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Briscoe, C.J.:
In a driver’s license suspension case, the Kansas Department of Revenue appeals, from summary judgment entered in favor of Kelli Ostmeyer. The district court entered summary judgment after concluding the officer who administered the breath test failed to comply with K.S.A. 8-1001(f)(l)(I) when he refused to allow Ostmeyer to contact counsel after her completion of the breath test.
The facts are undisputed. After an automobile accident, Ostmeyer was taken by ambulance to a hospital. She was arrested at the hospital for driving while under the influence of alcohol. The officer who made the arrest read Ostmeyer the warnings required by 8-1001(f)(l) and administered a breath test. When Ostmeyer completed the test, she asked to speak to her attorney. The officer did not permit Ostmeyer to call her attorney. Ostmeyer was subsequently mailed a notice of driver’s license suspension and temporary driver’s license. She requested an administrative hearing under K.S.A. 8-1002 to challenge her sus pension. A hearing was held and Ostmeyer’s driving privileges were suspended for 30 days and restricted for an additional 60 days. Her license was suspended for chemical test failure, which is a breath test result of .10 or more. Ostmeyer filed a timely petition for review with the district court and obtained an order staying the license suspension. Ostmeyer filed a motion for summary judgment with the district court, the Department responded, and Ostmeyer filed a reply. The district court granted Ostmeyer’s motion for summary judgment.
The Department contends the motion for summary judgment did not comply with Supreme Court Rule 141 (1991 Kan. Ct. R. Annot. 117), arguing transcripts used by Ostmeyer were unauthenticated and were not part of the record.
After some discovery was conducted, Ostmeyer filed a motion for summary judgment, which included citation of State v. Kelly, 14 Kan. App. 2d 182, 786 P.2d 623 (1990). Attached to the motion and referenced in the motion was a portion of the suppression hearing transcript from the DUI criminal action which arose out of the same automobile accident. This transcript included the officer’s testimony that he did not allow Ostmeyer to call an attorney after she had completed her breath test and had requested an attorney. Ostmeyer was successful in suppressing the breath test results in the DUI criminal action and included that fact in her statement of uncontroverted facts in her motion for summary judgment filed in the present suspension case. She did not argue, however, that the suppression order in the criminal case was binding upon the court under the doctrines of collateral estoppel or res judicata.
In responding to the motion for summary judgment, the Department did not come forward with anything of Evidentiary value in an attempt to prove there was a materiál dispute of fact. See Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 1, 739 P.2d 444 (1987). Rather, the Department argued the transcripts offered by Ostmeyer were improperly considered by the district court and that, without these transcripts, there was no factual basis for entering summary judgment in favor of Ostmeyer.
On appeal, the Department again challenges the propriety of Ostmeyer’s summary judgment motion. The Department argues the district court’s ruling is erroneous because it violates the express provisions of Supreme Court Rule 141 by permitting Ostmeyer to rely on unauthenticated documents and irrelevant factual matters developed in the “unrelated” criminal DUI proceeding. Specifically, the Department argues the transcripts Ostmeyer used were from the criminal case rather than from the civil case and that the Department was not a party to the criminal action. While it is true the Department was not a party to the prior criminal case, Ostmeyer did not argue the rulings in the criminal case were binding in any way in the civil case. Rather, she offered testimony from the criminal case to prove facts she alleged in the civil case. Ostmeyer offered testimony from the criminal case to prove the officer did not allow her to call her attorney after she took the breath test, even though she requested an attorney. These facts were not directly controverted by the Department.
The Department also argues the transcripts from the criminal case were not “authenticated as being true and correct copies of the originals.” However, the Department did not raise this argument before the trial court. “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987).
Finally, the Department argues the transcripts were not “contained in the court file and otherwise included in the record,” as required by Supreme Court Rule 141. Arguably, this is the first time the Department has raised this issue. In its response to the motion for summary judgment, the Department argued the transcripts were not “supported by appropriate supporting references as required by Supreme Court Rule 141.” The Department argues that argument is the same issue raised on appeal. Assuming arguendo the two arguments are the same, it is appropriate to consider a portion of Supreme Court Rule 141:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record).”
As the district court noted in response to the Department’s objections:
“Defendant does not specify how the uncontroverted statement of facts and supported transcripts from the trial held in Ellis County failed to comply with Supreme Court Rule 141.
“An examination of the Statement of Uncontroverted Facts shows each alleged fact is contained in a separately numbered paragraph. Each alleged fact is indexed to the page and line of the transcript of the Ellis County trial which is attached to the Statement of Uncontroverted Facts and filed with the clerk of the court.”
It is clear that Ostmeyer cited to the transcripts by using “appropriate supporting references.” Since the transcripts were attached to Ostmeyer’s statement of uncontroverted facts and filed with that document, the documents were a part of the record.
The Department contends the court erred in concluding the officer's failure to provide Ostmeyer with counsel required the suppression of the breath test results. The Department argues the rule expressed in Kelly, 14 Kan. App. 2d 182, has no application in this case because the Kelly test applies only to criminal cases and not to administrative proceedings.
In granting Ostmeyer’s motion for summary judgment, the district court first noted the language of 8-1001(f)(l)(I): “[A]fter 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 as soon as possible and is customarily available for medical care facilities and physicians.” The court noted the officer did not comply with this statute. Pursuant to 8-1002(f), “[i]f the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.” One of the requirements of subsection 8-1002(a)(l) is that the “law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto.” The court then concluded the facts conclusively showed the officer failed to comply with the provisions of 8-1001 and, as a result, the Department should have dismissed the proceedings.
This court stated in Kelly, 14 Kan. App. 2d 182, Syl. ¶ 3, that “[suppression of the results of the test administered by the State pursuant to K.S.A. 1987 Supp. 8-1001 and any evidence obtained following a request for counsel after the test is administered by the State is the proper remedy for violation of [8-1001(f)(l)(I)].” In proscribing a remedy for violation of the statute, this court made no distinction in Kelly between criminal and administrative proceedings. In Kelly, this court consídéred K.S.A. 1987 Supp. 8-1004 and concluded' that an officer’s denial óf a driver’s right to consult an attorney after a breath test required the same sanction as the officer’s refusal to allow the driver, to obtain a second, test.
The Supreme Court expanded the suppression principle in State v. Luft, 248 Kan. 911, 913, 811 P.2d 873 (1991), when it held suppression of test results is the proper remedy for failure to give statutory warnings required in 8-1001. In reaching its conclusion to suppress, the court reviewed the holding in Barn-hart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988), which arose from the Department’s suspension of Barn-hart’s driver’s license.
In Barnhart, 243 Kan. at 212, the Supreme Court noted:
“The clear language of the statute indicates that the legislature intended to ensure that a person arrested for driving under the influence was made aware, by the required notice procedure, of his statutory rights. Those rights include the right to obtain independent testing of his blood alcohol level following testing by or under the direction of a law enforcement officer. K.S.A. T985 Supp. 8-1004 both establishes this right to an independent test, and enforces compliance'by law officers. It provides that if the law enforcer ment officer refuses to permit the person tested to obtain such additional testing, the results of the test administered under the direction of the officer are inadmissible in evidence.”
In discussing Barnhart in Luft, 248 Kan. at 912-13, the Supreme Court said: .
“We concluded, as did the Court of Appeals, that the law enforcement personnel had substantially complied with 8-1001(f) and affirmed Barnhart’s conviction. Thus, this court never reached the question whether the test results would have been suppressed for failure to give the statutory warning required by 8-1001(f).
“That was. the posture of the law when this case was tried. Sixteen days after Luft was convicted, the decision in State v. Kelly was announced. In Kelly, the question of whether the failure to give the mandatory statutory warnings would result in suppression of the results of the blood alcohol test was answered.”
The Supreme Court’s statement in Luft when referencing Barn-hart makes it clear that failure to give the statutory warnings (notices) required by 8-1001(f) will result in suppression of test results in an administrative suspension of license proceeding as well as in a criminal action.
The Department also argues “the concept of the exclusion of the ‘evidence’ simply does not work in administrative proceedings.” The basis of this argument is that an officer’s completion of forms indicating a driver has failed the test is all that is needed to suspend a driver’s license under 8-1002. We note, however, that 8-1002 contains numerous references to items that may be considered “admissible in evidence.” See, e.g., K.S.A. 8-1002(b), 8-1002(i), and 8-1002(j). Indeed, the officer’s certificate that a driver has failed a breath test is specifically listed as evidence to be considered in administrative hearings under 8-1002(b). The Department’s argument on this point lacks merit.
The Department next argues that constitutional protections in criminal proceedings are not applicable in civil proceedings, citing cases where suppression rules are applied in criminal cases but not in civil or administrative actions.
The Department’s argument ignores the statutory basis for the decision in Kelly. As discussed, Barnhart, Kelly, and by implication Luft, all relied heavily on the protections created under 8-1004. The court determined the legislature intended breath tests to be suppressed in both civil and criminal contexts when a driver’s rights are violated. It is well known that “[t]he fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning. [Citation omitted.]” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). Since it has already been determined in Luft, Barnhart, and Kelly that the legislature intended that sanctions apply in both civil and criminal contexts, that legislative intent must govern.
Finally, the Department complains Ostmeyer did not raise the “Kelly issue” during the administrative hearing and, therefore, she cannot raise it now. There is no transcript of the adminis trative hearing in the record before this court. The Department does include a transcript of that hearing with its brief to this court.
“A party must designate an adequate record on appeal to substantiate contentions made to the appellate court. Without such a record, claims of alleged error must fail. Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. [Citation omitted.]” Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989).
Notes that were apparently made during the hearing are included in the record. Many of the notations are illegible and the full import of the comments cannot be discerned. However, under the heading “Other issues raised, if any,” is the notation: “No const, rt. to consult with atty,” which would indicate the issue was raised by Ostmeyer at the administrative hearing. Further, the Department did not raise this argument before the trial court. See Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. at 552.
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Rees, J.;
Plaintiff St. Francis Regional Medical Center, Inc., has pursued this action against Edward Bowles and his wife, Tamara Bowles, to collect its charges for medical services provided to Edward. All parties agree that the medical services provided to Edward were necessary services and that the hospital’s charges are reasonable and proper. Edward has confessed judgment in the principal amount of $12,021.54.
Because of Edward’s financial inability to pay, the hospital has sought identical but nonduplicative recovery against Tamara under the common-law doctrine of necessaries. The essence of that doctrine is that a spouse is obligated to pay for the other spouse’s necessaries, which include those things needed and suitable to the spouses’ rank and condition and the style of life they have adopted. Chipp v. Murray, 191 Kan. 73, 76, 379 P.2d 297 (1963).
Tamara appeals from the summary judgment entered in favor of the hospital and against her. She argues that, because the doctrine of necessaries stems from the common-law concept of the unity of marriage under which a wife was deemed dependent upon her husband because she could not separately own and hold property in her name, the doctrine operates only to obligate a husband to pay for his wife’s necessaries. From that she argues that a wife is not obligated to pay for her husband’s necessaries. Although it does not support her defense in the present case, Tamara suggests that, because the doctrine is not gender neutral, its implementation violates the equal protection clause of the Fourteenth Amendment. Tamara proposes that the doctrine should be abolished.
We are referred to no Kansas appellate decision where the doctrine of necessaries has been expressly applied to obligate a wife for her husband’s necessary expenses.
The earliest Kansas reference to the doctrine of necessaries that we have found appears in Harttmann v. Tegart, 12 Kan. 177 (1873).
Within Harttmann, it is stated: “We suppose a mutual legal as well as moral obligation rests upon every husband and wife to furnish each other, so far as it is within their power, everything necessary for their mutual comfort and enjoyment.” 12 Kan. at 179.
Contrary to Tamara’s assertion that the doctrine of necessaries was based on the concept of unity of marriage, in Harttmann our Supreme Court reasoned that the doctrine arose from agency principles. 12 Kan. at 179-80.
In State v. Koontz, 124 Kan. 216, 217-18, 257 Pac. 944 (1927), this appears:
“At common law crimes against the property of another cannot be committed by husband or wife against the property of the other owing to the unity of husband and wife and the rights of the husband in the property of the wife. . . . The common law rule above mentioned has no application in this state .... [By Article 15, § 6 of the Kansas Constitution and the Married Women’s Act at G.S. 1868, ch. 62, § 1, later to become known as the Married Person’s Act, K.S.A. 23-201], the common law rule of the unity of property rights of husband and wife has been abrogated.’’ (Emphasis added.)
Tamara’s reliance on Harrah v. Harrah, 196 Kan. 142, 409 P.2d 1007 (1966), is unpersuasive. She points us to that part of Harrah where it is said:
“At common law the husband had almost absolute control over his wife. He was entitled to her services and consequently to her earnings and all of her possessions. A married woman had no legal existence apart from her husband and thus could not contract in her own name. She was in a condition of complete dependence.” 196 Kan. at 145.
Tamara fails to acknowledge this immediately following text:
“[T]he inclusion of Art. 15, § 6, in the Kansas Constitution and the enactment of G.S. 1949, 23-201, et seq., now K.S.A. 23-201, et seq., as Justice Burch, speaking for the court, explained it,—
\ . . irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial authority, threw off the restraints of coverture, and installed the modern doctrine of the equality of man and wife before the law.’ (Harrington v. Lowe, 73 Kan. 1, 18, 84 Pac. 570.)” 196 Kan. at 145.
We are invited to direct gender neutral utilization of the doctrine of necessaries as a matter of policy. We decline the invitation. Whether there is to be such a stated policy is a question best left to our Supreme Court or, perhaps, our legislature. Be that as it may, we observe that gender neutral retention of the doctrine would be consistent with our divorce statute (K.S.A. 1990 Supp. 60-1610[b][2]) (amendment at L. 1991, ch. 171, not applicable) and our criminal nonsupport statute (K.S.A. 1990 Supp. 21-3605[2][a]), both of which mutually obligate spouses to support each other.
To resolve the appeal before us, we rely upon the above-quoted statement in Harttmann and with that as foundation we hold that Tamara is mutually obligated for the payment of the hospital’s charges for its services furnished to Edward. Accordingly, we conclude that the summary judgment in favor of the hospital and against Tamara must be affirmed.
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Rulon, J.:
Defendant, Gregory Sidel, directly appeals from his conviction of possession of marijuana, K.S.A. 1991 Supp. 65-4127b, contending (1) the issuance of a warrant to search his residence was not based upon probable cause, and (2) the district court abused its discretion when imposing sentence. We affirm. The material facts are as follows;
On March 12, 1990, Drug Task Force Agent Bruce Watts applied to a United States Magistrate for the District of Kansas for a warrant to search the residence and outbuildings at 2050 S. Main in Wichita. Attached to this application was Watts’ supporting affidavit. A warrant was issued on the basis of the application and affidavit.
In the course of the search, paraphernalia relating to marijuana use, literature regarding marijuana farming, apparatus consistent with farming marijuana, and small amounts of maríjúana were seized. Eventually, the defendant moved, to suppress this evidence. The district court denied the motion to suppress, and the defendant was found guilty after a bench trial. Later, the defendant was sentenced to . one year of incarceration in the county jail.
THE SEARCH WARRANT
The affidavit supporting the application for the challenged search warrant provides as follows: • . >.
