the child and whether there is a substantial relationship between the child and her grandparent are questions the trial court conscientiously considered and answered in the affirmative. Those findings are not challenged on appeal.
We disagree with the trial court’s finding that Elder is not entitled to visitation rights with J.M.U. and reverse.
In Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974), our Supreme Court was faced with the question of whether a paternal grandmother was entitled to the right of visitation with her deceased son’s child after the child was adopted by the child’s stepfather. The Supreme Court denied the right of visitation.
The version of K.S.A. 38-129 that applied in Browning provided:
“If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be in the best interests of the minor child.” K.S.A. 1971 Supp. 38-129.
The version of K.S.A. 59-2103 that then applied provided:
“Any [adopted child] . . . shall be entitled to the same rights of person and property as a natural child of the person . . . adopting the child. The person . . . adopting such child shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relation. Upon . . . adoption all rights of natural parents to the adopted child . . . shall cease, except the rights of a natural parent who is the spouse of the adopting parent.” K.S.A. 1971 Supp. 59-2103.
In Browning, a paternal grandmother, Tarwater, had obtained a district court order granting her visitation rights with her deceased son’s child. The case came before the Supreme Court on an appeal by the child’s mother from the trial court’s denial of the child’s mother’s motion for termination of Tarwater’s right of visitation. After the child’s father’s death, the child’s mother had remarried and the child was adopted by the stepfather. Over a strong and eloquent dissent by Justice Fontron, the Supreme Court reversed the trial court’s refusal to terminate Tarwater’s ordered right of visitation.
In arriving at its decision in Browning, the Supreme Court reasoned and held that the adoption of the child by the stepfather controlled the disposition of the question. An effect of the adoption was to prohibit the natural paternal grandmother from exercising visitation rights because, by the adoption, the child had a new father and new paternal grandparents. 215 Kan. at 506. Within the Browning majority opinion, it was stated:
“In our opinion K.S.A. 38-129 was not designed by the legislature to overturn the previously established adoption laws of the State of Kansas, but was enacted and intended to apply subject to the adoption laws. In other words, adoption proceedings properly conducted and accomplished under the probate code override 38-129, 38-130 and 38-131.” 215 Kan. at 506.
After Browning, the adoption statute, K.S.A. 59-2103, underwent legislative change. The pertinent part of that statute in effect for the purposes of the case before us reads:
“(b) When adopted, a child shall be entitled to the same personal and property rights as a natural child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relationship. Upon adoption all the rights of natural parents to the adopted child, including their rights to inherit from the child, shall cease, except the rights of a natural parent who is the spouse of the adopting parent.
“(c) If a parent of a child is deceased and the surviving parent’s spouse adopts the child, the parents of the deceased parent may be granted reasonable visitation rights to the child in accordance with K.S.A. 38-129 and amendments thereto.” K.S.A. 59-2103.
Even more significant are the changes that the legislature enacted concerning K.S.A. 38-129 after Browning. In 1982 the statute was amended to read:
“(a) If a parent of an unmarried minor child is deceased, the district court may grant the parents of the deceased person reasonable visitation rights to the minor child during the child’s minority upon a finding that the visitation rights would be in the best interests of the minor child.
“(b) Unless the court finds that the visitation rights are not in the child’s best interests, the district court may grant visitation rights, or enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”
As was the obvious purpose of the new subsection (c) of K.S.A. 59-2103, new subsection (b) of the 1982 version of K.S.A. 38-129 was intended to specifically overrule Browning. No wider purpose need be assumed.
In 1984 the present form of K.S.A. 38-129 was enacted, which reads:
“(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established.
“(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”
Of greatest importance in the new language is that all restrictions on granting reasonable grandparent visitation are removed save the establishment that it be in the interests of the grandchild and that a substantial relationship between the grandchild and the grandparent has been established.
Subsection (b) of K.S.A. 38-129 provides that the broad new grant of visitation authority can be exercised even if the moving grandparent’s child has died and the surviving parent has remarried and the new spouse has adopted the child. The language is not “only if.”
The purpose of the 1984 changes was not only to overrule Browning. That was accomplished by the 1982 changes.
The obvious expansion of the statutory provisions for grandparent visitation after Browning shows a clear legislative intent to provide for precisely what K.S.A. 38-129(a) orders — grandparent visitation if it is in the child’s best interests and there is a substantial grandparent-grandchild relationship in place. Death, divorce, or adoption are not mentioned as prerequisites.
Although the Supreme Court may have been concerned about unintentional modification of the adoption statutes by the legislature as a basis for the Browning decision, that cannot be a concern now. By specific legislative enactment the law as announced in Browning has been overruled. In addition, the possiblity for grandparent visitation has been unmistakably broadened by the same statute.
We acknowledge it can be argued (pursuant to Browning) that K.S.A. 38-129 is not applicable to adoption situations. However, since the question of grandparent visitation after adoption was addressed in K.S.A. 38-129 subsequent to Browning (and seemingly in reaction to Browning), we do not find such argument persuasive.
Further, in 1990 the legislature enacted a modernized adoption code. K.S.A. 1990 Supp. 59-2111 et seq. It eliminated any mention of the question of grandparent visitation following adoption from the adoption code, but left K.S.A. 38-129 intact. This would tend to confirm the view that K.S.A. 38-129 is applicable to adoption situations as it is the only statute specifically concerning grandparent visitation after adoption (or under any other circumstances).
Although Browning, in the absence of any specific legislative pronouncement, abolished grandparent visitation in adoption situations similar to the instant case, specific legislation governing this question is now in place, and in only one place — K.S.A. 38-129.
By specific disapproval of Browning, repeal of K.S.A. 59-2103, and the retention and expansion over the years of K.S.A. 38-129, the legislature has joined Justice Fontron’s position in Browning that the grandparent-grandchild relationship should be fostered where it is in the grandchild’s best interests and the relationship already exists.
Since the trial court found there was a substantial relationship and that visitation was in the best interests of the child, but denied visitation only on the legal grounds we have discussed, we reverse the decision and remand the case to the trial court to order reasonable grandchild-grandparent visitation.