“AFFIDAVIT
“I, Bruce W. Watts, being duly sworn, do hereby state and depose that I am a Task Force Agent with the United States Department-.of Justice, Drug Enforcement Administration, hereinafter called ‘DEA’, having been so employed for approximately three months. I am vested with the authority to investigate violations of Federal law, including Title 21, United States Code. In the course of my employment with DEA and the Wichita Police Department Narcotic Section, I have received training in the illegal cultivation of marijuana and experience in other illegal drug operations during my two years as a narcotics investigator. Upon my oath, I state that I believe the following facts to be true based on my training and experience in regard to narcotics investigations and I know the following to be true:
“That marijuana cultivators keep calendars and other paper regarding the type of marijuana seed planted, the date the marijuana seed was planted, and the dates of watering and fertilizing, since the cultivation period is approximately two to five months;
“That drug traffickers maintain books, records, receipts, notes, ledgers, airline tickets, money orders and other papers relating to the transportation, ordering, sale and distribution of controlled substances';
“That drug traffickers commonly ‘front’ (provide drugs on consignment) to their clients; that the aforementioned books, records, receipts, notes, ledgers, etc. are maintained where the traffickers have ready access to them;
“That drug traffickers commonly maintain addresses or telephone numbers in books or papers which reflect names, addresses and/or telephone numbers of their associates in the trafficking organization;
“That the magazine known as ‘High Times’ is a magazine devoted to the cultivation of marijuana, the publishing of prices of illegal substances throughout the United States, and the techniques utilized by law enforcement authorities to locate and seize illegal marijuana growing operation, as well as illegal clandestine drug laboratories, and that the magazine ‘High Times’ advertises paraphernalia which is used in the illegal manufacture of controlled substances, and that the intent of the magazine is directed at non-law abiding citizens;
“That a company known as ‘The Seed Bank’, Postbus 5.6576 ZA Ooy, The Netherlands, advertises in ‘High Times’ as an authorized retailer of several types of marijuana seeds;
“Your affiant knows that cultivators of marijuana typically use marijuana seeds in the growing of marijuana. Your affiant knows that cultivators of marijuana sometimes utilize the hydroponics systems and this system consists, among other parts, of large halide or sodium filled light bulbs, transformers, electrical wiring, chemicals and timers, all of which are utilized to' conceal the marijuana growing operations, since it is an indoor operation and little or no natural sunlight is needed. Using large halide or sodium filled light bulbs known as ‘grow lights’ results in the use of large amounts of electricity, which is reflected in monthly utility bills.
“Your affiant received information that marijuana seeds have been sent on three different occasions to the address of 2050 S. Main, Wichita, Sedgwick County, Kansas during the year of 1989.
“Your affiant also received information that on July 18, 1989 a package from the URBAN TEK GROWERS SUPPLY, P.O. Box 574, Veñadak, WA 99037 was sent to 2050 S. Main. The URBAN TEK COMPANY advertises in ‘High Times’ as an authorized retailer of hydroponics growing systems.
“Your affiant then proceeded in checking the electric bills of the residence to determine if the residence had excessively high billing fees, and verified the excessively high bills through Kansas Gas & Electric Company. Between January 1989 and March 1990, the monthly electric bill Jor 2050 S. Main ranged between $32.00 and $113.00. In checking two other addresses next to 2050 S. Main, the monthly electric bills ranged between $12.00 and $32.00 between January 1989 and March 1990. Upon checking these houses, your affiant estimates that they are all similar in size.
“Your affiant also checked with the Wichita Water Department and verified the excessively high bills at 2050 S. Main. Between October 1987 and February 1990, the bi-monthly water bill ranged from 9750 gallons of water to 52,500 gallons of water. In checking two houses next to 2050 S. Main, your affiant verified the water bills to range between 750 gallons of water and 8250 gallons of water bi-monthly during the period October 1987 and February 1990.
“Your affiant, using the Kansas Gas & Electric Company and the Wichita Water Department verified that Arlene G. MOOMEY is the current resident at 2050 S. Main, Wichita, Kansas. Your affiant, using the Wichita Police Department’s computer, verified that Arlene G. MOOMEY and Arlene G. SIDEL are one and the same person. Your affiant also learned that there are several Wichita Police reports on file with the names; Greg SIDEL, Arlene G. MOMMEY [sic], and Arlene G. SIDEL all using the address of 2050 S. Main.
“On March 4, 1990 at 10:00 PM, your affiant walked by 2050 S. Main and observed aluminum foil taped to the inside of the windows on the south side of the residence. It is a common practice for indoor grow rooms to have the windows covered to prevent the high intensity light from being seen through the glass.
“On November 9, 1989 at 10:43 PM, an unknown caller called the Wichita Police Department Narcotics Section stating Greg SIDEL and his mother are growing and selling marijuana in the house located at 2050 S. Main.
“Based on the above, it is my belief that there is probable cause to authorize a warrant for the search of the premises of 2050 S. Main, Wichita, Kansas 67213 and seizure of contraband, paraphernalia used in an indoor growing operation concerning in particular the illegal manufacture and cultivation of marijuana, records, documents, ledgers, and literature concerning the manufacture, cultivation and distribution of marijuana.
“FURTHER AFFIANT SAYETH NOT
/s/ Bruce W. Watts Bruce W. Watts Task Force Agent Drug Enforcement Administration
Sworn and subscribed to before me this 12th day of March 1990
Is/ John B. Wooley John B. Wooley U.S. Magistrate”
Defendant specifically contends the search warrant is unsupported by facts sufficient to establish reliability or probable cause. In support of this claim, defendant principally relies upon three Kansas cases. State v. Toler, 246 Kan. 269, 787 P.2d 711 (1990); which reaffirmed State v. Walter, 234 Kan. 78, 670 P.2d 1354 (1983); State v. Rose, 8 Kan. App. 2d 659, 665 P.2d 1111 (1983). These cases discuss the principles set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), that the reliability and veracity of information presented by anonymous informants in an application or affidavit for a search warrant are to be judged by the “totality of the circumstances” rather than the two pronged Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) analysis. Defendant asserts the “totality of the circumstances” test does not relieve the State of the burden of proving reliability and credibility, but merely changes the analytic framework of judicial scrutiny. State v. Olson, 11 Kan. App. 2d 485, 726 P.2d 1347 (1986).
On the other hand, the State argues, in reviewing whether the issuance of the search warrant was supported by probable cause, our duty is simply to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. State v. Bartlett, 14 Kan. App. 2d 237, 238, 787 P. 2d 1211, rev. denied 246 Kan. 769 (1990). Additionally, the State contends “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts.” State v. Bartlett, 14 Kan. App. 2d at 238 (citing Illinois v. Gates, 462 U.S. at 236).
The district court, in denying the motion to suppress, found that probable cause was established by the tip that a package had been sent by a hydroponics growing systems dealer to 2050 S. Main, coupled with either the tip that marijuana seeds had been sent to the address or the tip that Sidel and his mother were growing and selling marijuana at the address. The court concluded two unknown or unverified statements could support a finding of probable cause.
We believe that although the source and reliability of an unidentified informant’s information no longer solely determines whether an affidavit supports a finding of probable cause, “[t]hese remain viable factors to be considered. [Citation omitted]. There must be some indicia of accuracy of the informant’s information. [Citation omitted.]” State v. Hemme, 15 Kan. App. 2d 198, 201, 806 P.2d 472, rev. denied 248 Kan. 998 (1991), cert. denied_ U.S. _(October 7, 1991).
In State v. Olson, 11 Kan. App. 2d 485, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986), the district court determined certain statements made in an affidavit were false and that after these statements were excised, no probable cause was shown. It thus suppressed the evidence found during the execution of the search warrants issued on the basis of the affidavit. 11 Kan. App. 2d at 486. On appeal, this court agreed with the district court that after certain statements were excised, the affidavit did not establish probable cause. We acknowledged that while an affidavit must be viewed under the totality of the circumstances to determine whether it supports a finding of probable cause and that informant reliability no longer must be proven, “there must be some indication that the informant’s tip is accurate.”. We further recognized that in cases lacking evidence of the informant’s reliability or credibility, independent police investigation is valuable in corroborating the informant’s tip. 11 Kan. App. 2d at ,491.
In both appellate briefs, the parties cite and rely upon three Kansas cases supporting their respective theory on the existence, or lack thereof, of probable, cause. We shall briefly revisit them.
In State v. Rose, 8 Kan. App, 2d 659 this court concluded that under the totality of the circumstances, probable cause. existed for. the search warrant which was, issued in that case. The supporting affidavit in Rose named the informant who had provided the critical information to the affiant. The informant also stated that he had personally observed the contraband which was the subject of the warrant, and described criminal activity which had occurred on two previous occasions. The occurrence of this prior criminal activity was verified by law enforcement officers, so this verification supplied an indicia of reliability to that informant’s tip. The equivalent of this verification or. indicia of reliability is lacking in the current case. 8 Kan. App. 2d at 663-64.
Similarly,, verification of the informant’s tip was present in State v. Walter, 234 Kan. 78, where the Supreme Court found the challenged search warrant to be supported by probable cause. In Walter, the sheriff stated in his supporting affidavit he received an informant’s .tip that the. informant had seen marijuana growing on the. described premises. The sheriff stated that he then went to the premises and observed from a public road what he believed to be marijuana growing on the premises. 234 Kan. 78, 79. Thus, the sheriff s personal observation provided an indicia of reliability to the informant’s tip.
In State v. Toler, 246 Kan. 269, 787 P.2d 711 (1990),. a police sergeant executed an affidavit, for a warrant to search an. address for drugs, drug paraphernalia, and various other, items evidencing drug dealing. In support of this request, the sergeant listed: (1) a controlled buy of drugs on a certain date at the address by a confidential informant who had provided reliable information to the police department in the past; (2) complaints made by former neighbors at another address approximately 15 months earlier that the residents of the address sought to be searched were dealing in drugs; (3) a call approximately seven months earlier from Department of Corrections personnél that one of the residents was suspected of smuggling drugs to an inmate; and (4) an anonymous Crimestoppers tip that one of the residents was dealing in drugs. 246 Kan. 269, 270. The defendant challenged the affidavit ás a source of probable cause for the issuance of the warrant, claiming the reliability and credibility of the confidential informant and of the allegations of drug dealing were not established. 246 Kan. at 271, 274.
In concluding that the affidavit presented probable cause, the Toler court emphasized the informant’s participation in a controlled drug buy:
“Although the confidential informant was not named in the affidavit here, he did. implicate himself in the criminal conduct by participating as a co-conspirator in the purchase of illegal drugs and thus subjecting himself to criminal liability. The affidavit also detailed the circumstances surrounding the controlled buy. Finally, the affidavit contained additional information which would indicate prior involvement in illegal drug activities by the party the confidential informant named as selling the drugs at the residence listed in the search warrant. Based upon the totality of the circumstances test . . ., the affidavit was sufficient to provide information establishing probable cause to believe that contraband or evidence of a crime would be found at the place named in the search warrant. We conclude that the district judge was justified in issuing the search warrant based upon Sergeant Garnian’s affidavit. The constitutional rights of the defendant were not violated by issuance of the search warrant.” 246 Kan. at 276.
In Toler, the controlled buy at the address sought to be searched by the informant thus provided an indicia of reliability to the statements in the affidavit. Although an unidentified informant’s reliability does not control the probable cause determination when examining an affidavit for a search warrant, the issuing magistrate must have a substantial basis. from which to conclude; probable cause for the warrant existed. As part of this substantial basis, there must be some indication that the informant’s information is accurate. In applying the totality of the circumstance test here, Agent Watts’s affidavit does not contain any indication that the three tips from the unknown or unidentified source or sources are accurate. Nor does the information learned by Agent Watts through his independent investigation corroborate the information contained in the three tips. We believe the affidavit simply does not provide a substantial basis for the determination of probable cause.
However, the defendant is not entitled to relief from this court because “where the trial court reaches the correct result based upon the wrong reason, [an appellate] court will affirm the trial court.” State v. Durst, 235 Kan. 62, 69, 687 P.2d 1126 (1984).
We believe the good faith exception to the exclusionary rule established by United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), saves the issuance of the search warrant here. Our Supreme Court discussed the Leon exception in State v. Probst, 247 Kan. 196, 203-04, 795 P.2d 393 (1990):
“In Leon the court traces the history and purpose of the exclusionary rule. Highly summarized, the exclusion of evidence which the police have unlawfully obtained is a penalty aimed at the police and is imposed to deter future wrongful conduct. A strong theme running throughout Leon is that evidence seized under a search warrant subsequently held to be invalid is not to be suppressed absent some chicanery or wrongdoing by the police. Leon refers to this as the good faith exception to the exclusionary rule. This is somewhat of a misnomer, as the opinion makes it clear that such evidence is not to be excluded unless bad faith is shown. As Leon states: ‘We . . . conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.’ 468 U.S. at 918. Hence, Leon states that the evidence so seized is not to be excluded unless it is shown: (1) that the judge or magistrate who issued the warrant was deliberately misled by false information; (2) that the judge or magistrate wholly abandoned his or her neutral and detached role; (3) that the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) that there was so little indicia of probable cause contained in the warrant that it was entirely unreasonable for an officer to believe the warrant valid. United States v. Leon, 468 U.S. at 923. [Citation omitted.]” 247 Kan. at 203-04.
Here, the defendant does not claim the executing officer believed the warrant was invalidly issued by a judicial officer or that the officer’s belief in the warrant’s validity was unreasonable. Our review of the record indicates there is no evidence to support such a claim even if asserted. We are convinced the application of Leon to the facts presented to us require this court’s affirmance of the district court’s refusal to suppress the evidence.
ABUSE OF DISCRETION IN SENTENCING
Defendant rests his contention of abuse of discretion on two points. He first claims the district court’s remarks at sentencing indicate the court considered a crime other than that of which defendant was convicted. Defendant additionally asserts the sentencing court failed to make a record of the sentencing factors listed in K.S.A. 21-4606.
The State responds that defendant’s sentence is within the statutory limits and that the record demonstrates the district court did consider the pertinent factors when sentencing defendant. We agree with the State.
The district court sentenced defendant to one year in the county jail. The crime of which defendant was convicted, possession of marijuana, is a class A misdemeanor, K.S.A. 1991 Supp. 65-4127b(a). Pursuant to K.S.A. 1991 Supp. 21-4502(l)(a), imprisonment for a class A misdemeanor shall be a definite term of confinement in the county jail, not to exceed one year. Clearly, defendant received the maximum sentence.
Our Supreme Court has settled this issue by saying:
“This court has held that it 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. [Citation omitted.]” State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988).
Defendant argues the court failed to make a record of its consideration of the factors enumerated in K.S.A. 21-4606 and thus abused its discretion. Our review of these factors, however, indicates most are inapplicable to the crime for which defendant was being sentenced, possession of marijuana.
The district court did consider defendant’s prior criminal record, pursuant to K.S.A. 21-4606(2)(a). Furthermore, our review of the record indicates the sentencing court was well aware that defendant was convicted of possession of marijuana, The sentencing court’s reference to the large number of growing plants found in defendant’s possession indicates the court was merely considering the nature and circumstances of defendant’s crime pursuant to K.S.A. 21-4606(1). The defendant’s sentence of one year in the county jail is within the statutory limits. The district court did not abuse its discretion.
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Rulon, J.:
Plaintiff, Linda Sonderegger, appeals the district court’s grant of summary judgment to defendant, United Investors Life Insurance Company, on the issue of whether a portion of a policy insuring the life of her deceased husband is subject to a provision excluding the insurer from liability in the event of suicide. We affirm.
FACTS
On January 6, 1975, defendant issued a modified premium whole life insurance policy (No. 10-99-89) to Linda Sonderegger as owner and beneficiary of the policy. Plaintiffs husband, Donald Sonderegger, was the insured under the policy, which has a face amount of $50,000. The policy limited defendant’s liability for Donald’s death from suicide through the following language: “If the Insured shall commit suicide while sane or insane within two years from the Policy Date, the liability of the Company shall be limited to the amount of premiums actually paid hereunder.” The policy also contained a conversion option provision which granted Linda the right to convert the policy on its tenth anniversary into other insurance as set forth in either option A or option B of the provision. Both options stated the new policy would be issued without evidence of insurability if the new policy had the same face amount or less as the original policy. The provision contained the following language: “If the policy is converted in accordance with provisions A or B above, the suicide clause shall be void in the new policy resulting from such conversion, and the new policy will be incontestable from its date of issue.”
In a letter dated November 9, 1984, defendant notified plaintiff of the approaching tenth anniversary of the policy and advised that pursuant to the policy, plaintiff could continue the coverage as an ordinary life plan or convert it to a decreasing' term insurance plan. Defendant further explained that because its new life insurance plans give greater value for the money, “we are extending to you the option to: purchase any policy now offered by our Company up to the amount of your Modified Premium Whole Life Policy without evidence of insurability.”
On December 6, 1984, plaintiff and her husband Donald completed an “MPWL Conversion Application for Policy Number 10-99-89.” The policy being applied for was termed “VITALIFE ART” for a face amount of $100,000. The application contained the following statement above the signature lines: “I acknowledge that the coverage provided by Policy No. 10-99-89 will permanently terminate when the policy applied for above goes into effect.” In addition to this conversion application, Donald completed a regular application for insurance.
Pursuant to these applications, an annual renewable term life insurance policy, No. 33-09-67, was issued on January 7, 1985. The face amount of the policy was $100,000, the insured was Donald, and the owner/beneficiary was plaintiff. The policy also contained a suicide exclusion: “If the Insured commits suicide, while sane ot insane, within two years from the policy date, our liability will be limited to the premium paid.”