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Hill, J.:
The natural father of Baby Boy S. appeals the trial court’s decision terminating his parental rights pursuant to K.S.A. 1990 Supp. 59-2136. The controlling issue is whether the findings of fact by the trial court are supported by substantial competent evidence of clear and convincing quality.
K.S.A. 1990 Supp. 59-2136(h)(4) states:
“(h) When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a .finding by clear and convincing evidence, of any of the following:
“(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.”
No reported Kansas appellate opinion has construed K.S.A. 1990 Supp. 59-2136(h)(4) or its predecessor, K.S.A. 1989 Supp. 38-1129(c)(4) (repealed L. 1990, ch. 145, § 38). Nonetheless, opinions filed prior to enactment of the statutes disclose general principles of law applicable to this case.
“When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.”
“In a determination under K.S.A. 1986 Supp. 59-2102(a)(3) of whether consent of a parent to an adoption is unnecessary for failure to assume parental duties, the best interests of the child is not a controlling factor in the decision.”
“In making a determination pursuant to K.S.A. 1986 Supp. 59-2102(a)(3), the fitness of the nonconsenting parent is not a controlling factor as it would be under proceedings pursuant to K.S.A. 38-1581 et seq.”
“Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required.”
“In making a determination in an adoption proceeding of whether a non-consenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered.” In re Adoption ofF.A.R., 242 Kan. 231, Syl. ¶¶ 2-6, 747 P.2d 145 (1987).
This case is analogous to cases where the trial court must determine if a parent has failed or refused to assume the duties of a parent for two consecutive years prior to an adoption pursuant to K.S.A. 1990 Supp. 59-2136(h)(7) (repealing and replacing K.S.A. 1989 Supp. 59-2102[a][3]). The tests and rules applicable in those instances are equally applicable when a trial court must determine whether a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.
The natural father and the adoptive parents of Baby Boy S. agree that In re Adoption of F.A.R., 242 Kan. 231, is controlling. Our Supreme Court held: “[T]here is no error in admitting evidence of events occurring prior to that period to the extent it is relevant to explain or prove conduct or lack thereof during the two-year period.” 242 Kan. at 238. Applying that rule to this case, the district court properly considered relevant evidence of the father’s conduct that occurred prior to the six-month period before the birth of Baby Boy S.
The natural father contends his incarceration from August 1990 until the birth of Baby Boy S. in February 1991 prevented him from being able to support the mother. He also argues that prior to his incarceration he made efforts to support the mother by working for his parents, giving her his only paycheck, babysitting her other children, and attempting to provide a home for her. The father points to the following statement: “When a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.” In re Adoption of F.A.R., 242 Kan. at 236.
In reply, the adoptive parents argue the mother testified that the father did not provide her with money, groceries, or a place to live, nor did he give her his paycheck or babysit her other children. Moreover, the mother stated the father showed a complete disregard for supporting her before his incarceration. A father’s unwillingness to support his children before he is pre vented from doing so is a factor the court may consider. See In re Adoption of B.C.S., 245 Kan. 182, 188, 777 P.2d 776 (1989).
The trial court, immediately after hearing the evidence, made extensive findings of fact and sorted out conflicting testimony.
An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. The evidence is to be viewed in the light most favorable to the party prevailing below.
The mother testified that the father never furnished her with any food or money after he learned of her pregnancy. She denied that he had turned over his only paycheck to her. The evidence indicates that the father lived with the mother four weeks at most, but he may have spent the night on other occasions. The trial court concluded that the father made no effort to inquire after the welfare of the mother in her pregnant condition.
The facts of the case here are in dispute. The trial court, however, upon hearing and considering all of the evidence and making extensive findings of fact, came to a conclusion that is supported by substantial competent evidence of clear and convincing quality.
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Buchele, J.:
This is an action by joint account holders against an administrator, questioning the right of a conservator to terminate their, interest, in:joint bank accounts which; weré established by the conservatee prior , to her incapacity.
In July 1976, Pauline Briley established joint accounts at the Twin Lakes State Bank and Southwest Federal Savings and Loan (now Capitol Federal Savings ,& Loan) in Wichita. The Twin Lakes account carried John B. Morris, Briley’s nephew, as. an additional party and- the Southwest account carried Carole A. Byram, her niece, as a joint tenant. Both accounts provided for eqüál access to the funds by the joint account holders. In April 1987, after Briley had suffered á stroke, Robert L. Davis was appointed conservator for Briley. The conservator shortly after his appointment closed both of the joint accounts and opened new accounts in his name as conservator in each of the respective financial institutions. The funds remained intact until Briley died on October 16,. 1990;, leaving as .heirs her husband and two brothers.
This appeal is by the decedent’s-niece and nephew from. .the trial court’s decision that the conservator’s closure of the joint accounts terminated their interest and that the proceeds from the two accounts held by the conservator at the time of Briley’s death were properly included as a part of the inventory of her probate estate. We reverse and remand this cause for further proceedings.
The issue' presented- in this appeal is a question ,of law. It involves the interest of joint account holders in funds withdrawn from the joint account by a conservator. It does not involve a conservator’s authority to withdraw from or to close the joint account. ,-
Our review of the trial court’s decision is unlimited as to questions of law. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). And, when the controlling facts, are based on stipulations and documentary evidence, this court may determine de novo what the facts establish. Bell v. Tilton, 234 Kan. 461, 468, 674 P.2d 468 (1983).
We find ho Kansas case which defines the rights of the shrviving party to the proceeds from a. joint account which remain in the hands of a conservator after the conservatee’s death: • .
Kansas statutes give conservators broad powers. K.S.A. 1991 Supp. 59-3019. As a fiduciary, a conservator has a general duty to exercise the diligence and prudence ordinarily employed by reasonable people toward management of a conservatee’s estate. McAdam v. Fireman's Fund Insurance Co., 203 Kan. 123, 127, 452 P.2d 851 (1969). The conservator’s duties include taking reasonable steps to manage and protect the conservatee’s assets from dissipation, including dissipation by joint depositors or others with access to the property. K.S.A. 1991 Supp. 59-3019. See Restatement (Second) of Trusts § 175-80 (1957).
The powers of a conservator are not unlimited. The Kansas Supreme Court in Union National Bank of Wichita v. Mayberry, 216 Kan. 757, 761, 533 P.2d 1303 (1975), said:
“The conservator’s duty, however, is to manage the estate during the conservatee’s lifetime. It is not his function nor that of the probate court supervising the conservatorship directly to control disposition after death. A guardian has no power to make a will for his charge. Execution of a will by the latter does not therefore interfere with the fiduciary’s function [Citation omitted.].”
“Although not strictly in point we note that in the context vis-a-vis incompetent ward and his guardian it has been held the right to change the beneficiary in a life insurance policy owned by the ward remains a personal right of the insured over which the guardian has no power (see anno: Change of Incompetent’s Beneficiary, 21 ALR 2d 1191).” 216 Kan. at 762.
The Kansas Supreme Court in an earlier care voided the sale by a guardian of payable-on-death government bonds owned by the conservatee. The court noted that the sale of the bonds was not required to pay the conservatee’s debts and expenses and therefore the sale fell “far short of the meticulous care the law requires of guardians.” In re Estate of Cornelison, 178 Kan. 607, 613, 290 P.2d 1016 (1955).
One other Kansas case deals with a conservator’s access to a joint tenancy account. This court adopted a case-by-case approach in deciding whether there was a conflict of interest between a conservator’s fiduciary duty and his personal interest as a joint account holder. In Fielder v. Howell, 6 Kan. App. 2d 565, 631 P.2d 249 (1981), the co-conservators cashed a certificate of deposit they held in joint tenancy with the conservatee and deposited it in their personal account. Under the facts in Fielder, the co-conservators did not profit from their acts, as they would have been entitled to the funds upon death of the conservatee as joint tenants. Also, the probate estate of the conservatee was not diminished because the funds were held in joint tenancy. The court found there was no harm done and the co-conservators were permitted to keep the money as the distribution of funds was in accordance with the wishes of the conservatee, expressed prior to incompetency. Fielder is distinguishable factually from the case at bar. Here the conservator’s action directly affects the interest of the joint account holders and the amount of inheritance that will be received by the heirs of Briley’s estate.
Our Supreme Court has also imposed a constructive or resulting trust upon joint tenancy property in certain circumstances to prevent injustice and overreaching. Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 (1972); Grubb, Administrator v. Grubb, 208 Kan. 484, 493 P.2d 189 (1972).
The foregoing cases are precedent for the proposition that, in Kansas, courts will scrutinize actions which affect the interest of joint account holders or beneficiaries of an estate. Further, the cases are consistent with the general rule recognized in other states which we adopt, that when a joint account holder becomes incompetent and a conservator is appointed, the conservator does not succeed to the full discretionary personal rights of the conservatee in jointly held accounts. A conservator may withdraw funds from a joint account only to provide what is necessary for the conservatee’s maintenance. See, e.g., Howard v. Imes, 265 Ala. 298, 90 So. 2d 818 (1956); Drozinski v. Straub, 383 So. 2d 301, 303 (Fla. Dist. App. 1980). See generally Annot. 62 A.L.R.2d 1091.
A conservator is not the alter ego of the conservatee and the decision to terminate joint accounts or change a beneficiary is a purely personal elective right of the conservatee. See, e.g., Howard, 265 Ala. at 300-01; Rozycke v. Sroka, 3 Ill. App. 3d 741, 745, 279 N.E.2d 155 (1972); In re Wright Estate, 430 Mich. 463, 470, 424 N.W.2d 268 (1988); Hendricks v. Grant County Bank, 379 P.2d 693, 697 (Okla. 1963); Strain v. Rossman, 47 Or. App. 57, 62, 614 P.2d 102 (1980). See generally Annot., 62 A.L.R.2d 1091. The decision regarding distribution of the conservatee’s property after death belongs to the conservatee. Union National Bank of Wichita v. Mayberry, 216 Kan. at 761.
The appellee ■ urges us to affirm the conservators actions’arid terminate the joint account holders’ rights based upon a'doctrine of necessity,, citing the conservator’s duty to take charge of the conservatee’s assets. The appellee further argues that the conservator must take title to joint accounts to protect them from dissipation by the .joint account, holders. While this is an issue of legitimate concern to a conservator, the conservator, should protect the jointly held .funds by obtaining a court order requiring court approval for all withdrawals by any party to the account. By following this procedure, the court may consider the conservatee’s needs, the source of the funds, the intent of the conservatee, the interests of the joint account holders, the interests of the beneficiaries of the estate, and any other legal or equitable claims made by an interested party. This procedure also affords the joint account holders and beneficiaries notice and the opportunity for a hearing before their legal right or interest in the property is terminated. The conservator is also protected from future claims by interested parties.
We hold that a conservator’s withdrawal of funds from a joint account does not have the effect of terminating the rights of a surviving joint owner to those funds and that the decision of the district court must be reversed for this reason.
During the trial of this case the parties stipulated that the Capitol Federal account was held in joint tenancy. The Twin Lakes account lacked the words necessary to create a joint tenancy. See In re Estate of Wood, 218 Kan. 630, 632, 545 P.2d 307 (1976). The appellants attempted to introduce evidence of Briley’s intent in establishing this account, which was rejected by the trial court.
All evidence is admissible to prove a depositor’s intent. In re Estate of Wood, 218 Kan. at 632-33. The issue to be determined would be the intent of the person creating the account at the time the joint account is established. Since Briley is deceased, the only source of evidence of the declarant’s state of mind would be hearsay statements. However, they should be admitted since state of mind is directly in issue. See State v. Hobson, 234 Kan. 133, 154-55, 671 P.2d 1365 (1983).
We believe that testimony concerning the letter from Briley to Carole Byram is admissible evidence regarding the question of Briley’s state of mind at the time these accounts were established. We are unable to determine from the record whether any of the letters or conversations between Briley and Hershel Morris evidence Briley’s intent prior to and/or contemporaneously with the establishment of the Twin Lakes account. Accordingly, we remand this evidentiary question to the trial court for further determination.
Reversed and remanded for further proceedings in accordance with this opinion. | [
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Brazil, J.:
In a forfeiture case arising from a drug sale conviction, the City of Garden City appeals the court’s order denying its petition for forfeiture of a residence owned by Pasquale M. Mesa. Kan. Const. art. 15, § 9; K.S.A. 1990 Supp. 65-4135. We affirm.