On July 6, 1986, Donald Sonderegger died from an apparently self-inflicted gunshot wound. In response to a demand for payment of the full $100,000 under policy No. 33-09-67, defendant notified plaintiffs counsel by letter dated September 9, 1986, that defendant considered only $50,000 of the coverage to be converted and not subject to the suicide exclusion clause. Defendant further advised the remaining $50,000 was new coverage; there fore, defendant was not liable for that amount as the suicide occurred within two years of the policy’s issue date. The letter additionally stated, “The new policy [No. 33-09-67] was issued based on the conversion request and application in the amount of $100,000.”
Plaintiff eventually filed suit for the $50,000. Both plaintiff and defendant filed motions for summary judgment on the issue of whether the entire $100,000 coverage provided in policy No. 33-09-67 was converted from policy No. 10-99-89 and thus not subject to the suicide exclusion, or whether only $50,000 of the coverage was converted, so that the remaining $50,000 was new coverage subject to the exclusion. The parties reserved for jury trial the factual issue of whether Donald committed suicide. Ultimately, a jury found Donald committed suicide.
With regard to the parties’ motions for summary judgment, the district court found the two policies essentially identical except for the type and amount of coverage. Additionally, the court found the conversion options contained in the original policy did not allow a conversion to a policy with a greater face value. The court concluded: The second policy did not result from a conversion pursuant to the original policy, but from the exercise of the option contained in defendant’s November 9, 1984, letter to plaintiff; the second policy was issued after completion of not only the conversion application, but a regular application for insurance; defendant’s risk increased with the doubled coverage extended by the second policy; and defendant properly treated the second policy as half converted coverage and half new coverage when acting upon plaintiffs claim.
CONSTRUCTION OF POLICY
Plaintiff premises her argument on the theory that the second policy, No. 33-09-67, was obtained by exercising the conversion option defendant presented to her in the November 9, 1984, letter. She then claims that a suicide exclusion in a converted life insurance policy runs from the original policy’s date of issue, regardless of any change in the amount of death benefits. Plaintiff further claims the risk insured against in the two policies is the same, i.e., Donald’s death. Therefore, the two policies are sub stantially similar and are the same contract, despite the increase of the death benefit from $50,000 to $100,000.
To the contrary, defendant argues the increased death benefit in the second policy prevents part of that policy from being a continuation or conversion of the first policy and only the first $50,000 in death benefits under the second policy is continued from the old policy. Defendant further asserts the second $50,000, the amount by which the second policy’s death benefit was increased, is new coverage. Therefore, defendant argues the suicide exclusion in the second policy relieves it from liability under the policy for $50,000.
Our Supreme Court has said:
“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).
The general rule is that where an insurance policy is issued under a conversion option, whether a new, distinct, and independent contract results will depend upon the extent to which the terms of the substituted policy differ from the terms of the policy containing the option. Swanson v. First Fidelity Life Ins. Co., 214 Neb. 654, 657, 335 N.W.2d 538 (1983).
Plaintiff first cites and discusses Swanson in support of her contention that the second policy is converted coverage. In Swanson, on May 26, 1970, the insurer issued a $30,000 10-year nonparticipating convertible term life policy to Robert L. Swanson. The policy contained the following conversion option: “ ‘At any time . . . this Policy may be exchanged without evidence of insurability for a term policy of the same Amount of Insurance on any plan other than term insurance issued by the Company at the time of such exchange.’ ” 214 Neb. 654, 655.
Pursuant to this option, Swanson was issued a $15,000 whole life nonparticipating policy on May 26, 1980. This policy, like the first, contained a two-year suicide exclusion. The application attached to the 1980 policy stated this policy was a conversion to a $15,000 benefit and referred to the 1970 policy by its number. On September 16, 1981, Swanson committed suicide. 214 Neb. at 655-56.
In deciding the issue of whether the suicide exclusion dated from 1970 or 1980, the Swanson court first recited the general rule concerning policy conversion or continuation. 214 Neb. at 657. The court then compared the terms of the two policies. The 1970 policy was for a term of years and accrued no nonforfeitable cash value. The 1980 policy was for life and accrued a nonforfeitable cash value. The premium calculation for the .1970 policy was based on an insured age of 29 years, while that for the 1980 policy was based on an age of 39 years. 214 Neb. at 658-59. The court concluded,
“Notwithstanding those factual distinctions, however, the principal risk insured against in both policies was the same: the death of Swanson from whatever cause. As to that risk, the only thing which changed was the amount of coverage, it being reduced by half. We conclude, therefore, that under the facts and circumstances of this case the 1980 policy was not a separate and distinct contract from the 1970 policy but, rather, could only constitute a continuation of it.” 214 Neb. at 059.
Because the suicide exclusion ran from the date the first policy was issued, the insurer was liable for the death benefit designated in the second policy. 214 Neb. at 659.
In Swanson, as here, the conversion options limited the right to convert or exchange the first policy to a second policy for the same amount of insurance. In Swanson, while the second policy was not for the same amount of insurance, it was for a lesser amount. Thus the insurer s liability from the risk of the insured’s death was not increased by the second policy beyond the amount specified in the first policy’s conversion option. In the present case, the first policy insured Donald’s life for $50,000, but the second policy insured his life for $100,000. United Investors’ risk of liability for Donald’s death increased by an extra $50,000 of coverage.
Coverage extended by the second policy which does not exceed the amount specified in the first policy’s conversion option is a characteristic shared by other cases holding the second life insurance policy to be a continuation of the first life insurance policy. In Morse v. General American Life Ins. Co., 130 Neb. 37, 263 N.W. 676 (1935), cited by the Swanson court, the insurer issued a $2,000 life insurance policy to the insured in 1923. In 1933, the insured requested the insurer to decrease the coverage to $1,000. The second policy was issued and was identical to the first policy, except for the amount of death benefits and a premium which was also decreased by half. Attached to the second policy were the application and the medical examination for the first policy. The insured committed suicide within one year of the issue of the second policy. 130 Neb. at 38-39.
The insurer denied payment of the $1,000 death benefit, arguing the second policy was a new contract and therefore its one-year suicide exclusion did not run from the first policy’s date of issue. 130 Neb. at 39. The court first noted that the premiums under the two policies were the same for the same amount of insurance. Furthermore, the insured did not undergo a medical examination as proof of insurability or complete another application to obtain the second policy. 130 Neb. at 40.
The court found it clear that the insured had never applied for a new policy, but only requested modification of the first policy. Also, the first premium paid under the second policy was recorded as having been paid on the date the first policy was issued, and the premium payment schedule remained the same. The insured’s age was recited as the same in 1923 and 1933. If an entirely new policy had been intended, the premiums under the second policy would have been higher because the insured was 10 years older. Also, no new medical examination or application was required for the issuance of the second policy. 130 Neb at 41. The new policy was merely a continuation of the old, so the suicide exclusion ran from 1923, not 1933. 130 Neb. at 42. '
As with Swanson, the Morse decision is distinguishable from the present case because in that case the insurer’s risk decreased under the new policy, not increased. Another distinguishing feature in Morse is the absence of further proof of insurability provided by the insured when he requested modification or conversion of his first policy. No new application was completed and no new medical examination was done. In the present case, Donald Sonderegger completed a regular application for insurance in addition to an application for conversion of his policy. This regular application provided United Investors with information regarding Donald’s health at the time he applied for an extra $50,000 death benefit when he also requested conversion of his original $50,000 policy.
Plaintiff cites numerous other cases in support of her argument. We have carefully reviewed those cases and conclude they are distinguishable from the facts before us.
Binkley v. Manufacturers Life Insurance Co., 471 F.2d 889 (10th Cir. 1973), cited by defendant, supports the decision of the district court in our case. The insurer issued a group life insurance policy to the Bank of Denver on May 9, 1961, insuring the bank’s employees. The insured was issued a “Certificate of Insurance” on May 9, 1966, after taking a job with the bank. This certificate contained a clause allowing the insured, upon termination of employment, to convert his group coverage to individual coverage without evidence of insurability. Various conditions limited this option, including a condition that the amount of insurance under the individual policy could be no more than the amount of insurance terminated by the conversion. 471 F.2d at 890.
When the insured left his employment, he applied for an individual policy. This policy was issued May 26, 1969, and contained a one-year suicide exclusion. On November 5, 1969, the insured committed suicide. 471 F.2d at 891.
The Binkley court, in deciding when the suicide exclusion period began running, stated:
“[I]f the terms of the individual policy were the same as those of the group policy or if the terms of the individual policy were in accord with the provisions of the conversion clause in the group policy, then the individual policy and the group policy would be deemed a single, continuing contract to the end that the suicide clause in the individual policy would have commenced to run as the date of issuance of the group policy and as to the insured as of May 9, 1966.” 471 F.2d at 891.
The court continued, “In our view, the individual policy issued the insured differs from not only the general terms in the group policy, but differs also from the provisions in the conversion clause in the group policy.” 471 F.2d at 892. Among the differences between the two policies noted by the court was a varying amount of coverage. Under the group policy, the insured had $12,000 of coverage. But the individual policy had a face value of $15,000, despite the group policy conversion clause which limited thé value of a new policy to the amount of insurance under the group policy. The court also noted the insured underwent a medical examination in applying for the individual policy. Summary judgment for the insurer was affirmed. 471 F.2d at 891-93.
Based upon the record before us, we are convinced defendant issued a $100,000 policy insuring the life of Donald Sonderegger on the basis of the application to convert an existing $50,000 policy and the application for an additional $50,000 of insurance. This additional coverage was not continued from the first policy, but was new coverage. We are further convinced the two-year suicide exclusion in the $100,000 policy relieves defendant of its liability to pay the beneficiaries under this policy the additional $50,000 death benefit.
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Davis, J.:
The defendant, Christopher J. Allison, was convicted by a jury of child abuse in violation of K.S.A. 21-3609. He appeals, contending that the failure of the court to instruct on the lesser included offense of battery requires that we reverse. He alleges other errors but, because we agree with his contention that a lesser included instruction was required, we reverse and remand for a new trial.
Late one evening, the defendant approached Clyde Thornton as Thornton sat in a vehicle in front of the defendant’s apartment. The defendant accused Thornton of stealing checks and cash from an individual named “Tom.” Thornton then agreed to discuss the matter in the defendant’s apartment.
When the two entered the apartment, Tom, the victim of Thornton’s alleged theft, was in the bedroom with the defendant’s sister, Becky Robinson. Marty Rutherford, an acquaintance of the defendant, was also present.
The defendant and Robinson accused Thornton of the theft. At trial, defendant testified that Thornton pulled a knife and cut defendant on the hand and arm. Defendant testified that he punched Thornton in the head only after being cut. He further admitted to kicking Thornton once in the head after knocking Thornton to the floor.
Robinson testified that both individuals threw punches at each other, but defendant did not kick Thornton. She did not see who started the fight and did not see a weapon, although she heard someone yell “knife” during the fight. She observed cuts on defendant’s arm and knuckles after the fight.
Thornton and Rutherford testified that defendant was the aggressor. Thornton claims he was unarmed and that defendant had a fist pack in his hand when he struck. Both Thornton and Rutherford stated that defendant repeatedly hit and kicked Thornton in the head.
Based upon the above events, the defendant was charged with battery in violation of K.S.A. 21-3412, a class B misdemeanor and abuse of a child in violation of K.S.A. 21-3609, a class D felony. Thornton was only 13 years old but he stood 5 feet, 10 inches tall and weighed approximately 198 pounds. The defendant is 20 years old, stands 5 feet, ten 10 tall and weighs 130 pounds.
The State dismissed the battery charge prior to trial. The defendant did not request an instruction on battery. He was convicted of child abuse and sentenced to a term of three to five years in prison. The appeal follows.
While both parties agree that battery is a lesser included offense of child abuse, we find no Kansas case holding that this is the case. Our inquiry in this case is twofold: (1) Is battery a lesser included offense of child abuse and, (2) if so, is there evidence requiring a lesser included offense instruction?
Lesser included Offense
We note that the Supreme Court in the very recent case of State v. Hupp, 248 Kan. 644, 653, 809 P.2d 1207 (1991), while not called upon to decide this precise issue, assumed that battery was a lesser included offense of child abuse.
K.S.A. -21-3107(2)(d) defines an “included crime” as “a crime necessarily proved if the crime charged were proved.” “While the statute does not use the term lesser included offense,’ it does refer to lesser crimes and included crimes. If a lesser crime is included in the crime charged, it is commonly referred to as a lesser included offense under 21-3107.” State v. Fike, 243 Kan. 365, 367, 757 P.2d 724 (1988).
Fike applies a two-pronged test in determining whether a lesser crime is a lesser included offense:
“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. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under [K.S.A. 21-3107(2)(d)] if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” Fike, 243 Kan. 365, Syl. ¶ 1.
Application of the first prong supports defendant’s contention that battery is a lesser included offense of child abuse. “Battery is the 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. “Abuse of a child is willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3609. Battery requires “intentional touching or application of force“; a “willful beating” is an element of abuse of a child. Battery requires that the touching or application of force be carried out in a “rude, insolent or angry manner.” Abuse of a child requires that the requisite willful beating be “cruel.”
Although the corresponding elements of the two crimes are not described in identical language and there is a real difference at least in terms of severity between the two crimes, the defendant argues that the meaning of the language in the battery statute is synonymous with the meaning of the language in the abuse of a child statute. We do not find the language synonymous but would agree that the statutory elements of battery are among the statutory elements required to prove child abuse.
Application of the second prong also supports the conclusion that battery is a lesser included offense. The original complaint filed in this case alleged that the defendant hit Thornton. It also alleged that, after being hit, Thornton fell to the floor and defendant began kicking him in the face. The factual allegations in the information and evidence needed at trial to prove child abuse would also prove battery. Thus, under the second prong of Fike, we may conclude that battery is a lesser included offense of abuse of a child.
Instruction
A trial court in Kansas is required to give an instruction ón a lesser included offense, assuming there is evidence in the record supporting such an instruction even though the defendant has failed to request such an instruction.
“The duty of the trial court to instruct the jury on a lesser crime arises only where there is evidence upon which a defendant might reasonably be convicted of the lesser crime.” State v. Hutchcraft, 242 Kan. 55, Syl. ¶ 3, 744 P.2d 849 (1987). “In order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State or the defense for the purpose of proving what events occurred.” State v. Patterson, 243 Kan. 262, Syl. ¶ 3, 755 P.2d 551 (1988). “Evidence supporting such an instruction must be considered in the light most favorable to the defendant.” State v. Colbert, 244 Kan. 422, 427, 769 P.2d 1168 (1989).
The State contends that there was no duty to give a lesser included instruction because defendant testified he acted in self-defense only. According to the State, if the jury would have believed defendant, he would have been found not guilty and there was then no possibility that he would have been convicted on his testimony of the lesser included offense of battery.
In advancing the above argument, the State relies on State v. Young, 14 Kan. App. 2d 21, 784 P.2d 366, rev. denied 245 Kan. 787 (1989). In Young, the defendant was charged with aggravated battery. Even though a child had been severely beaten, leaving welts and bruises on his legs from his buttocks to his knees, the defendant testified that another had administered the beating and he had spanked the child with his hand three or four times only to show support for the other’s (mother’s) discipline. Based on State v. Hill, 242 Kan. 68, 73-74, 744 P.2d 1228 (1987) (an instruction on a lesser included offense is “unnecessary where the defendant’s testimony precludes a conviction for the lesser offense”), the Court of Appeals concluded that the defendant was not entitled to a lesser included offense instruction on simple battery because if the defendant were believed, he would not be guilty of aggravated battery or simple battery.
One very basic distinction between this case and Young is that Young denied doing anything that could be considered a crime. In this case, the defendant admits doing the act but contends he acted in self-defense. There was evidence offered by defendant and others that he did the acts he was charged with. There was evidence that defendant cruelly beat the victim and also evidence that defendant protected himself and hit the victim, but did not cruelly beat the victim. Under these circumstances, unlike Young, there was evidence upon which the defendant could have been convicted of battery.
Because we have concluded that battery is a lesser included offense of child abuse and because we find in the record some evidence requiring the giving of a lesser included offense instruction, we reverse and remand for a new trial. We need not address the remaining two alleged errors raised by the defendant except to say that the only error requiring reversal is the first one addressed.