The parties submitted the case to the trial court upon stipulated facts, which we will briefly summarize.
Mesa, his wife Ellen, and their minor daughter resided on the property that is the subject of this forfeiture action and have designated it as their homestead. Mesa was convicted of sale of cocaine from the garage attached to their residence. Ellen was aware that Mesa possessed controlled substances at their residence prior to Mesa’s arrest and conviction, but she did not approve of the drugs and hád threatened to leave because of Mesa’s usage.
The City sought forfeiture of the Mesas’ residence pursuant to K.S.A. 1990 Supp. 65-4135(a)(7)(A). The court noted that the statute authorizes forfeiture of a homestead interest if the holder of such interest is convicted of certain specified felonies. The court ruled that Ellen is not a “convicted person” within the meaning of the forfeiture statute, and thus, the statute is inapplicable to her. The court held that, under the Kansas Constitution article 15, § 9, Ellen’s homestead rights, barring a constitutionally enumerated exception, cannot be alienated without the joint consent of her and her husband. The court found no joint consent in this case and, consequently, denied the City’s petition.
The City contends Mesa’s felony conviction subjects to forfeiture the homestead rights of all other claimants of that homestead who possess actual knowledge of the illegal use of the homestead. Mesa contends the statute expressly requires a felony conviction of all those entitled to claim the homestead exemption (Ellen and their minor daughter) and that such a conviction is a required precedent in an action to forfeit a homestead under K.S.A. 1990 Supp. 65-4135(a)(7)(A).
K.S.A. 1990 Supp. 65-4135 reads in pertinent part:
“(a) The following are subject to forfeiture:
“(7) all real property, including any building or structure thereon, which is used or intended for use in violation of this act, if such violation constitutes a felony, except:
(A) A homestead shall not be subject to forfeiture under this section unless the claimant of the homestead has been convicted of a violation of the uniform controlled substances act, K.S.A. 65-4101 et seq., and amendments thereto, or a comparable federal law violation, if such violation constitutes a felony, which involves the unlawful manufacturing, compounding, selling, offering for sale, possessing with intent to sell, processing, importing or exporting of a controlled substance, or has been convicted of conspiracy or attempt to commit such a violation. The homestead shall be subject to forfeiture under this section if the forfeiture proceedings and the conviction arise from the same violation, act, conduct or transaction and, in that event, the claimant so convicted shall be presumed to have consented to the forfeiture of the homestead by commission of the violation.” (Emphasis added.)
The statute clearly provides for forfeiture of a homestead only where the claimant of the homestead has been convicted of a violation of the controlled substance act.
The City’s contention, that because Ellen Mesa had knowledge that her homestead was being used for illegal purposes she therefore consented to the forfeiture of her homestead, is untenable in light of the statute. The district court specifically found Ellen’s knowledge of her husband’s drug use does not rise to the level of a conviction. The court also found that the Kansas Constitution prescribes that homesteads are exempt from forced sale under any process of law and shall not be alienated without the joint consent of husband and wife, when that relationship exists. The court found no such joint consent, thus barring the application of the statute.
The City contends the court erred in its interpretation of article 15, § 9 of the Kansas Constitution. The City states that the “joint consent” language of the Constitution applies only to alienations and therefore is inapplicable to forfeiture proceedings. That contention is at odds with State, ex rel., v. Mitchell, 194 Kan. 463, 399 P.2d 556 (1965). Mitchell concerned an action brought by the State to abate a liquor nuisance pursuant to K.S.A. 41-901 and K.S.A. 41-805. The State sought to enforce provisions of K.S.A. 41-806, which allowed that illegally operating taverns be padlocked. The district court found the “tavern” to constitute the homestead of the defendant and her husband and refused to issue an order padlocking the home. The court held such án order would violate article 15, § 9 of the Kansas Constitution. The Supreme Court reviewed the constitutional provision at issue, the exact provision at issue in the present case. That section reads in part:
"A homestead to the extent of . . . one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligation contracted for the purchase of said premises, or for the erection of improvements thereon.” Kan. Const. art. 15, § 9.
Mitchell then held the word “ ‘alienated’ as used in our constitution means a parting with or surrendering of some interest in the homestead.” 194 Kan. at 465. The court then stated:
“ ‘[N]o incumbrance or lien or interest can ever attach to or affect the homestead, except the ones specifically mentioned in the constitution. . . . No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity; nothing that he alone can do or suffer to be done, can cast the slightest cloud upon the title to the homestead.’ ” 194 Kan. at 465 (quoting Morris v. Ward, 5 Kan. 239, 244 [1869]).
The court upheld the district court’s ruling, concluding that “nothing less than the free consent of the resident owner of the homestead, and joint consent of husband and wife . . . , will suffice to alienate the homestead, except under the specified exceptions provided in .the constitution.” 194 Kan. at 466.
In the present case, the court appropriately denied the City’s pétition. The statute clearly speaks in terms of homestead forfeiture only where the claimant of the homestead is convicted. Ellen has been convicted of nothing in regard to this case. The statute expressly states one’s consent to forfeiture of the homestead is presumed upon conviction. Mesa’s consent is thus presumed. Ellen’s is not. The court appropriately construed the forfeiture statute in light of the joint consent requirement found in the Kansas Constitution article 15, § 9.
The City also contends that, if this court deems joint consent necessary as a precondition for forfeiture of the entire homestead interest, the City is at least entitled to forfeiture of Mesa’s homestead interest. The City contends such partial forfeiture of a homestead is a recognized constitutional remedy.
The City cites Hawkins v. Social Welfare Board, 148 Kan. 760, 84 P.2d 930 (1938), in support of its position. In Hawkins ', the court ruled that a lien held by the state on real property was constitutional. Hawkins concerned the 1937 social welfare act and its old-age assistance programs. The lien was statutorily prescribed and was inoperative and not enforceable during the lifetime of the husband or wife while the property at issue was occupied as a homestead. 148 Kan. at 763. The court also noted that, by voluntarily participating in the social welfare act’s old-age assistance program, the holder of the homestead interest had consented to such a lien by entering into a contract between herself and the government. She was thus bound by the terms of the statute.