Reversed and remanded for a new trial. | [
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Briscoe, C.J.:
Claimant Joyce Schad appeals from the district court’s determination that she sustained a 35 percent permanent partial work disability and Hearthstone Nursing Center and Travelers Insurance Company cross-appeal. The district court’s judgment was filed the same day as the opinion in Hughes v. Inland Container Corp., 247 Kan. 407, 799 P.2d 1011 (1990). Both claim ant and respondents filed motions for modification in light of Hughes. Both motions were denied.
K.S.A. 1990 Supp. 44-510e(a) provides in part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than percentage of functional impairment. ”
Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). The Supreme Court has interpreted this portion of K.S.A, 1990 Supp. 44-510e(a) in Hughes, 247 Kan. 407.
In Hughes, the district court took claimant’s reduction in ability to perform work in the open labor market expressed as a percentage, added it to the percentage by which her wages dropped, and divided by two to get the percentage of disability. In approving the district court’s computations in arriving at the percentage of disability, the Supreme Court said:
“We must construe the statute according to the context and the approved usage of the language and give effect to the statute as clearly written. [Citation omitted.]
“In so construing K.S.A. 1989 Supp. 44-510e(a), we conclude that both the reduction of a claimant’s ability to perform work in the open labor market and the ability to earn comparable wages must be considered in determining the extent of permanent partial general disability.
“In order to arrive at a percentage, a mathematical equation or formula must necessarily be utilized. The district court determined to give each element equal weight and averaged the two to arrive at a percentage. The statute is silent as to how this percentage is to be arrived at, and, absent any indication as to how this is to be accomplished, we cannot say that the district court erred in the method adopted and applied in the instant case.” Hughes, 247 Kan. at 422.
In this case, Schad argues the district court erred by failing to average her loss of access to the job market with the loss of actual wages in determining her percentage of disability. Hearthstone and Travelers have the same complaint but their argument differs as regards which numbers should be used in the formula.
In refusing to use the Hughes averaging approach in Schad’s case, the district court stated:
“The court concludes that the statute requires the trier of fact to give careful consideration to both subjects: access and wages.
“13. Does the court’s conclusion that the two-prong test must be applied require the averaging approach advanced by claimant’s attorney? . . . The Court does not believe that it does.
“It is always tempting to fall under the lure of consistency that a mathematical test purports to achieve. In fact, this approach is just as subjective as the next. ...
“What the court proposes is a work disability grounded upon findings of fact demonstrating the trier of fact gave consideration to both factors, but not requiring a straight jacket approach that will only invite manipulation and suppress honest judicial dialogue.”
This court is asked to determine if the district court erred in not using the Hughes averaging formula. We conclude the court did not err. We note at the outset the Hughes, court noted that 44-5I'0e(a) does not mention a formula and the court did. not require usage of the Hughes averaging formula in all cases. Instead, the Hughes court refused to say the district court’s use of that method of determining disability was wrong.
The parties also challenge the district court’s failure to apply any formula in determining Schad’s disability rating. In reaching its conclusion that Schad suffered a 35 percent loss of access to the labor market and suffered a 61 percent loss- in wages, the court found “[h]er present earnings and potential for future full time employment ameliorate limitations upon her access to the labor market and would make questionable an award based solely upon the highest estimates of that loss.” The court clearly used a balancing process to reach its conclusion that Schad suffered a 35 percent disability. In determining how much weight to give each factor and in computing a disability percentage, the court in effect created its own “formula.”
As previously stated, the Supreme Court did not say the only formula that can be used is the Hughes formula. The statute requires a balancing of two factors: ability to perform work in the open labor market and ability to earn comparable wages. These factors must be considered in light of “the employee’s education, training, experience and capacity for rehabilitation.” K.S.A. 1990 Supp. 44-510e(a). Thus, the court must consider all of the factors and compute the percentage of disability. .
Since the district court considered the statutory factors and in effect developed its own method for. weighing those factors, this court is in the same position as the Supreme Court in Hughes. “The statute is silent as to how this percentage is to be arrived at, and, absent any indication as to how this is to be accomplished, we cannot say that the district court erred in the method adopted and applied in the instant case.” Hughes, 247 Kan. at 422. There is no requirement in either Rule 165 (1990 Kan. Ct. R. Annot. 119) or in 44-510e(a) that the court explain its mental process in reaching a decision; therefore, the judgment is not defective.
The parties also complain the district court erred in refusing to modify its decision by holding that Hughes does not “require application of a mathematical equation to arrive at an appropriate permanent partial disability rating.” Given our finding that the district court here must have used some formula to weigh the two statutory factors and arrive at its conclusion, the court’s statement that use of a formula is not required is not reversible error.
Schad also contends the district court’s findings that she sustained a 35 percent loss of access to the labor market and suffered a 61 percent loss in wages are supported by substantial competent evidence. As Hearthstone and Travelers concede this point, we need not address the issue.
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Rulon, J.:
John H. Smelser, Jr., and Frank Dean Smelser, petitioners, appeal the district court’s order denying admission to probate of a portion of a codicil to their mother’s will. Lloyd Smelser, respondent, also Martha’s son and the executor of her estate, .cross-appeals the court’s order admitting a portion of the codicil to probate. We affirm the district court’s order.
The undisputed facts of this case are as follows:
On June 10, 1983, when Martha executed her last will and testament, she was the owner of a 160-acre tract on which her house was located. Paragraph four of her will leaves the north half of this tract to her son Lloyd and the south half to her other sons Frank and John. Martha then bequeathed all her remaining property to her three sons in equal shares. Martha executed a codicil to her will on April 5, 1989. The codicil expressly revokes paragraph four of her will and republishes her will as amended. Among the amendments to her will are bequests of $20,000 each to Frank and John. Martha died on January 31, 1990. Lloyd, as the named executor, ultimately filed an amended petition requesting probate of the will, but objecting to probate of the codicil. The petition specifically alleged the codicil does not reflect the testamentary intent of Martha because of scrivener mistake. Alternatively, the petition alleged improper execution of the codicil.
Margaret Smelser, Lloyd’s wife, testified that during their marriage, she and Lloyd lived near Lloyd’s parents and assisted them in their farming and cattle operations. On the other hand, John and Frank left the farm and never returned on a permanent basis. In 1973, Lloyd’s parents conveyed to Lloyd and Margaret two acres of the north half of the quarter. Later, Lloyd and Margaret built their home on this tract, near the home of Lloyd’s parents.
According to Margaret’s testimony, Martha decided to dispose of the south half of the quarter differently than providéd in her will. Martha wished to keep the entire 160 acres intact because this was necessary for Lloyd to continue the cattle operation, of which he was a partner. However, Martha did not want to eliminate John and Frank from the provisions of her will. Consequently, Martha sold the south half of the quarter to Lloyd’s family for $500 per acre or $40,000. Frank and John would equally share the $40,000 after Martha’s death. Martha never intended to change the testamentary disposition of the north half of the quarter to Lloyd.
Eventually, the attorney who drafted Martha’s will prepared and mailed the codicil to Martha. Margaret then took Martha to the Bank of McLouth where the execution of the codicil was witnessed and notarized. According to Margaret, Martha understood she was signing a codicil to her will. However, Margaret could not recall if Martha expressly declared the codicil to the subscribing witnesses and notary before execution. Margaret claims she first learned the codicil erroneously revoked the devise of the north half to Lloyd during a telephone conversation with Martha’s attorney after Martha’s death.
In addition to Margaret’s testimony, the district court heard the testimony of Martha’s attorney. He essentially testified that Martha expressly wanted the north half of the quarter to pass to Lloyd. Further, she intended the sale price of the south half to be equally divided between Frank and John. Martha specifically instructed that her will be amended to insert a bequest of $500 to her church, provide bequests of $20,000 each to Frank and John, and provide for an alternate executor. The attorney emphasized that Martha did not intend to revoke her earlier bequest to Lloyd.
The persons who acted as witnesses and the person who notarized Martha’s codicil also testified. Gloria Packer, an employee of the Bank of McLouth, stated that she, the other witness, the notary, and Margaret were present when Martha signed the codicil. Gloria testified Martha never stated that the document she was signing was a codicil to her will. Nor did Martha say whether she had read the document. Gloria did not read the attestation clause or the self-proving provisions of the affidavit before signing each as a witness. Dorothy McAferty, also a bank employee who witnessed Martha’s execution of her codicil, next testified. Dorothy testified that she was never told the document was a codicil and that she did not read any part of the document before signing it. Dorothy also testified that Martha never said she had read the document. Ronald Scott, the notary witnessing the codicil’s execution, also testified that he never read the document before notarizing it and that Martha never said anything about the document to anyone in his presence.
The district court admitted the will to probate and essentially made the following findings: Martha decided to change her will by selling the south half of the quarter to Lloyd and dividing the proceeds equally between John and Frank; Martha intended to keep the north and south halves of the quarter together; and the draftsman made a mistake when the language of the codicil revoked paragraph four of Martha’s will. The court then admitted the codicil to probate except for the portion revoking the bequest to Lloyd of the north half.
We must decide if the district court erred in refusing to admit to probate the portion of the codicil which revoked paragraph four of Martha’s will. Under the circumstances of this case, we conclude there was no reversible error.
On appeal, John and Frank argue the district court’s action in refusing to admit into probate a portion of Martha’s codicil is actually an improper modification of the codicil. They further argue that, because the language in the codicil revoking paragraph four of the will is clear and unambiguous, the use of probate hearing testimony or extrinsic evidence to determine Martha’s testamentary intent is impermissible.
Lloyd argues to us that the district court did not modify the codicil, but merely refused to probate a portion of the codicil that it held invalid. Specifically, Lloyd contends the codicil language revoking paragraph four of the will was caused by scrivener mistake and does not reflect Martha’s testamentary intent.
Our standard of review is clear:
“Where the trial court has made findings of fact and conclusions of law, the function of [an appellate court] is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. [Citations omitted.] 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 reasonablé 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).
John and Frank rely on the well-established rule , that where the language of a will is clear and unambiguous, a court cannot go beyond that document to determine testator intent. Theimer v. Crawford, 224 Kan. 586, 589, 582 P.2d 1151 (1977). However, this rule is applied only where the action is to construe or interpret the will after it has been admitted to probate. See Theimer, 244 Kan. at 586. This case involves an action not to construe Martha’s codicil, but to determine whether it is a valid expression of her testamentary intent and thus admissible to probate. The validity of a will or codicil does partly depend on whether it accurately expresses the testator’s true testámentary intent. A corollary to this rule is the requirement that the testator have knowledge of the will’s contents at the time of its execution for the will to be valid. In re Estate of Koellen, 162 Kan. 395, 402, 176 P.2d 544 (1947). Execution of the will establishes a rebuttable presumption that the testator has this knowledge. 162 Kan. at 402. Clear and convincing evidence must be presented to rebut this presumption. See McConell v. Keir, 76 Kan. 527, 534, 92 Pac. 540 (1907).
Other jurisdictions have ruled evidence extrinsic to the will showing scrivener error is admissible in a proceeding either to admit the will to probate or to challenge the. probate of the will. Such evidence is admissible to show the entire document or a part of it is invalid as not reflecting the testator’s true intent. Annot., 90 A.L.R.2d 924, 931. In an early Delaware case, the following instructions were given to a jury where the probate of á will was challenged:
“Another and more material ground of objection to the will is a supposed discrepancy between it and the instructions on which it was founded and from which it was drawn. If the jury are of opinion that these differences exist to such an' extent as to make the will essentially different from the instructions, they must then judge from the evidence whether these deviations! were made with the knowledge and consent of the testator. If they were npt made known to him, if the will was not read over, or its contents and variations from the instructions otherwise explained to him, then this is not *his will; but if he knew of and approved the alterations he adopted them by execution of the will, and the same ought to be confirmed.” Chander, et al. v. Ferris, 1 Del. (1 Harr.) 454, 464 (1834).
Similar instructions were given to the jury in Davis, et al. v. Rogers, 6 Del. (1 Houst.) 44, 98-99 (1855). In a much more recent case, Millman v. Millman, 359 A.2d 158, 160-61 (Del. 1976), the Delaware Supreme Court cited both Chandler and Davis in holding that a scriveners notes were admissible extrinsic evidence on the issue of whether a testator had knowledge of the contents of a will in a proceeding to determine whether the will should be admitted to probate. See Cowan v. Shaver, 197 Mo. 203, 213, 95 S.W. 200 (1906) (jury properly instructed that if testator executed will believing it disposed of his property in certain manner, but it did not, will was not valid).
Kansas joined the jurisdictions which permit the introduction of extrinsic evidence of scrivener mistake on the issue of whether a testator knew the contents of his or her will in Protheroe v. Davies, 149 Kan. 720, 89 P.2d 890 (1939). This case involved a challenge to a will which had been admitted to probate. The testatrix, at the time she executed her will, was 75 years old and handicapped. She lived on the first floor of her home, while a son and his family lived on the second floor. She spoke and read Welsh with ease, but spoke and read English with difficulty. The testatrix understood English when it was spoken only if it was spoken slowly. She was intelligent and her mind was alert. 149 Kan. at 722. The testatrix died two years after executing her will. Two of her children filed a petition contesting her will, alleging the will was not valid and was the product of undue influence exerted by the son who lived with her. 149 Kan. at 724-25.
While our Supreme Court affirmed the district court’s finding that the will was not the product of undue influence, it held the will was invalid. 149 Kan. at 729, 735. At trial, the scrivener of the will testified that he did not write the paragraph disposing of the testatrix’s home pláce according to her instructions.- The scrivener read this paragraph to the testatrix twice, once by itself and once as he read the entire will. Each time he read, it erroneously, not as he had actually written it. 149 Kan. at 726. The court concluded this testimony showed the testatrix did not have knowledge of the contents, of her will and therefore the will could not be valid as her last will and testament. 149 Kan. at 733-34.
We believe the district court here properly admitted the testimony of Martha’s attorney and Margaret on the issue of whether Martha’s codicil as written accurately reflected her testamentary intent regarding the devise of the north half. We are satisfied this testimony provides substantial competent evidence to support the district court’s factual finding that the scrivener erred in inserting a statement into the codicil which resulted in the revocation of the devise of the north half to Lloyd.
The effect of this scrivener mistake on the validity of the revocation of the devise to Lloyd must next be determined. Testator knowledge of the scrivener’s mistake is an important factor in the determination of whether a will is a valid expression of the testator’s testamentary intent. See Annot., 90 A.L.R.2d at 935-36. Some jurisdictions have held that where affirmative proof was presented that the testator was made aware of the contents of the will as written, the will is not invalid. See Annot., 90 A.L.R.2d at 941-42.
Other jurisdictions, however, have held to the contrary, finding a will containing scrivener error invalid despite the testator having been made aware of its contents or having had the opportunity to become aware of its contents. See Bradford v. Blossom, 207 Mo. 177, 222, 105 S.W. 289 (1907) (testatrix had will in her possession for 7 to 10 days before execution, but will not discussed with her before execution); Cowan, 197 Mo. at 210 (scrivener drafted will as dictated by testator and will then immediately executed); Annot., 90 A.L.R.2d at 936-37.
Here, the district court found that Martha believed the codicil accurately expressed her testamentary intent. The court’s finding that the codicil was not read at its execution and that it was not read to or by Martha is supported by the record. However, while Margaret did testify that she did not read the codicil to Martha after Martha received it in the mail, there is no affirmative evidence showing that Martha did not read the codicil herself at some time before it was executed. On the other hand, there is no affirmative evidence that she did read the codicil and was thus familiar with its contents before executing it. There is undisputed, substantial and credible evidence that Martha intended to devise the north half to Lloyd and to bequeath the sale proceeds from the south half to Frank and John. We conclude there is no affirmative evidence that Martha actually knew the codicil revoked the devise to Lloyd when she executed it. The codicil’s revocation of that devise is not a correct expression of her tes tamentary intent which allows the fulfillment of Martha’s actual testamentary wishes.
Finally, we must decide if, despite the lack of affirmative evidence that Martha was aware of the contents of the entire codicil, the district court properly refused to probate only that part which revoked the devise of the north half to Lloyd. In cases where the testator’s lack of knowledge of the will’s contents is due to scrivener mistake, deletion of only the portion inserted by error has been established as a proper method of correcting the error. Annot., 90 A.L.R.2d at 932. “This method of eliminating from a testamentary document parts not intended by the testator but inserted by mistake of the draftsman, if as amended the scheme of the will remains intact,” was approved by the Alabama Supreme Court in Fuller v. Nazal, 259 Ala. 598, 602, 67 So. 2d 806 (1953). Kansas also follows the rule that where a provision of a will is invalid for any reason and the testamentary scheme of the testator can be carried out regardless of the void provision, that provision will be stricken and the testamentary plan given effect. In re Estate of Robinson, 231 Kan. 300, 310-11, 644 P.2d 420 (1982). We conclude striking from the codicil only the revocation of the devise of the north half to Lloyd does not destroy the testamentary scheme remaining in Martha’s will and codicil.