Two salient factors distinguish Hawkins from the present case. First, the lien in Hawkins was clearly expressed in the statute. Section 17 of the social welfare act stated:
“ ‘The state of Kansas shall have a lien upon any real property which the recipient of any old-age assistance under this act may be the owner of or come in possession of after the granting of any assistance .... The lien created against the real estate of the recipient shall not be enforced against the same during his lifetime or while any real estate is being occupied as a home by the surviving spouse.’ ” 148 Kan. at 762 (quoting L. 1937, ch. 327, § 17).
In the present case, K.S.A. 1990 Supp. 65-4135 has no lien provision whatever.
The second distinguishing factor is that, in Hawkins, the claimant of the homestead interest, Nellie Hawkins, was a widow who voluntarily applied for old-age assistance. The court found her application constituted consent to the terms of the statute and consequently the homestead lien provision. Hawkins did not turn on the joint consent provisions of article 15, § 9, which are at the center of the present case.
In the instant case, only Mesa has been convicted and, thus, only he has statutorily consented to forfeiture. In State, ex rel., v. Mitchell, 194 Kan. 463, the Supreme Court repeated long-held views regarding homestead rights. The court held that, except for express constitutional exceptions, no lien or interest can attach to the homestead absent joint consent of the husband and wife. The court noted further that the homestead exemption is not concerned with
“the moral character of the resident nor [does it] undertake to exclude the vicious, the criminal, or the immoral from the benefits so provided. The law provides for punishment of persons convicted of illegal acts, but the forfeiture of homestead rights guaranteed by our constitution is not a part of the punishment.” 194 Kan. at 466.
Under Kansas law, a lien may not encumber the homestead interest unless jointly consented to by husband and wife, where that relationship exists. In the present case, only Mesa, by his conviction, is presumed to have consented to forfeiture. Further, K.S.A. 1990 Supp. 65-4135 has no lien provision. The court’s denial of the City’s forfeiture petition should be affirmed.
Like the trial court, we too find it unnecessary to reach Mesa’s challenge to the constitutionality of K.S.A. 1990 Supp. 65-4135(a)(7)(A).
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Lewis, J.:
This is an appeal from the modification of a divorce decree pursuant to K.S.A. 60-260(b),
Appellant Alonzo Thomas, Jr., contends that the trial court erred in several respects in its modification of the divorce decree. After review, we affirm.
Alonzo and Barbara Thomas were married in 1949 and divorced in 1962. There were four children born to that marriage. After divorcing Barbara, Alonzo married Emily Gunn. It appears that Alonzo is still married to Emily.
When Alonzo and Barbara were divorced in 1962, Barbara was awarded custody of the four children of the parties and a house in Kansas City. Barbara was awarded the house subject to a mortgage, which she paid in full.
This action stems from events that took place in 1972. In that year, Alonzo moved back in with Barbara and the children and purchased a house on Isabel Street. The testimony indicates that Alonzo decided that the neighborhood Barbara and the children were living in was having a bad influence on the children. To remedy that problem, Alonzo purchased the Isabel house. He and Barbara set up housekeeping in the house on Isabel and lived together in that home until Barbara filed for divorce in 1989.
Barbara sued Alonzo for divorce on the theory that a common-law marriage existed between the parties. Barbara apparently was not aware of Alonzo’s marriage to Emily. During the 1989 divorce hearing, Alonzo produced his marriage certificate, showing that he was still married to Emily. As a result, the trial court held that there could be no common-law marriage between Alonzo and Barbara.
Despite its conclusion that the parties were not married, the trial court divided the parties’ assets between them. After a hearing on the matter, the trial court awarded the house on Isabel to Barbara, subject to all encumbrances. Alonzo was awarded the balance of the real estate owned by the parties.
At the time the decree was granted, Barbara maintains she did not know that the Isabel house was encumbered with a second mortgage in the amount of $37,000. Barbara insists that she first discovered the existence of the second mortgage when she went to the savings and loan to arrange her payments on what she believed to be a mortgage of $6,000.
Barbara filed a motion for a new trial two months after the original decree was entered. This motion was filed under K.S.A. 60-260(b) and alleged that Barbara was entitled to a new trial on the grounds of newly discovered evidence, fraud, misrepresentation, and/or misconduct of Alonzo. The trial court conducted a hearing on the motion. Evidence was introduced showing that Barbara had signed the notes and mortgages of which she now contends she had no knowledge. Further, the record shows that Alonzo testified concerning the existence of the second mortgage at the 1989 hearing. Despite these facts, the trial court concluded that the existence of the second mortgage was newly discovered evidence and granted the motion for a new trial. At the new trial, evidence was introduced to show that Alonzo had taken out the second mortgage on the Isabel property to purchase and repair other properties, which he was awarded in the 1989 decree. The evidence also indicated that Barbara had owned a house at the time the parties resumed living together in 1972 and that this house had been sold and the proceeds used to purchase or repair other properties, which were awarded to Alonzo. The trial court concluded that, had it been aware of the second mortgage at the time of the 1989 trial, it would have ruled differently and, accordingly, modified the decree. The modified decree awarded Barbara the house on Isabel, subject only to the first mortgage against it. Alonzo was ordered to pay the $37,000 second mortgage against the property.
Alonzo appeals, raising two basic issues.
DOES THE UNIFORM PARTNERSHIP ACT APPLY?
Alonzo first contends that, since he and Barbara were not’married, the trial court had no authority to divide their assets as if it were dissolving a marriage. In fact, Alonzo argues that, under the circumstances shown, the court is bound in dividing the property to adhere to the principles of the Uniform Partnership Act K.S.A. 56-301, et seq. (UPA).