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Prager, C.J.
Retired: John J. Rubick (defendant-appellant) appeals his conviction on one count of driving while under the influence. K.S.A. 8-1567(a). At the trial, Darrell Pressnell, a Kansas Highway Patrol Trooper, testified that he observed a pickup truck weave back and forth on a county road and remain entirely in the oncoming lane of traffic. He stopped the vehicle. The driver was the defendant. The trooper noted a wide-eyed and fixed stare and detected a strong odor of an alcoholic beverage. The defendant’s speech seemed slurred, his reactions were slow, and he stumbled and staggered. The trooper informed the defendant he wanted him to perform some field sobriety tests. Defendant refused to take the tests. The trooper then arrested defendant and took him to the sheriffs office. There, defendant refused to take a breath test.
A complaint was filed charging defendant with driving while under the influence of alcohol in violation of K.S.A. 8-1567. Defendant was tried by a magistrate judge. During the trial, the judge declared a mistrial when the State introduced evidence of defendant’s refusal to perform the field sobriety tests. The State appealed, and the district judge reversed and remanded the case to the magistrate judge for trial.
On April 22, 1991, the parties appeared for trial before District Judge Donald L. White, who announced that the magistrate judge was not available and asked the parties if they had any objection to the case being heard by a district judge. Defendant’s attorney stated that he had no problem with that.. Defendant’s counsel then waived the right to trial by jury, and a . full adversarial proceeding was held. The judge found the defendant guilty as charged. Defendant filed a timely notice of appeal.
Defendant raises two issues on the appeal. He first maintains that the district court lacked jurisdiction to try the defendant because defendant was not arraigned before trial before the district judge. We find this point to be without merit.
Although the record does not expressly, show that an arraignment was ever held, it is clear that both parties appeared for trial and were obviously aware that a trial had been scheduled and that defendant had entered a not guilty plea. Defendant did not request an arraignment, nor did he object or raise the issue below.
This issue is controlled by State v. Huber, 10 Kan. App. 2d 560, 562, 704 P.2d 1004 (1985), which holds that a defendant waives arraignment when he goes to trial without objection and submits the question of guilt to the trier of fact. Furthermore, the fact that the defendant was first tried before a magistrate judge and later by a district judge is of no significance. The defendant was charged in a complaint filed in district court. There is no separate magistrate court. No additional arraignment is required on remand where a defendant has entered a plea of not guilty, a magistrate judge declares a mistrial, the State appeals to the district court, and the district court reverses the magistrate judge’s decision and remands for trial.
Defendant’s second point on the appeal is that the trial court erred when it admitted into evidence the trooper’s testimony that the defendant refused to perform field sobriety tests. Defendant maintains that such evidence is not admissible because his refusal was an invocation of his constitutional right to remain silent when tried for a crime.
We find this point to be without merit as contrary to Kansas law. K.S.A. 8-1001 creates an implied consent by all drivers in Kansas to submit to breath, blood, or urine tests,’ and expressly states that refusal to submit to such testing is admissible in evidence at trial on a charge of driving under the influence. • The statute does not, however, expressly address field coordination tests. Decisions of the United States Supreme Court and the Kansas courts are in agreement that the constitutional privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative ñáturé.” Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); State v. Haze, 218 Kan. 60, 542 P.2d 720 (1975).
In State v. Haze, 218 Kan. at 62-63, it was held that, when ordered by a court to supply handwriting exámples,- an accused has no constitutional or statutory right to refuse and, if he- does so, the fact of his refusal may be admitted into evidence. The rationale of the' court was that the privilege against self-incrimination applies only to communications or testimony of an accused, but not to real or physical evidence derived from him. The court in part relied upon State v. Faidley, 202 Kan. 517, 450 P.2d 20 (1969), where the issue was the admissibility of defendant’s performance of a “heel-to-toe balance test,” which was held to be non-testimonial and not in violation of the defendant’s privilége against self-incrimiñation. The testimony of a highway patrol officer, describing defendant’s conduct, was held to be admissible.
In State v. Haze, the court stated that defendant’s communication of a refusal to give a handwriting sample was in substance an indication of the conduct of the accused, which should be treated as an act or conduct indicating consciousness of guilt, rather than a self-incriminating statement. Defendant was being as uncooperative as possible and evidence of these actions’ was properly presented to the jury.
In the more recent case of State v. Jones, 3 Kan. App. 2d 553, 555-56, 598 P.2d 192 (1979), the court held that coordination tests performed on the highway after being stopped on suspicion of driving while under the influence do not violate defendant’s privilege against self-incrimination, even in the absence of a Miranda warning. The court relied in part on State v. Faidley, 202 Kan. 517.
We are convinced that the rationale of these cases is applicable to and controls the result in the case before us.
We hold that the district court did not err when it admitted into evidence the trooper’s testimony that the defendant refused to perform field sobriety tests.
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PlERRON, J.:
Sedan Floral, Inc., appeals the district court’s denial of its motion to vacate or modify an arbitration award. Professional Builders, Inc., cross-appeals, challenging the district court’s refusal to allow it to recover attorney fees from Sedan Floral, Inc.
On January 2, 1989, Professional Builders, Inc., (PBI) and Sedan Floral, Inc., (Sedan) entered into a written contract whereby PBI was to construct an interior office for Sedan within an existing building.
A dispute arose between PBI and Sedan concerning PBI’s performance under the contract and PBI’s right to payment from Sedan. John Heckman, listed on the contract as architect for the project, is also PBI’s vice-president and 50 percent owner of that company. Article 10.1 of the contract provides that the architect is to serve as the owner s (Sedan’s) representative for the duration of the project. The architect is also responsible for reviewing and certifying the amounts due the contractor as well as issuing certificates for payment for such amounts. No formal certificate for payment was issued for PBI, but Heckman did issue a letter dated July 25, 1989, stating to Mike Wuerdeman of PBI, “It is my opinion that PBI has completed the project per the requirements of the Contract Documents.” Sedan claims PBI knew the contract had not been properly completed when Heckman gave his certification.
Other relevant provisions of the contract are as follows: “When the Architect agrees that the Work is substantially complete, the Architect will issue a Certificate of Substantial Completion.” Section 15.3. “Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when the Work has been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect.” Section 5.1. “Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the project is located.” Section 4.2.
The contract also contains a provision requiring all claims or disputes between the parties arising out of or relating to the contract, or the breach thereof, to be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. “The Contract shall be governed by the law of the place where the Project is located.” Section 19.1. The project was located in Independence, Kansas.
PBI and Sedan were unable to resolve their dispute; Sedan maintained that it had been denied a fair and independent determination by Heckman that the contract had been properly completed. PBI commenced arbitration proceedings, claiming it was due the full contract price for the project plus additional money for change orders. Sedan objected to proceedings in arbitration, claiming that Heckman was a necessary party. The arbitrator ruled that Heckman could not be made a party pursuant to the contract, which excluded the architect from all proceedings. Sedan attempted to remove the case to district court to add Heckman as a party, but that attempt was denied by the court.
A.J. Wachter served as arbitrator for the dispute, and on September 18, 1990, a hearing was held on the matter. On October 16, 1990, the arbitrator issued a written award granting PBI $28,919, plus interest thereon at the rate of 10 percent per annum from February 23, 1989, until paid. The arbitrator specifically excluded from the award any determination of the relationship between PBI and Heckman.
Pursuant to K.S.A. 5-411, on November 7, 1990, PBI filed an application for an order confirming the arbitration award in the district court of Montgomery County, Kansas. The application was to be heard by the court on November 20, 1990. On November 16, Sedan filed its answer to PBI’s application, and asked the court to vacate, modify, or correct the award. Sedan met the 90-day deadline stated in K.S.A. 5-412(b) for filing its motion.
On November 20, 1990, on Sedan’s motion, the district court continued the hearing on PBI’s application for confirmation of the award and allowed Sedan until December 4, 1990, to file an amended application to vacate or modify. On December 28, 1990, the matter was heard by the court. Sedan presented little, if any, evidence in support of its application to vacate or modify. The court denied Sedan’s application and confirmed the award.
After the court rendered its decision, PBI orally moved that it be allowed reasonable attorney fees and that the same be assessed against Sedan pursuant to K-S.A. 60-2007. PBI’s motion was denied.
On February 19, 1991, Sedan timely filed a notice of appeal in district court. PBI timely filed a notice of cross-appeal on February 26, 1991.
The first issue we need to address is whether the district court erred by finding the arbitrator’s award in favor of PBI was pot procured by fraud, corruption, or other undue means.
The arbitration proceedings in the present case were conducted under Kansas law relating to arbitration and, therefore, should be analyzed under the Kansas statutory requirements. Gillioz v. City of Emporia, 149 Kan. 539, 540, 88 P.2d 1014 (1939). Kansas statutes provide: “Upon application of a party, the court shall confirm an award, unless . . . grounds are urged for vacating or modifying or correcting the award.” K.S.A. 5-411. Further, an arbitrator’s award is presumptively valid unless one of the specific grounds in K.S.A. 5-412 can be proved. K.S.A. 5-412 provides in part: “(a) Upon application of a party, the court shall vacate an award where: (1) the award was procured by corruption, fraud or other undue means.”
Sedan contends that, because the architect responsible for certification of substantial completion of the project was also a 50 percent owner of PBI, he wrongly certified the project because it was to his financial benefit to do so. Sedan argues this amounts to fraud under K.S.A. 5-412(a)(l). PBI asserts that Sedan is essentially requesting appellate review of the arbitrator’s decision and that neither this court nor the district court can substitute its judgment for that of the arbitrator.
“Once an arbitration award is entered the finality that courts should afford the ■ arbitration process weighs heavily in favor of the award, and courts must exercise great caution when asked to set aside an award.” Foster v. Turley, 808 F.2d 38, 42 (10th Cir. 1986).
“Generally, where the parties have agreed to be bound to a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly made. Nothing in the award relating to the merits of the controversy, even though incorrectly decided, is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objections. Further, where an arbitration award made under the Kansas Uniform Arbitration Act is attacked by one of the parties, it is not the function of the court to hear the.case de novo and consider the evidence presented to the arbitrators. [Citation omitted.] Ordinarily, an arbitrator’s award will not be subject to judicial revision unless such award is tainted or based on an irrational interpretation of the contract. [Citation omitted.]” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988).
To establish fraud in Kansas there must be more than a mere preponderance of evidence, there must be clear and satisfactory evidence. Fraud is not presumed by the court. Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 346, 662 P.2d 1254 (1983).
Sedan alleges in its amended application to vacate or modify the award that Heckman, as architect and owner s representative for the project, did not fairly represent the interests of Sedan. Sedan further alleges Heckman wrongfully certified that PBI had completed its work on the contract and wrongly certified that PBI was entitled to payment from Sedan. The district court held that, even if the certification of substantial compliance by Heck-man was incorrect or fraudulent, the arbitrator certainly had that issue “hammered home to him and for whatever reason made the decision that he made.” The court declined to substitute its judgment for that of the arbitrator as the circumstances surrounding Heckman’s certification were the primary issue at arbitration.
The district court also addressed two other theories upon which Sedan alleged fraud: conflict of interest and fraud in the inducement to contract. The court found a conflict of interest was involved on the facts because Heckman, as an officer and part owner of PBI, made decisions that were binding on Sedan. Second, the court stated it was possible that Sedan was unaware of Heckman’s role as Sedan’s agent; therefore, Sedan could try to argue it was fraudulently induced into signing the contract and should not be bound by its terms. However, with respect to both theories, the district court felt the arbitrator had heard arguments and made his decision accordingly.
The issue of fraud on the part of Heckman and PBI was submitted to the district court as a factual issue. The district court found Sedan failed to show the arbitration award was procured by fraud, corruption, or undue means, as required by K.S.A 5-412. ■
“A trial’ court’s finding of fact will not be upset on appeal if there is any substantial competent evidence to support it, even though that evidence may be controverted. When the findings are negative, however, there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it.” Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 1, 679 P.2d 181 (1984).
See Duncan v. City of Osage City, 13 Kan. App. 2d 364, 368-69, 770 P.2d 843, rev. denied 245 Kan. 783 (1989). Based on the record in this case, Sedan failed to meet its burden of proof in demonstrating by clear and convincing evidence that fraud existed.
Furthermore, the district court indicated it believed the only type of fraud sufficient to overturn an arbitrator s award under K.S.A. 5-412(a)(l) is fraud on the part of the arbitrator. There is no Kansas case law directly on point.
“As a general rule any fraud or misconduct having a tendency to affect the award improperly will vitiate it and render it subject to impeachment.” 6 C.J.S., Arbitration § 151, p. 400. Kansas appears to follow this general rule. For example, in In re Arbitration between Johns Constr. Co. & U.S.D. No. 210, 233 Kan. 527, 664 P.2d 821 (1983), the court held the arbitrator’s exclusion of a particular witness was not fraud, misconduct, or improper action denying the school board a fair hearing or due process of law, where the arbitrator applied the same rule of exclusion to witnesses of both parties. 233 Kan. at 529-30.
In Foley Co. v. Grindsted Products, Inc., 233 Kan. at 346, the court also discussed the type of fraud required to vitiate an arbitration award. In that case, purported ex parte communication by a party to an arbitration proceeding made to the arbitrators was held not to constitute fraud sufficient to vacate the arbitration award. The ex parte communication at issue was a letter brief by the party’s counsel in response to the opposing party’s statement made during the arbitration hearing that he would summit a brief to the arbitrators. The court found there was no proof the letter brief in any way affected or played a part in the decision rendered by the arbitrators. See also Evans Electrical Constr. Co. University of Kansas Med. Center, 230 Kan. 298, 308, 634 P.2d 1079 (1981) (in action by electrical contractor to set aside arbitration award, finding that the award of only $24,342 to contractor was not procured by fraud was supported by substantial evidence).
The above cases, which discuss the type of fraud sufficient to overturn an arbitration award under K.S.A. 5-412(a)(l), consider only fraud in the actual arbitration proceeding itself, i.e. whether a party has committed perjury during the hearing or whether the arbitrator has exhibited bias towards one of the parties. This type of “procedural” fraud is not alleged by Sedan in this case. The fraud of which it complains occurred wholly outside the arbitration process and is in fact the grounds upon which the arbitration process commenced. The district court found that whether Heck-man fraudulently certified the project to benefit himself and PBI was the primary issue before the arbitrator, and the arbitrator would certainly have heard arguments regarding this issue from both sides before he rendered his decision. Thus, based on the limited scope of review of arbitration proceedings, the award should be upheld.
Another issue raised by Sedan was whether the trial court was correct in determining the arbitrator had heard and ruled upon any “conflict of interest” of the architect as vice-president of PBI. This contention has essentially no bearing on whether Sedan could successfully prove the award should be vacated pursuant to K.S.A. 5-412(a)(l). The district court found the arbitrator had heard arguments regarding Heckman’s certification and considered them in arriving at his decision. The arbitrator did state in his award that he did not make “any determination of the relationship between PROFESSIONAL BUILDERS, INC. and architect, John E. Heckman.” However, this does not mean that the arbitrator did not consider the relationship at all in making the award. Most significantly, Sedan does not demonstrate how any conflict of interest between the parties could have led to fraudulent procurement of the award. The two events are completely unrelated.
The last issue we need to address is whether the district court erred in refusing to award attorney fees to PBI pursuant to K.S.A. 60-2007.
PBI claims it is entitled to attorney fees under K.S.A. 60-2007(b) because Sedan’s amended application to vacate or modify the award had no reasonable basis in fact and was not asserted in good faith. Sedan does not respond to PBI’s cross-appeal.
The assessment of attorney fees under K.S.A. 60-2007(b) lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983).
“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). See In re Marriage of Ross, 245 Kan. 591, 598, 783 P.2d 331 (1989); State v. Requena, 14 Kan. App. 2d 234, 236, 788 P.2d 287 (1990); DeWerff v. Schartz, 12 Kan. App. 2d 553, 557, 751 P.2d 1047 (1988).