Alonzo’s argument concerning the UPA is based on one sentence from the case of Werner v. Werner, 59 Kan. 399, 403, 53 Pac. 127 (1898), which is quoted with approval in Eaton v. Johnston, 235 Kan. 323, 328, 681 P.2d 606 (1984). That sentence states: “ ‘The court has the same power to make equitable division of the property so accumulated as it would have in casé of the dissolution of a business partnership.’ ” 235 Kan. at 328. Based on this sentence, Alonzo argues that the division of property accumulated during a cohabitation, which does not amount to a marriage, is governed by the UPA. The UPA requires that part nership property, in this instance the Isabel house, must be applied first to the payment of partnership debt. Based on this analysis, Alonzo argues that the trial court should have ordered the Isabel house sold and the proceeds used to pay the indebtedness against the property which he argues was partnership debt. We disagree with Alonzo’s argument.
Barbara contends that Werner and Eaton give a trial court broad equity power to divide property under the facts shown.
In determining whether the UPA applies, this court’s standard of review is unlimited. It is well settled that, when the issue is one involving conclusions of law, this court has unlimited review. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
We have carefully reviewed Werner and Eaton and conclude that those two cases do not support the theory advanced by Alonzo.
As far back as 1885, our Supreme Court, in considering the effect of a void marriage, stated:
“It is our opinion, however, that in all judicial separations of persons who have lived together as husband and wife, a fair and equitable division of their property should be had; and the court in making such division should inquire into the amount that each party originally owned, the amount each party received while they were living together, and the amount of their joint accumulations.” Fuller v. Fuller, 33 Kan. 582, 586-87, 7 Pac. 241 (1885).
The Werner case, cited by Alonzo, was also a case involving a void marriage. In that case, the wife had another husband who was still living and whom she had not divorced. As a result, the trial court concluded that the marriage between Rosa and Emil Werner was void. Despite that conclusion, the court awarded Rosa a share of the property she and Emil had accumulated through their 22 years of cohabitation. Emil appealed.
On appeal, the Supreme Court held that the action was an equitable one and that the trial court had the authority to divide the property equitably. The court indicated that the testimony showed that the property the parties had at the time of the dissolution was largely the result of Rosa’s labors. The fact that legal title was in Emil’s name was of no consequence. The court held that Rosa had a right to her share of the property which she helped Emil acquire. 59 Kan. at 402-03.
In Eaton v. Johnston, 9 Kan. App. 2d 63, 672 P.2d 10 (1983), aff'd as modified 235 Kan. 323, 681 P.2d 606 (1984), this court dealt with an unmarried couple. In that case,'Johnston and Eaton were divorced, and, a short time later, resumed cohabitation. After two and one-half years, Eaton sought a division of the property the two had acquired during the period of cohabitation. This court held that the district court had the inherent power to make an equitable division of the property accumulated by the parties during the time they were living together. 9 Kan. App. 2d at 67.
The Supreme Court affirmed the decision of this court in Eaton v. Johnston, 235 Kan. 323, with one modification that is not pertinent to the present case. In Syl. ¶ 2 of the Supreme Court opinion, the court held;
“Where a common-law marriage is alleged but judicially held not to.exist, the trial court, in the exercise of its inherent power to do equity, is authorized to maké an equitable division of' the property jointly accumuláted by the' parties or acquired by either with the intent that each should have an interest therein.” •
Neither decision relied on by the appellant implies that the property must be divided as if it were partnership property. The only authority for Alonzo’s argument is the one sentence from the Werner decision, quoted earlier in this opinion. This sentence was repeated by the Supreme Court in Eaton v. Johnston.
We do not read the authorities cited by Alonzo as requiring a trial court to apply partnership principles when dividing property between two parties who have cohabited but who are not validly and legally married. These decisions refer to the inherent power of the trial court to do equity. The Eaton decision stands for the proposition that the trial court is authorized to make an equitable division of the property of the parties. It does not stand for the proposition that the trial court is required to apply partnership principles in dividing that property.
We hold in line with the Eaton decision that, under the facts shown, the trial court had the authority to make an equitable division of the property jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein. We find no merit whatsoever in Alonzo’s argument that the trial court was bound by the UPA or was required to apply partnership principles in dividing the property. We further hold that the trial court’s ultimate division of the property of the parties was equitable, and it is affirmed.
APPLICATION OF K.S.A. 60-260(b)
Alonzo next argues that the trial court erred in granting Barbara’s motion for a new trial on the grounds of newly discovfered evidence. We agree with Alonzo’s argument in this regard, but, as will become apparent, we hold that such error does not require us to reverse the modified decree.
Our review of the record reveals that the existence of the second mortgage can hardly be considered as newly discovered evidence. Barbara signed the note and mortgage in question and can hardly be heard to now proclaim ignorance of those documents or their contents. Further, the record shows that Alonzo testified oh cross examination about the existence of the second mortgage and the approximate amount of that mortgage. Indeed, the trial court found that Barbara’s attorney found out about the existence of the second mortgage sometime during the erossexamination of Alonzo. The trial court went on to conclude that, despite her attorney’s knowledge, Barbara was not aware of the existence of the second mortgage and apparently neither was the trial court. It is difficult to support the proposition that a party’s attorney has knowledge of a fact without that knowledge being imputed to the party.
There is another reason why the motion should not have been granted .on the basis of.newly discovered evidence. K.S.A. 60-260(b)(2) provides that the trial court may relieve a party from a judgment or order for “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b).” (Emphasis added.) The statute' clearly requires that, in order to be newly discovered, the evidence must be such that it could not, by due diligence, have been discovered. The record in this case shows that the exercise of due diligence by Barbara or her attorney would have revealed the existence of the second mortgage. Barbara complains that Alonzo did not file a Rule 164 (1991 Kan. Ct. R. Annot. 126) statement and did not voluntarily reveal the existence of the second mortgage. While that may be true, the evidence was as discoverable by Barbara after the decree was entered as it was before. If Barbara and her attorney had been exercising due diligence, they would have made inquiries or, at the very least, conducted a record search to discover what encumbrances the property located on Isabel Street was subject to. We cannot believe that due diligence was exercised when Barbara and her attorney failed to find out the existence of a second mortgage, which was readily ascertainable by reference to the public records of Wyandotte County. The existence of a second mortgage and its amount was also easily ascertainable by inquiry at the savings and loan in question. This evidence was discoverable by the exercise of the most elementary diligence and, under the provisions of the statute, a new trial cannot be justified on the grounds of newly discovered evidence.