K.S.A. 60-2007(b) provides in part:
“At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or has denied the truth of a factual statement in a pleading or during discovery, without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial.”
“The purpose of K.S.A. 60-2007 is to penalize only willful misuses of the judicial process.” Southgate Bank v. Fidelity & Deposit Co. of Maryland, 14 Kan. App. 2d 454, 460, 794 P.2d 310 (1990).
“[T]wo separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact, and (2) the claim was not asserted in good faith.” Rood v. Kansas City Power & Light Co., 243 Kan. 14, 24, 755 P.2d 502 (1988). See Smith v. Dunn, 11 Kan. App. 2d 343, 346, 720 P.2d 1137 (1986).
PBI contends Sedan’s amended application to vacate or amend the award had no reasonable basis in fact because Sedan essentially asked the court to presume fraud and offered no evidence in support of its allegations of fraud by Heckman and/ór PBI. PBI next contends that, by failing to allege facts to support the fraud claim, Sedan acted in bad faith.
Although Sedan’s position impressed neither the trial court nor this court, we do not find the argument concerning Heckman’s possible conflict of interest and the concomitant possibility of fraud to be frivolous. We believe the relative paucity of authority interpreting K.S.A. 5-412(a)(l) and the wording of the provision itself leaves room for a good faith presentation of Sedan’s argument. We find no abuse of discretion and affirm. | [
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Lewis, J.:
This is an appeal by Farmers Alliance Mutual Insurance Company (FAMI) from an adverse ruling in a workers compensation case. The Workers Compensation Fund (Fund) cross-appeals certain issues relevant only to its potential liability.
At the outset, we note that this appeal does not involve the usual issues presented in a workers compensation case. There are no issues concerning the propriety of the award to claimant insofar as disability, causation, etc. are concerned. The issues presented on appeal revolve around whether the workers compensation policy issued by FAMI to Lien Enterprises, Inc. (Lien) was void ab initio for fraud. There is also a question as to whether the court had jurisdiction to deal with the issues in the manner utilized.
The facts show that Lien was the employer of claimant and was the insured under a policy issued by FAMI.
The genesis of this dispute occurred when Lien made a decision to cancel its insurance coverage with one insurance agency and write that coverage through the Henry Insurance Agency (Henry). This decision involved the transfer of all of Lien’s insurance business, including its workers compensation coverage policy, from the Wayne Wright Insurance Agency (Wright) to Henry.
Originally, Henry advised Lien to cancel all of its insurance with the exception of its workers compensation coverage. Accordingly, Lien advised Wright that it desired to cancel all of its insurance coverage issued through that agency with the exception of the workers compensation coverage. Upon being advised of Lien’s intentions and desires, Wright responded by advising that it would not continue the workers compensation coverage alone. Lien then advised Henry that, if Lien was going to move its business, Henry would have to find it appropriate workers compensation coverage. Henry responded: “That’s okay. It’s no problem.”
Upon being given this assurance by Henry, Lien mailed a letter to Wright cancelling all of its insurance coverage, including its workers compensation coverage. As of June 9, 1987, Lien believed that Henry had bound coverage on all of its insurance needs, including its workers compensation coverage.
On June 12, 1987, there was no workers compensation policy which had been issued by FAMI or any other company to insure the workers compensation needs of Lien. Unfortunately for all, on that date, claimant Danny F. Coffman, one of Lien’s employees, sustained major injuries while performing his duties in Lien’s employ.
After being made aware of the accident involving claimant, the principal officers of Lien knew that, on the date of the accident, they had no written binder or other written verification of a workers compensation policy. The officers of Lien consulted with their attorney, who advised them to remain silent about the accident and to wait a reasonable time to obtain written verification of a workers compensation policy before reporting the accident. It is apparent that Lien took this advice to heart as there is no evidence that any of its officers or employees reported or revealed the occurrence of the accident in which claimant was injured until after a workers compensation policy had been issued by FAMI and was in hand.
Meanwhile, before and after claimant’s accident, Henry was busy attempting to obtain workers compensation coverage for Lien. Although Henry was not an authorized agent for FAMI, it had placed coverage in the past with FAMI through C. A. Langhofer & Associates, Inc., (Langhofer) which was an authorized agent for FAMI. On or about the date of claimant’s accident, Henry was working with Langhofer in an effort to place Lien’s workers compensation coverage with FAMI.
Henry, at Lien’s request, was seeking to secure a binder or policy of workers compensation coverage which would be backdated to June 8, 1987. It eventually obtained such a policy from FAMI through Langhofer.
The issuance of the policy by FAMI was accomplished through the efforts of Kim Venable, an employee of FAMI, and Carol Elliott, an employee of Langhofer. On June 25, 1987, Elliott telephoned Venable and asked if FAMI would issue workers compensation coverage to Lien, backdated to June 8, 1987. In response to this request, Venable asked Elliott if there had been any accidents involving Lien employees since June 8, 1987. Elliott advised Venable either that there had not been any accidents or that there were none to her knowledge. Elliott, in fact, had no information on which to base her statement of no accidents. She did not know of any accidents and did not inquire of Lien or Henry to determine if they knew of any accidents. Not only is there no evidence that Elliott made any inquiries of Lien or Henry, there is no evidence that she was misled by anyone in advising FAMI that no Lien employees had been in a workers compensation covered accident during the time in question. Elliott had provided FAMI with incorrect information which she had negligently failed to verify.
Based upon the assurances by Elliott, Venable authorized the issuance of a binder of workers compensation coverage to Lien, backdated to June 8, 1987. This binder was issued and was not cancellable for a minimum period of 60 days. A few days after issuing the binder, Venable received an unsigned insurance application from Langhofer and issued the workers compensation policy. The application form forwarded by Langhofer purported to be from Lien, but was unsigned and did not ask any questions about accidents which might have occurred before or after June 8, 1987. The fact of claimant’s accident was not disclosed on the application.
On July 27, 1987, FAMI received notice of claimant’s accident and his intention to make a claim against the policy in question based on the June 12 accident. After an extensive investigation, FAMI denied coverage under the workers compensation policy.
FAMI took the position that the policy was procured by fraud and was void ab initio. This issue was decided adversely to FAMI, and it appeals that decision.
In addition to the appeal by FAMI, the Fund has cross-appealed on certain issues which were decided adversely to it.
We affirm the decision of the trial court, holding FAMI’s policy to be valid and binding. This decision renders the cross-appeal issues moot.
THE JURISDICTION ISSUE
Before dealing with the merits of the appeal by FAMI, w.e first turn to a question of jurisdiction which is raised by FAMI.
As pointed out earlier, the only question litigated was that of coverage. In resolving the question of coverage, the court considered the relationship between FAMI and its agents. In par ticular, the court considered the relationship between FAMI and Langhofer as well as the errors made by Langhofer in procuring the policy and the relationship of those errors to the issuance of the policy. FAMI argues that, in a workers compensation proceeding, the court has jurisdiction only to consider the rights and liabilities of the parties to the action. In this particular instance, the formal parties to the action, in addition to claimant, were Lien, FAMI, and the Fund. FAMI argues that, when the court considered and then adjudicated the errors of Langhofer and their impact on the coverage question, the court exceeded its jurisdiction. We do not agree.
FAMI cites King v. El Dorado Motor Co., 181 Kan. 477, 311 P.2d 999 (1957), as support for its position. We consider the reliance on King to be misplaced. In King, an adjudication was made holding an insurance agency directly liable for a claimant’s injury. The Supreme Court reversed, holding that there was no jurisdiction over the insurance agency in a workers compensation proceeding. The facts of the instant matter are not similar to King. In the matter presently under consideration, the trial court made no effort to adjudicate or determine any liability on behalf of Langhofer. It merely considered the actions of Langhofer and Henry along with the other facts in its resolution of the question of coverage. There was no effort to assert jurisdiction over Langhofer or Henry or to hold either of those agencies responsible to claimant for his injuries. This case is clearly factually distinguishable from King.
In Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456 (1940), the Supreme Court held that the procedures for deciding workers compensation issues under the Act are complete, distinct, and exclusive. Indeed, in order to resolve the issues relative to a claimant, the court in a workers compensation proceeding is compelled to “hear all evidence bearing on all points and on all branches of the case.” 151 Kan. at 299. In the matter under consideration, one of the most important features of the claim was whether FAMI was obligated to pay the claim under the policy it had issued to Lien. In resolving that issue, the court was obligated to hear all of the evidence bearing on that question, including evidence of the actions of Henry, Elliott, Venable, and Langhofer, and to determine how that evidence related to the question of coverage. We have ho hesitation in holding that the court had jurisdiction to consider the relationship between FAMI, Langhofer, and Henry in resolving the coverage question in the instant matter.
THE COVERAGE ISSUE
The critical issue on this appeal is whether FAMI is bound by the policy it issued to Lien. FAMI argues that it is not — that the policy was procured by fraud and is subject to rescission since it was void ab initio.
The trial court made extensive findings of fact on all issues involved. FAMI does not directly challenge any of those findings of fact, and we consider them to be final and binding upon all parties.
FAMI raises a question of how the law should be applied to the facts as determined by the court. On appeal, our review of questions of law is unlimited, and we are not bound , nor constrained in any way by the decision of the trial court in resolving legal issues. See Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989).
The facts show that, at the time of claimant’s accident, Lien had no workers compensation policy with FAMI. Indeed, it had no policy with anyone and had only the oral assurance by Henry that such coverage would ultimately be obtained. The record further shows that Lien, on advice of counsel, deliberately failed to disclose the fact of the accident to Henry, Langhofer, or FAMI. It clearly appears that, at the time FAMI issued its binder and subsequent workers compensation policy, it had not been advised by Lien, Henry, or Langhofer of the fact of claimant’s accident. A reasonable interpretation of the facts leads us to the obvious conclusion that, had FAMI known of claimant’s accident, it would not have issued the policy on which its liability is now based.
There is no question but that an insurance company hás the right, under most circumstances, to rescind a policy ab initio for fraud and misrepresentation. American States Ins. Co. v. Ehrlich, 237 Kan. 449, 701 P.2d 676 (1985); Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730 (1931); Dunn v. Safeco Ins. Co., 14 Kan. App. 2d 732, 735, 798 P.2d 955 (1990). Indeed, we have recently held that an automobile insurance company “has the right, upon proper proof, to rescind a policy or binder ab initio for fraud or misrepresentation where the controversy involves only the insurer and its insured over nonliability, non-compulsory features of the insurance policy.” Dunn v. Safeco Ins. Co., 14 Kan. App. 2d 732, Syl. ¶ 2. See Continental Western Ins. Co. v. Clay, 248 Kan. 889, Syl. ¶ 2, 811 P.2d 1202 (1991).
It would appear that, upon proper proof, a workers compensation policy could be rescinded ab initio for fraud and misrepresentation. There appears to be no public policy or legislative enactment to prohibit such an action. The rescission of a workers compensation policy ab initio would not leave the claimant without a remedy since under those circumstances a claimant would be paid his compensation either by the employer or, if the employer was unable to pay it, from the Fund. For our purposes, we will assume that, upon proper proof, FAMI could rescind the policy in this action for fraud or misrepresentation.
The theory on which FAMI proceeds is sound and well recognized. The problem arises when we examine the record for proof of the necessary elements to support that theory. Upon our examination of the record, we find that the facts, as found by the trial court, simply do not support rescission for fraud.
It is simple hornbook law that, if one is to successfully seek relief on the grounds of fraud or misrepresentation, one must necessarily prove a fraudulent act and prove that such act was relied upon to one’s detriment. Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 2, 739 P.2d 444 (1987); Lentz Plumbing Co. v. Fee, 235 Kan. 266, 270, 679 P.2d 736 (1984); State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, Syl. ¶ 1, 715 P.2d 1045 (1986). Although the subject could be debated, arguably Lien was guilty of some fraud or misrepresentation in failing to disclose the fact of claimant’s accident. It seems beyond dispute that Lien knew that disclosure of the accident would effectively destroy any hope it had of obtaining insurance coverage.
FAMI’s problem is that it failed to prove that it issued the policy in reliance on any statements made by Lien or that it was induced to issue its policy in reliance on Lien’s silence or failure to disclose the fact of the accident. There is, in our opinion, strong evidence of fraud or misrepresentation, but the total failure to show action in reliance on such fraud or misrepresentation is fatal to FAMI’s argument.
The record shows that FAMI issued the antedated binder before Lien’s application for insurance was received by the company. Venable, who was FAMI’s employee, authorized Elliott, who was Langhofer’s employee, to issue the binder and to backdate it to June 8, 1987. Venable knew the binder was unequivocal and could not be cancelled for 60 days. Venable further knew that she had the authority to reject the request for the binder. Indeed, if FAMI relied on any representations in issuing the binder and subsequent policy, it relied on those of Elliott. Elliott, on behalf of Langhofer, FAMI’s agent, advised FAMI that there had been no accidents. Elliott had no basis for making this statement and was not induced to do so by any misrepresentations of Lien or Henry. There is simply no evidence to indicate that FAMI was induced or encouraged to do anything by any fraud or misrepresentation perpetrated by Lien. FAMI issued its binder based on its own agent’s incorrect and negligent assurances that there had been no accidents. It did not do so because of any fraud by Lien, and it did not do so because of any failure by Lien to disclose the accident. FAMI is, therefore, unable to rescind its policy as being void ab initio because of fraud or misrepresentation.
FAMI argues that Lien had a duty to advise it of claimant’s accident. It argues, believably, that, had Lien done so, it would never have issued the binder or policy. FAMI cites Matlock v. Hollis, 153 Kan. 227, 109 P.2d 119 (1941), as support for its argument. We do not agree.
In Matlock, the facts indicated that the employer did not even contact his agent about his insurance until after the accident had taken place. Further, the employer in Matlock made an application for insurance, stating, falsely, that he had carried workers compensation insurance for five years, that he had had only two minor accidents, and that he had never had any insurance can-celled. All of these statements were false, and all of these-statements were relied upon by the insurance company in issuing the policy. The Supreme Court held that, under the circumstances, the policy was procured by fraud and misrepresentation and was void. ...
TKe present controversy is clearly distinguishable from Matlock. In Matlock, there were direct and untrue misrepresentations made in the application which were relied upon by the company in issuing the policy. In the present controversy, there was no direct contact between Lien and FAMI, and the binder was issued prior to receipt of the application from. Lien. The policy itself was issued in reliance on an application forwarded to FAMI by Langhofer, which purported to be from Lien but which was unsigned and which did not even ask questions concerning prior accidents. In addition, Lien had requested the insurance coverage, had paid a premium, and had been assured of coverage by Henry before the accident took place. Indeed, the trial court found that Lien believed Henry had bound workers compensation coverage for it prior to the accident. We do not consider Matlock to have relevance to the factual pattern presented.
FAMI insists it would not have issued the policy if Lien had disclosed the fact of the accident. We do not doubt the correctness of that statement. That fact does not, however, make the policy void. The record shows this policy was issued in reliance on assurances made by Elliott and the Langhofer agency. Lien’s silence did not induce FAMI to write the coverage; the assurances of Elliott did. There must be a showing that the failure to reveal the accident was somehow relied upon by FAMI or somehow induced it to issue the policy. That showing is absent. The fact is, Lien had no direct communication with FAMI or Langhofer. Lien’s communications were directly with Henry, and, if Henry failed to forward all information to Langhofer, this can hardly be blamed on Lien.
We hold that, under the facts, FAMI has shown no detrimental reliance upon any fraud, misrepresentations, or failure to disclose facts chargeable to Lien. As a result, there is no right to rescind the policy ab initio for fraud. The policy issued by FAMI was valid and is binding on FAMI.
We note that the principal misrepresentations relied upon by FAMI in issuing the policy were the statements by Elliott that no accidents had taken place. It is, therefore, obvious that the principal cause for any loss FAMI may suffer is Langhofer. In this connection, we note that FAMI has obtained a judgment against Langhofer for its loss, and that judgment has been affirmed by this court in Case No. 64,273, an unpublished opinion filed April 20, 1990.
There were a number of other issues raised. For instance, the trial court held that FAMI was estopped, for various reasons, to deny coverage. In view of our decision on the rescission issue, we need not reach the other questions raised by FAMI.
We affirm the decision of the trial court on the question of FAMI’s responsibility for coverage under its policy. This decision renders the cross-appeal issues raised by the Fund moot, and we do not reach those issues.
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Pierron, J.:
Kansas Sunset Associates (Sunset), plaintiff-appellant, appeals from an order dismissing its case against Kansas Department of Health and Environment (KDHE), defendant-appellee, for failing to comply with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). K.S.A. 77-601 et seq.
On April 17, 1987, KDHE issued a wastewater disposal permit to Sunset. Sunset operates a mobile home park in Sedgwick County. The permit allowed Sunset to construct a lagoon to handle sewage from the park.
The permit contained the following clause: “This facility shall be considered a temporary treatment system. The permittee shall transport all wastewater to a more permanent facility when interceptors become available.”
On February 14, 1990, KDHE informed Sunset that sewer interception and collection facilities were being developed in the area of the mobile home park. KDHE told Sunset it intended to enforce the above provision of the permit and revoke the permit and require Sunset to connect to the sewer system.
Sunset filed suit on May 24, 1990, seeking declaratory relief. It argued KDHE’s proposed actions were outside the authority of K.S.A. 1990 Supp. 65-165, which governs permits for discharge of sewage. KDHE filed a motion to dismiss, arguing the action was covered by the Kansas Administrative Procedure Act (APA), K.S.A. 77-501 et seq., and that Sunset should have sought relief in accordance with the KJRA.
On November 21, 1990, the district court granted the motion to dismiss. Sunset timely appealed.
Sunset argues it was not required to follow K.S.A. 77-601 et seq. because no agency action was involved. It argues it sought only to define the scope of KDHE’s statutory authority to revoke its permit.
K.S.A. 77-602(b) defines agency action as “(1) [t]he whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.”
K.S.Á. 77-603 states in part:
“(a) This act applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.
“(b) This act creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.”
Under K.S.A. 77-613, a petition for review must be filed within 30 days after the agency action. Interlocutory relief is available. K.S.A. 77-608.
K.S.A. 77-622(b) states:
“The court may grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate.” (Emphasis added.)
The KJRA is the exclusive means of judicial review of agency actions unless the agency is specifically exempted from application of the Act. K.S.A. 77-606. KDHE has not been specifically exempted.
Both the issuance of the permit arid the letter stating the intent to revoke the permit were agency actions under 77-602(b)(3). Sunset failed to file a petition for review in time and, therefore, waived its right to judicial review. The trial court was correct in dismissing the case for lack of jurisdiction.
Sunset further argues the KJRA should not be construed to deprive it of its substantive rights arising under the Declaratory Judgments Act, K.S.A. 60-1701 et seq. Sunset bases this argument on K.S.A. 77-603(b), which states: “This act creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.”
It is correct that the KJRA does not deprive a party of the right to declaratory relief. K.S.A. 77-622. However, in order to obtain this relief, the procedural requirements set forth in the KJRA must be followed. A petition for review must be filed within 30 days after an agency action. K.S.A. 77-613. Sunset did not lose its right to a declaratory judgment because of the KJRA supplanting K.S.A. 60-1701 et seq.; it lost its right to a declaratory judgment because of its failure to follow the procedural rules set forth in the KJRA.
KDHE argues that the only appropriate time to appeal by the plaintiff was immediately after the issuance of the permit in 1987. It is not clear from the trial court’s memorandum decision whether the fatal failure to follow the KJRA occurred in 1987 or 1990.
KDHE’s position is probably correct. The rights and obligations under the permit were declared in 1987.' If the plaintiff objected to the hook-up provision, it needed to appeal then. We do not agree that the question was not ripe at that time. The requirement to hook up to the interceptors when they became available was unequivocal and a condition of the permit being granted. Plaintiff cannot accept the permit and wait to appeal portions of .it at a later time. .
In any event, whether the plaintiff failed to follow the. KJRA in 1987, 1990, or both is academic as it obviously failed to do so at any point where it could effectively challenge the ruling.
The KJRA clearly states it is the exclusive mechanism for review of agency actions. Declaratory relief is-available to those who comply with the KJRA, The trial court was correct in dismissing the action. ' ...
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Gernon, J.;
This case is on appeal for the second time. This court, in Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d 361, 790 P.2d 948 (1990) (Allen I), reversed and remanded with instructions for the City of Lawrence (City) to hold a hearing on a demolition permit application.
Allen I dealt with the application of Allen Realty, Inc., (Allen) to the City for a demolition permit for a structure owned by Allen known as the English Lutheran Church (Building) at 1040 New Hampshire Street in Lawrence. The Douglas County Courthouse (Courthouse), which is listed on the National Register of Historic Places, is situated south of Eleventh Street and fronts on the 1100 block of Massachusetts Street. Massachusetts Street in Lawrence runs one block west of New Hampshire Street.
The Building is near the Courthouse and, therefore, the State Historical Preservation Officer (SHPO) was notified of Allen’s application for a demolition permit. Such a notice is required by K.S.A. 75-2724. Also, the City of Lawrence is a party to a Cer tified Local Government Agreement, dated July 11, 1989, under which the City agrees, among other matters, to “maintain a qualified historic preservation commission” and to provide for “adequate public participation in the local historic preservation program.” The City’s Historic Preservation Ordinance specifically authorizes the Lawrence Historic Resources Commission (HRC) to testify before the City Commission on any matter affecting historically or architecturally significant properties. The ordinance requires notice to the HRC within five days after receipt of an application for a demolition permit.
The SHPO initially concluded that the demolition would not affect any historical property, but withdrew that determination and later recommended by letter that the City deny the demolition permit because the demolition “will encroach upon, damage or destroy a historic building in the environs of the Douglas County Courthouse, a property listed on the National Register of Historic Places.” The SHPO later wrote a third letter to the City, stating that the demolition “would encroach upon, damage or destroy the environs of the Douglas County Courthouse” and repeated the recommendation that the demolition permit be denied. 14 Kan. App. 2d at 363.
The City subsequently denied the application for the permit. Allen appealed to the district court, which dismissed its appeal from the SHPO’s determination and granted summary judgment to the City on Allen’s appeal from the City’s denial of the permit. 14 Kan. App. 2d at 363-64. Allen appealed to the Court of Appeals, which reversed the district court’s grant of summary judgment to the City and remanded the case to the City for a new hearing on Allen’s application for a demolition permit. 14 Kan. App. 2d at 374. The pertinent rulings of Allen I were: (1) The proponent of a project has the burden to prove no acceptable alternative exists; (2) a potential alternative is not a “relevant factor” unless it is supported by evidence to indicate it is both feasible and prudent; and (3) the proponent does not have to refute a potential alternative unless it is proven to be a “relevant factor.” 14 Kan. App. 2d at 372-74.
This court further held that the City may not require a landowner to provide specific plans for the future use of property after demolition as a precondition for issuing a demolition permit, nor does Kansas law require a landowner to attempt to sell his property and dispel sale as an alternative to demolition before issuing a demolition permit. 14 Kan. App. 2d at 373-74.
Allen, the City, and the SHPO were parties in Allen I. The Lawrence Preservation Alliance, Inc., (LPA) was permitted to file an amicus curiae brief in Allen I.
Immediately after receipt of this court’s opinion in AHen I, Allen’s counsel sent a letter to the City, addressed to Mr. Roger Brown as counsel for the City, which stated in part:
“Allen Realty does not desire any further undue delay, and thus it does not plan to seek review of the decision of the Court of Appeals by the Kansas Supreme Court.
“It is Allen Realty’s intention to proceed as soon as is reasonably possible with a hearing before the City Commission. However, since it has only been a little over one week since the Court of Appeals issued its. decision, Allen Realty has not yet had sufficient opportunity to prepare for such a hearing, and thus it is not in a position to specify the date when it desires that the hearing be placed on the agenda.”
On May 14, 1990, Allen sent a letter to the Lawrence city manager, Mike Wildgen, to “request a hearing before the City Commission on its meeting of May 22, 1990, to discuss our demolition permit request.”
Wildgen sent a letter to Allen two days later, which stated:
“I presented your request of May 14, 1990, to the City Commission. The Commission felt that the next two City Commission agendas will not allow for the placement of this item on either of those agendas. They did schedule your request to discuss the demolition permit for June 12, 1990.”
...The,agenda for the City Commission meeting, including the demolition permit request, was published in the Lawrence Journal World on June 8, 1990, four days before the “discussion” was scheduled. There was no other notice of or communication concerning the demolition item being on the City Commission agenda to either LPA or the SHPO.
On June 6, 1990, Dave Billings,, president of LPA, sent a letter to Wildgen, which stated in part:
“As you are aware, we have been following the progress of the attempt by Allen Realty to obtain a demolition permit for the property.....
“One alternative would be for the LPA to purchase the building, remodel it, then either lease or sell it to a party who will maintain the property. . . .
“We have determined that it is structurally feasible to rehabilitate the building. Now we must determine if it is economically feasible to rehabilitate it. In order to do this we must have access to the building to allow professional persons such as architects and engineers to examine the building. If we could determine a day, with reasonable notice, when this could be done, the building would only need to be accessible for that one day.
“Our request is that the City Commission defer granting a demolition permit for a period of 60 days. This would allow time for us to make a final determination on the economic feasibility of preserving the property.”
On the same day, Billings sent a letter to Allen, which included a copy of the letter from LPA to Wildgen. The letter to Allen stated in part: “Please note that we would like the opportunity to access the building to determine the economical feasibility of preserving it. We would be most appreciative of your cooperation on this matter.” No access was permitted.
The request for the demolition permit was considered at the City Commission meeting on June 12, 1990. One of the commissioners noted that Allen had not submitted any information to the Commission prior to the hearing and stated that the Commission did not have the expertise to review the documentation presented at the meeting and make a decision. The record of the City Commission meeting of June 12, 1990, reveals no participation by the Historic Resources Commission, but does show repeated attempts to refer the matter to the HRC, which were rejected by a majority of the City Commission.
After a general discussion concerning communications regarding the Building and the fact that LPA had requested a 60-day delay, Arley Allen, representing Allen Realty, Inc., was allowed to present information supporting his request for the permit. Allen mentioned a fire department inspection which took place in 1988, summarized three different evaluations of the Building which he hád authorized and contracted for, and presented written copies of the three reports to the Commission. In addition, he presented a series of photographs of the property and the Building. None of the evaluations had been provided to the SHPO or the LPA, or to the City, prior to the meeting.
Highly summarized, the three evaluations by the architectural and engineering firms which had inspected the Building concluded that the Building was in gross disrepair and estimated that the cost of renovation could be as high as $286,000. .
Billings, representing LPA, requested that the Commission not make a decision at that meeting and asked that the Historic Resources Commission be allowed to look at the property and make a recommendation to the Commission. He further requested a 60-day delay in order that LPA be allowed time to review any information received.
By a 3-2 vote, the Commission approved the following motion:
“to find there is no feasible and prudent alternatives to demolition and the manner in which the demolition is to be done includes all possible planning to minimize harm to the Douglas County Courthouse, and to include by reference the reports from Gould-Evans; Latimer, Summer and Associates; and Finney and Tumipse'ed.”
On June 19, 1990, the LPA filed a petition in the district court seeking review of the City’s determination. The Kansas State Historical Society (KSHS) filed a separate petition seeking review of the City’s action. The KSHS petition sought a restraining order to prevent issuance of a demolition permit. KSHS also moved to consolidate its action with the one filed by LPA.
The trial court granted a temporary restraining order on June 29, 1990. The trial court subsequently issued a memorandum decision which set aside the City Commission’s determination and remanded the matter for “a full public hearing.” The court noted that the City failed to give the KSHS copies of the correspondence or adequate notice of the hearing. The court found that the City acted arbitrarily and capriciously in failing to live up to its certified local government agreement with the SHPO to participate in the National Historic Preservation Program and in ignoring the request of the LPA for additional time and access to the facility.
Both Allen and the City appeal the district court’s decision.
HISTORIC PRESERVATION OVERVIEW
The regulation of private property by federal and state preservation programs has been approved by the courts as a valid exercise of the government’s police power. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125, 57 L. Ed. 2d 631, 98 S. Ct. 2646, reh. denied 439 U.S. 883 (1978).
Usually a site, either an individual structure or an entire district, is designated as historically or culturally significant and, thereafter, certain restrictions are placed on the property to preserve it. Under some of the federal preservation laws, a landowner in a proposed historical district may have the option of being included within the district. If the landowner chooses not to be a part of the district, the owner will not be entitled to any of the tax incentives or other benefits which may accrue to those within the district.
In the case before us, the restriction on the use of private property within the “environs” of an individual historic site, without the designation of a historic district, is at issue. Under what conditions and after what process may a landowner demolish a structure which is near a structure on the historical register? What procedures must the decision-making body use before a landowner may demolish or otherwise use the property? Who has standing to require notice, be heard, and appeal?
The statutory basis for the protection of certain property emanates from the Kansas Historical Preservation Act, K.S.A. 75-2715 et seq. K.S.A. 75-2715 states:
“The legislature hereby finds that the historical, architectural, archeological and cultural heritage of Kansas is an important asset of the state and that its preservation and maintenance should be among the highest priorities of government. It is therefore declared to be the public policy and in the public interest of the state to engage in a comprehensive program of historic preservation and to foster and promote the conservation and use of historic property for the education, inspiration, pleasure and enrichment of the citizens of Kansas.”
K.S.A. 75-2724 provides the procedure for determining whether a proposed project by a government entity threatens a historical property and defines the notice to be given. K.S.A. 75-2724(a) states:
“If the state historic preservation officer determines, with or without having been given notice of the proposed project, that such proposed project will encroach upon, damage or destroy any historic property included in the national register of historic places or the state register of historic places or the environs of such property, such project shall not proceed until: (a) The governor, in the case of a project of the state or an instrumentality thereof, or the governing body of the political subdivision, in the case of a project of a political subdivision or an instrumentality thereof, has made a determination, based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from such use and (b) five days’ notice of such determination has been given, by certified mail, to the state historic preservation officer.” (Emphasis added).
Since “project” is defined to include the issuance of a permit to any person by a city, K.S.A. 75-2716(c)(3), the provisions of 75-2724(a) are applicable to the situation here.
K.S.A. 75-2724(b) states in part: “Any person aggrieved by the determination of a governing body pursuant to this section may seek review of such determination in accordance with K.S.A. 60-2101 and amendments thereto.”
Allen I is the only published opinion to consider the substantive provisions of K.S.A. 75-2724. The statute is mentioned but not analyzed in our decision in Linsea v. Board of Chase County Comm’rs, 12 Kan. App. 2d 657, 658, 753 P.2d 1292, rev. denied 243 Kan. 779 (1988), which discussed whether Linsea had standing to pursue an action as an individual after the County Commission had complied with the statute requiring review by the SHPO.
The trial judge’s task, which has now become ours, was to examine the language of K.S.A. 75-2724 and related statutes and offer his judgment as to the meaning and intent of phrases such as “consideration of all relevant factors,” “feasible and prudent alternatives,” and “includes all possible planning to minimize harm,” as they relate to the facts here. Given the limited number of Kansas cases, we must look elsewhere for guidance.
FEDERAL LAW
KSHS notes that a federal statute governing Department of Transportation projects contains provisions which are nearly identical to the crucial portions of K.S.A. 75-2724(a). The federal law provides:
“(a) It is the policy of the United States Government that special effort should be made to preserve the natural beauty of th.e countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.
“(b) The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States, in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of lands crossed by transportation activities or facilities.
“(c) The Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuse, or site) only if—
“(I) there is no prudent and feasible alternative to using that land; and
“(2) the program or project includes all possible planning to minimize harm to the park, recreation, area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303 (1988). (Emphasis added).
An important distinction between the federal act and the Kansas version is that, under the federal act, the administrative officer is empowered, indeed required, to conduct an independent investigation, with experts available to the officer, and to report findings and conclusions. The Kansas Legislature did not provide such assistance and procedure in the Kansas act. Such a requirement might serve the important function of providing an evaluation from an expert hired by neither side. The animus found in this case stems in part from the lack of trust and credibility each side has for the other, including the evaluations from experts. An independent set of experts, hired by neither side, might reduce the level of distrust and speed the decision-making process, as well as avoid the time and expense of lawsuits and appeals.
The federal statute was in existence for more than a decade prior to the enactment of K.S.A. 75-2724. While it is not binding, case law interpreting this federal statute is helpful in resolving the present dispute.