Despite the trial court’s error in the basis for granting relief, we are of the opinion that the relief is justified and should have been granted. K.S.A. 60-260(b)(6) provides that a trial court may relieve a party from a judgment or order for “any other reason justifying relief from the operation of the judgment.” We believe relief could have appropriately been granted to Barbara under 60-260(b)(6), and we affirm the trial court on the basis that it was right for the wrong reason. In Mid Kansas Fed’l Savings & Loan Ass’n v. Burke, 233 Kan. 796, 666 P.2d 203 (1983), the Supreme Court upheld the trial court’s granting of a new trial under K.S.A. 60-260(b) on a different ground from that of the trial court. In that case, the trial court and the Court of Appeals held that a new trial was proper under the element of excusable neglect. The Supreme Court affirmed the granting of a new trial, but held that surprise was the proper ground, not excusable neglect. The Supreme Court held that the trial court was right but for the wrong reason and affirmed the decision. 233 Kan. at 799-800.
In In re Marriage of Hunt, 10 Kan. App. 2d 254, 697 P.2d 80 (1985), this court held that, while the motion under K.S.A. 60-260(b) could arguably be sustained on the grounds of “mistake, inadvertence, surprise or excusable neglect,” it could also be upheld under K.S.A. 60-260(b)(6), in that the interests of justice justify a new trial. 10 Kan. App. 2d at 259.
We are convinced that the modified decision by the trial court is the correct decision and that the trial court had the authority to grant the relief under K.S.A. 60-260(b)(6).
“The broad language of K.S.A. 60-260(b)(6) authorizing relief for ‘any 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. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.” Neagle v. Brooks, 203 Kan. 323, Syl. ¶ 5, 454 P.2d 544 (1969).
In Wichita City Teachers Credit Union v. Rider, 203 Kan. 552, 456 P.2d 42 (1969), the court stated:
“K.S.A. 60-260 introduced change in the law respecting the review and correction of judgments. The text of this statute was taken largely from the Federal Rules of [Civil] Procedure. (3 Barron and Holtzoff, Federal Practice and Procedure [Wright] § 1321 to 1332, incl.) The rule is broadly phrased and many of the itemized grounds for relief are overlapping. (Laguna Royalty Company v. Marsh, [C. A. 5th 1965], 350 F.2d 817, 823.) The rule is designed to permit the desirable legal objective that cases may be decided on their merits, and it must be given a liberal construction to prevent miscarriage of justice. (Radack v. Norwegian America Line Agency, Inc., [C. A. 2d 1963], 318 F.2d 538, 542.) The recognition of the court’s power to reexamine its ruling prior to docketing an appeal prejudices no one, and may facilitate the doing of equity which the rule contemplates. (Sleek v. J. C. Penney Company, [C. A. 3d 1961], 292 F.2d 256.)
“Under the provisions of K.S.A. 60-260(c) and 60-260(b)(6) a trial court retains broad discretionary power to relieve a party from final judgment for any reason justifying relief from the operation of the judgment if such power is exercised prior to the time for docketing an appeal from the judgment in the supreme court.” 203 Kan. at 555-56.
Our standard of review in concluding whether a trial court erred in granting relief under 60-260(b)(6) is abuse of discretion. Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, 143, 626 P.2d 1240 (1981).
In In re Marriage of Hunt, 10 Kan. App. 2d 254, Syl. ¶ 2, we said: “A motion for relief from judgment under K.S.A. 60-260(b) need not specify one particular ground for relief. It is sufficient if it demonstrates a right to relief under one or more grounds so long as it is timely filed.” See In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984). In essence, if the motion is filed within one year of the entry of judgment, the trial court may grant relief for any of the reasons set forth in the statute.
The record in the instant matter indicates that the trial court was confused or unaware of the existence and amount of the second mortgage at the original hearing. The trial court concluded that, had it been aware of the existence and amount of the second mortgage, it would not have required Barbara to pay that indebtedness. The trial court corrected this misunderstanding of the factual situation when it modified the decree. We hold that the trial court had the right to grant Barbara a new trial and modify its decree based on the authority granted in 60-260(b)(6). To hold otherwise would be to perpetuate the existence of an inequitable division of property, which was based on a misunderstanding of the true facts. The trial court has the power under K.S.A. 60-260(b)(6) to achieve justice and equity in this fashion and, in doing so, it did not abuse its discretion. The specification of the exact grounds for relief under a 60-260(b) motion is not required. The trial court had the authority to grant Barbara relief under any of the six subsections of 60-260(b). We hold that the trial court’s decision was correct but for the wrong reason. Accordingly, we affirm the decision of the trial court.
Affirmed. | [
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Rulon, J.:
Plaintiffs Benny and Shirley Edmonds appeal a decision of the district court which granted summary judgment to defendant Lawrence National. Bank & Trust Co., N.A. We must decide two narrow issues: (1) Does the existence of federal sanctions for the filing of frivolous and malicious bankruptcy pleadings constitute an implicit rejection of state court remedies for a similar action; and (2) did the district court err in rejecting plaintiffs’ claim for malicious prosecution by holding that action was premature? We affirm the judgment of the district court. .
UNDISPUTED FACTS
Plaintiffs, tell us this case involves claims asserted by them against defendant for abuse of process and malicious prosecution arising from defendant’s filing of a complaint to revoke plaintiffs’ discharge granted by the U.S. Bankruptcy Court for the District of Kansas and defendant’s filing of a replevin action in the District Court of Douglas County. Plaintiffs contend that defendant’s primary purpose in filing these actions was to extract money from them for repayment of a debt which was previously discharged in bankruptcy or was never owed.
The district court granted summary judgment to defendant on plaintiffs’ claims, reaching the following conclusions: (1) Fed. R. Civ. Proc. 11 and Fed. R. Bankr. Proc. 9011 preempt state causes of action seeking sanctions for alleged misuse of process in bankruptcy court; and (2) plaintiffs failed to state a claim upon which relief could be granted for either abuse of process or malicious prosecution.
STANDARD OF REVIEW
The standard of review of a decision granting summary judgment is stated in Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988):
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Citations omitted.] If factual issues do exist, they must be material to the case to preclude summary judgment. [Citation omitted.]”
Furthermore, the law is well settled that our review of questions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
PREEMPTION
The plaintiffs contend the district court erred in granting the defendant’s summary judgment motion by holding that Fed. R. Civ. Proc. 11 and Fed. R. Bankr. Proc. 9011 preempt any state common-law actions for malicious prosecution or abuse of process arising from defendant’s complaint to revoke plaintiffs’ discharge filed in U.S. Bankruptcy Court. Plaintiffs do agree there are no contradicting facts regarding this issue.
“The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to preempt state law.” Louisiana Public Service Comm’n v. FCC, 476 U.S. 355, 368, 90 L. Ed. 2d 369, 106 S. Ct. 1890 (1986). One method utilized to determine if Congress has preempted state law is to consider whether federal legislation has comprehensively occupied the entire “field of regulation and [left] no room for the States to supplement federal law.” 476 U.S. at 368.
Defendant cites East-Bibb Twiggs Neighborhood v. Macon-Bibb Plan., 674 F. Supp. 1475 (M.D. Ga. 1987), for support that Rule 11 preempts state causes of action against abusive federal litigation. The East-Bibb court stated that:
“Congress has specifically addressed the problem of abusive litigation when it promulgated Rule 11 of the Federal Rules of Civil Procedure. By explicitly delineating what rights a defendant has when an abusive claim based upon federal law is brought against that party, Congress has simply pre-empted this entire area of the law . . . .” 674 F. Supp. at 1476-77.
Plaintiffs, on the other hand, argue that East-Bibb can be distinguished because there the court relied not only upon Rule 11, but on 42 U.S.C. § 1988 (1988) as it relates to frivolous actions regarding a 42 U.S.C. § 1983 cause of action. 674 F. Supp. at 1476.
The plaintiffs rely heavily on Cohen v. Lupo, 927 F.2d 363 (8th Cir. 1991), to support their contention that the area is not preempted by federal law. In Cohen a federal court awarded Rule 11 sanctions against eight plaintiffs. The defendants then sued the plaintiffs in federal court for the state cause of action for malicious prosecution. 927 F.2d at 364. The United States Court of Appeals for the Eighth Circuit found that Rule 11 sanctions have no res judicata effect on a claim for malicious prosecution. 927 F.2d at 365. The Cohen court stated that “Rule 11 is a procedural tool that under the Rules Enabling Act can not ‘abridge, enlarge or modify any substantive right.’ 28 U.S.C. § 2072.” 927 Fed. 2d at 365. Plaintiffs further contend that while East-Bibb appears to state Congress has preempted the area of abusive litigation, Cohen states that “Rule 11 can not abridge the substantive state law of malicious prosecution, nor was it adopted to serve as surrogate for an action based upon a claim of malicious prosecution resulting from frivolous, harassing, or vexatious litigation.” 927 F.2d at 365.
A federal case we believe more persuasive is Gonzales v. Parks, 830 F.2d 1033 (9th Cir. 1987), where Gonzales filed for bankruptcy and Parks filed an action in a California state court alleging that the bankruptcy filing was an abuse of process. The court stated:
“Implicit in the Parkses’ appeal is the notion that state courts have subject matter jurisdiction to hear a claim that the filing of a bankruptcy petition constitutes an abuse of process. We disagree with that assumption. Filings of bankruptcy petitions are a matter of exclusive federal jurisdiction. State courts are not authorized to determine whether a person’s claim for relief under federal law, in a federal court, and within that court’s- exclusive jurisdiction, is an appropriate one. Such an exercise of authority would be inconsistent with and subvert the exclusive jurisdiction of the federal courts by allowing state courts to create their own standards as to when persons may properly seek relief in cases Congress has specifically precluded those courts from adjudicating. [Citation omitted.] . . . The ability collaterally to attack bankruptcy petitions in state courts would also threaten the uniformity of federal bankruptcy law . . . .” 830 F.2d at 1035.
We believe that the same principles enunciated in Gonzales for the filing, of a bankruptcy petition apply to a complaint to revoke discharge filed in a U.S. Bankruptcy Court. In a recent California state court case, a debtor filed a malicious prosecution case against creditors who previously filed unsuccessful adversary proceedings in U.S. Bankruptcy Court seeking to prevent her from obtaining discharge of certain debts, Idell v. Goodman, 224 Cal. App. 3d 262, 273 Cal. Rptr. 605 (1990). The Idell court stated that “the reasoning of Gonzales bears repeating. The existence of federal sanctions for the filing of a frivolous and malicious bankruptcy pleading must be read as an implicit rejection of state court remedies.” 224 Cal. App. 3d at 271.
We are persuaded by the reasoning of Gonzales and Idell. The district court did not err in holding that state court remedies are not available for seeking redress for allegations of frivolous and malicious bankruptcy actions.
ABUSE OF PROCESS
As we understand it, plaintiffs’ claim against defendant for abuse of process is based solely upon defendant’s filing an action in bankruptcy court seeking revocation of plaintiffs’ discharge in bankruptcy. As stated above, we adopt the doctrine of preemption articulated in Gonzales and Idell to reject state court action in this legal arena.
MALICIOUS PROSECUTION CLAIM
Plaintiffs’ claim for malicious prosecution is based on defendant’s filing of a replevin action in state district court. The elements of an action claiming malicious prosecution are well settled. The plaintiff, to be successful, must prove:
“(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
(b) That' the defendant in So doing acted without probable cause.
(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
(d) That - the proceeding terminated in favor of the plaintiff. .
(e) That the plaintiff sustained damages.”
Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980).
The district court granted summary judgment to defendant after finding no final adjudication in favor of plaintiffs had occurred in the defendant’s replevin action against plaintiffs filed in state court. The district court found thát this case had- been stayed after bankruptcy proceedings were filed by plaintiffs. Plaintiffs do concede that the replevin action is currently pending in the District Court of Douglas County. Unquestionably, an essential element of an action for malicious : prosécution is the favorable termination for plaintiffs of the challenged prior proceeding. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 463, 701 P.2d 977, rev. denied 238 Kan. 877-(1985). Thus, the district court did not err in granting defendant summary judgment concerning plaintiffs’ malicious prosecution claim.
We have considered the other issues presented, but in light of the above, we need not reach them.
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