In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 406, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), the United States Supreme Court reviewed a decision by a federal district judge granting summary judgment to the Secretary of the Department of Transportation. In that case, summary judgment was granted based upon affidavits submitted by the parties and without an examination of the administrative record. 401 U.S. at 409. The Court reversed the decision to grant summary judgment and remanded the case “for plenary review of the Secretary’s decision. That review is to be based on the full administrative record that was before the Secretary at the time he made his decision.” 401 U.S. at 420. The Supreme Court also commented:
“But the very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.
“. . . Certainly, the Secretary’s decision is entitled to a presumption of regularity. [Citations omitted.] But that presumption is not to shield his action from a thorough, probing, in-depth review.” 401 U.S. at 412-15.
In Hickory Neighborhood Defense League v. Burnley, 703 F. Supp. 1208, 1219 (W.D.N.C. 1988), modified on other grounds 893 F.2d 58 (4th Cir. 1990), the United States District Court concluded:
“The ultimate question for the Court is whether the agency took a hard look at all relevant factors, and used plain common sense in its determination as to whether the facts before the Secretary support his decision that there is no prudent and feasible alternative to the taking of some 4(f) property in this case for the project.”
See Coalition for Responsible Reg. Dev. v. Coleman, 555 F.2d 398, 400 (4th Cir. 1977).
In Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987), the court characterized the appropriate inquiry as being whether the Secretary gave consideration to the “relevant factors.”
WAS THE CITY’S ACTION ARBITRARY AND CAPRICIOUS?
The standard of review for appeals from administrative action is well-settled:
“ ‘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.’ ” Board of Johnson County Comm'rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986) (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ ¶ 1 and 2, 436 P.2d 828 [1968]).
See D S G Corp. v. Shelor, 239 Kan. 312, 315, 720 P.2d 1039 (1986); K.S.A. 77-621.
In addition, “[o]n review, the district court may find the agency action is invalid if the agency erroneously interpreted or applied the law.” 537721 Ontario, Inc. v. Mays, 14 Kan. App. 2d 1, 2, 780 P.2d 1126, rev. denied 245 Kan. 785 (1989).
Further, we must review this case in light of the statutes which are remedial or designed to protect the public. “Legislation which is remedial in nature is to be liberally construed to effectuate the purpose for which it was enacted. [Citation omitted. ] A statute which is designed to protect the public must be construed in light of the legislative intent and is entitled to broad interpretation.” Gonzales v. Callison, 9 Kan. App. 2d 567, 570, 683 P.2d 454 (1984).
It is well settled that failure to follow statutory mandates constitutes arbitrary and capricious action by an administrative body. In Citizens to Preserve Overton Park, the United States Supreme Court stated:
“Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 401 U.S. at 416. (Emphasis added).
In In re Dept. of Energy Stripper Well Exemption, 520 F. Supp. 1232, 1269 (D. Kan. 1981), rev’d on other grounds 690 F.2d 1375 (Temp. Emerg. Ct. App. 1982), cert. denied 459 U.S. 1127 (1983), the United States District Court for Kansas concluded “that the ‘relevant factor’ test is an integral part of the ‘arbitrary and capricious’ test, and that the record of the administrative decision must affirmatively show consideration of the relevant factors underlying the regulation to sustain that regulation”.
In Benton Franklin Riverfront Trailway v. Lewis, 701 F.2d 784, 788 (9th Cir. 1983), the court concluded that the failure to consider the possible availability of federal funds for rehabilitation or preservation rendered the Secretary’s action arbitrary. The court’s reasoning included:
“The court must ascertain whether the agency took a hard look at all relevant factors and whether the alternatives set forth are sufficient to permit a reasoned choice. We conclude the Secretary acted arbitrarily because he failed to consider all relevant factors.
“We find the Secretary of Transportation acted arbitrarily in concluding there were no feasible and prudent alternatives as the determination only discussed funding by the cities or the appellant. There was no mention of the availability, or not, of federal funds for rehabilitation or preservation.” 701 F.2d at 788-91.
DUE PROCESS
Intertwined in this case is the question of procedural due process. Governmental action must affect a protected constitutional interest before procedural protections apply. Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Certainly a landowner is entitled to the use of his or her property which does not cause a nuisance. Any restriction on the landowner’s use by the government, which results in a disagreement as to that use, would include the landowner and the government entity seeking to restrict or control that use, at any hearing, or in any litigation.
It is not as clear as to which interests of third parties in historic preservation actions ought to receive due process protections. Interested third parties might include adjoining landowners, historic preservation groups, neighborhood associations, or those affected economically by the government or landowner action, wherevei located.
Where the legislature has not addressed the issue of due process, as here, it is often left to the courts, as it was to Judge King, to give meaning and substance to the process and define its boundaries and minimum requirements.
NOTICE
The fundamental due process right of an opportunity to be heard is meaningless unless proper notice allows an interested party to take advantage of that opportunity. Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950).
Mullane requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 339 U.S. at 314.
The notice must “reasonably . . . convey the required information [citation omitted], and it must afford a reasonable time for those interested to make their appearance [citation omitted].” 339 U.S. at 314.
. Mullane involved the settlement by a court of trust accounts. However, the same principles have been applied to cases involving land use. Walker v. Hutchinson City, 352 U.S. 112, 115, 1 L. Ed. 2d 178, 77 S. Ct. 200 (1956).
Although notice of legislative action is usually not required, see Krimendahl v. Common Council, 256 Ind. 191, 198, 267 N.E.2d 547 (1971), when a legislative body sits as an adjudicative body, we agree with Judge King that some written notice ought to- be given to thosé entitled to notice, following the principles in Mullane.
The trial court concluded that K.S.A. 75-2724 and the “local agreement” between the City and KSHS required the City to give special notice of the hearing to LPA and KSHS. On appeal, KSHS and LPA do not argue that the City failed to comply with the notice provisions of K.S.A. 75-2724(a). When examined in isolation, Allen and the City are correct that there was no technical or statutory requirement that KSHS and LPA receive special notice. However, taking the position of Allen and the City ignores the essence of the trial court’s determination and a plain reading of the statute. When the fáílure to give notice is combined with the failure to grant the opponents adequate time and access to explore potential alternatives, added to the lack of opportunity to study the evaluations, the trial court concluded, and wé agree, that no “relevant factors” or “feasible and prudent alternátive” to the request for a demolition permit could possibly have been presented to the City Commission.
The statutory mandates and the rules announced in Allen I, combined with the prohibition against arbitrary and capricious decision-making, support the trial court’s conclusion that .the City acted arbitrarily by failing to inform LPA and KSHS of the. hearing date or failing to continue the hearing for a full airing of relevant factors and feasible and prudent alternatives. Here, LPA learned of the hearing date less than a week before the hearing. In addition, the City and Allen have not challenged the position of KSHS that it first learned of the hearing the day after the hearing was conducted.
Given the unique circumstances here in that both KSHS and LPA had participated in the appeal of Allen 1, the City’s failure to inform them of the new hearing date rendered the City’s action arbitrary and capricious. We agree with the conclusion of the trial court that, under the facts presented and the unique situation involved herein, coupled with our reading of the cases and the statutes, the City’s action can only be classified as arbitrary, unreasonable, and capricious.
HEARING/INSPECTION
The United States Supreme Court, in Board of Regents v. Roth, 408 U.S. at 570 n.7, stated that “some kind of a hearing” is required prior to the deprivation of a protected interest. Given the statutory mandate that the SHPO had an interest, and perhaps LPA did also, then the type and timing of the hearing are important considerations.
The City argues that it could not order Allen to allow access to the Building as directed by the district court’s ruling. The City cites Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967), which the City says states that only a-search warrant, emergency, or consent can authorize an administrative search. The City’s reliance on Camara is misplaced. The City never raised this issue before the trial court and, therefore, it cannot be raised for the first time on appeal. Even if Camara is considered, the rule stated there is not absolute or applicable in all circumstances. It is well settled that, in civil proceedings, a trial court may order a party “to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing or sampling the property.” K.S.A. 1990 Supp. 60-234(a)(2), (b).
It is inherent that, in a process which requires an examination of “all relevant factors” before a conclusion be made that there is “no feasible and prudent alternative,” such access be granted. The issue is not whether the reports of the architects and engineers supplied by Allen are accurate, weighty, and persuasive. The issue is whether there are other relevant factors, such as federal funding or any other matters which might be available, which would allow the City to conclude that an alternative is prudent or would otherwise affect the final decision by the City.
The legislature has determined that historical preservation “should be among the highest priorities of government.” K.S.A. 75-2715. Given this public policy, we conclude, as did the trial court, that it is incumbent upon the City to provide a full and fair hearing to all interested parties, with adequate notice and the opportunity to develop and present relevant information.
LPA’S STANDING
We agree with Allen that the question of LPA’s standing to challenge the City’s action is moot. The Kansas Supreme Court recently stated:
“ ‘A “moot case” has been variously defined. One common definition is that it is a case in which determination of an abstract question is sought when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then-existing controversy.’ [quoting Moore v. Smith, 160 Kan. 167, 170, 160 P.2d 675 (1945)] ....
“ ‘We have frequently said that it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court.’ [quoting Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 871, 494 P.2d 1092, cert. denied 409 U.S. 944 (1972).]” State ex rel. Stephan v. Johnson, 248 Kan. 286, 289-91, 807 P.2d 664 (1991).
KSHS has raised the same issues as LPA. The district court’s decision granted all of the relief requested by LPA and this court’s appellate decision will determine the validity of the claims raised by both KSHS and LPA. The issue of LPA’s standing is ¡moot.
CONCLUSION
We, therefore, conclude that the trial court decision must be affirmed. We agree that the City’s action was arbitrary and capricious given the facts here. The City’s failure to notify KSHS and LPA, coupled with the refusal to grant a continuance, pre vented KSHS and LPA from participating in a meaningful way and deprived them of the opportunity to gather information and study Allen’s evaluations, and, therefore, prevented the City from considering all “relevant factors” as required by K.S.A. 75-2724(a).
The decision of the trial court is affirmed. This matter is remanded to the District Court of Douglas County so that it may order an inspection of the premises by the SHPO or someone acting in his behalf, and/or in conjunction with LPA, if said inspection has not taken place. The court shall then direct the City to schedule a hearing within a reasonable time, with notice by publication and by mail to the SHPO and LPA. | [
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Lewis, J.:
The defendant appeals his jury convictions of two counts of the crime of arson. As a result of the convictions, the defendant was sentenced to two consecutive terms of 5 to 10 years. This sentence was subsequently doubled under the Kansas Habitual Criminal Act to two consecutive terms of 10 to 20 years, for an effective sentence of 20 to 40 years.
The defendant was convicted of setting a fire in 1988 which damaged two homes in the Hawthorne subdivision of Overland Park. He was also convicted of setting a fire in the Westbury subdivision of Overland Park. The evidence indicates that a number of similarities existed between the fires in question. A similar liquid was used to start both fires, and the pouring of the liquid began in the doorways and had a similar pattern. Plastic jugs and tennis shoe prints were found at the scene of each fire.
The fires that the defendant was convicted of setting took place in February and June 1988. In April and July of that year, similar fires were set in Liberty, Missouri, and in Lawson, Missouri.
The defendant was arrested and charged with setting the fires in Kansas as a result of information provided to the authorities by Jesse Kirkland. According to Kirkland, he was with the defendant when the fires were set in Kansas and also at various sites in the State of Missouri. Kirkland insisted that he did not help set the fires but was afraid of the defendant and drove him to the fire scenes. While at the fire scenes, Kirkland advised that he witnessed the defendant set the fires in question. According to Kirkland, the defendant set the fires out of an intense hatred for police. The defendant wore tennis shoes when he started the fires, but always threw away the pair he was wearing to confound the authorities should suspicion fall on him.
As a result of the information provided by Kirkland, the defendant was arrested and charged with arson in Johnson County. The defendant was convicted largely on the testimony of Kirkland and other witnesses who testified concerning fires allegedly set by the defendant in Kansas and Missouri.
The defendant raises a number of issues on appeal.
SPEEDY TRIAL ISSUE
At the time the defendant was charged with setting fires in Johnson County, Kansas, he was in the Missouri State Penitentiary (MSP) as a result of parole violations on a previous sentence. He was also facing arson charges in Jackson County, Missouri.
While in the MSP, the defendant filed speedy trial requests under the Uniform Agreement on Detainers Act, K.S.A. 22-4401 et seq. These requests were filed simultaneously with Kansas and Missouri on November 30, 1989.
The record shows that the defendant’s requests for a speedy trial were received in Kansas and Missouri on December 4, 1989. On December 28, 1989, Missouri had the defendant transported from MSP to the Jackson County jail to stand trial on pending arson charges. On January 18, 1990, Kansas attempted to transport the defendant from MSP to Kansas for trial on the instant charges. Kansas was advised that the defendant was not in MSP but was in the custody of the Missouri officials in Jackson County. On June 6, 1990, Jackson County returned the defendant to MSP. On June 11, 1990, Johnson County officials had the defendant transferred to Kansas to stand trial on the charges currently before this court.
During the preliminary hearing, the defendant moved for a dismissal of the charges on the grounds that Kansas had violated his speedy trial request. He argued that, pursuant to his speedy trial request, Kansas had 180 days from December 4, 1989, to place him on trial. Under this scenario, the defendant submits that the 180-day period expired on June 1, 1990, and that he was entitled to a dismissal of the charges against him. The trial court denied the motion. The defendant argues on appeal that this was error and that Kansas violated his speedy trial rights under the Uniform Agreement on Detainers Act.
K.S.A. 22-4401, Article 111(a) forms the basis of the defendant’s argument and states:
“Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to' the prisoner.” (Emphasis added.)
We agree that more than 180 days elapsed from the date Kansas received the defendant’s speedy trial request to the date it placed him on trial. Dúring most of that time, he was in the custody of Missouri and unavailable to the Kansas authorities. This state of affairs was largely caused by the defendant having filed speedy trial requests with two separate jurisdictions on the same date. The question is whether he can take advantage of this situation and obtain dismissal of the Kansas charges because Kansas was unable to obtain custody of him within 180 days.
This is a question of first impression in this state. There are, however, decisions from other jurisdictions which hold that the defendant’s argument is not tenable. We agree with those decisions.
In State v. Binn, 208 N.J. Super. 443, 506 A.2d 67 (1986), the New Jersey court dealt with a claim identical to the one now before this court. In that case, the defendant was facing charges in several states and filed detainer requests in all of those states on the same day. At the time the State of New Jersey obtained custody of the defendant, the 180 days had run, and the defendant argued that his speedy trial rights had been violated. The New Jersey court rejected this argument, holding:
“It can hardly be suggested that a defendant can request speedy trial in various jurisdictions simultaneously and then complain that his Sixth Amendment rights are violated by the absence of contemporaneous dispositions. Cf. e.g., Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Moreover, while a prisoner’s right to a speedy trial in another jurisdiction is not measured exclusively by the Interstate Agreement on Detainers, [citations omitted] he could not expect contemporaneous dispositions of various charges by simultaneous applications under Article III of the Interstate Agreement. [Citations omitted.] Similarly, a defendant should not be able to evade or delay pending prosecution or proceedings in one state by seeking disposition in another jurisdiction under the Interstate Agreement on Detainers. [Citation omitted.] In any event, the pending proceedings in the ‘sending state’ can be the basis for a continuance or a tolling of the 180 day requirement under Article III; and the continuance, tolling or enlargement of that time period under Article III can only occur ‘in open court, the prisoner or his counsel being present. . . . Citations omitted.] Hence, since the defendant was .not represented in these proceedings before his return to New Jersey, the issue of tolling or enlargement could not have been decided until after defendant was returned here, even though it was more than 180 days after delivery and receipt of the reqqest for final disposition. [Citations omitted.]” 208 N.J. Super, at 449.
In United States v. Mason, 372 F. Supp. 651 (N.D. Ohio 1973), the court dealt with a situation where the defendant, while doing time in Ohio, gave the federal government notice on a detainer. Before the government was able to obtain custody, defendant was transferred to another state to stand trial. The court rejected the defendant’s speedy trial argument, saying:
“Initially the Court agrees with the Government that the time period must be tolled while the defendant was standing trial in Michigan. [Citation omitted.] This appears to be the only logical result, since if a person is standing trial in one state he cannot be expected to be standing trial in another state simultaneously. Therefore, the Court finds that the time was tolled for 148 days from September 11, 1972 to February 6, 1973, in that the defendant was unable to stand trial in this Court.” 372 F. Supp. at 653.
In People v. Garner, 224 Gal. App. 3d 1363, 1372, 274 Cal. Rptr. 298 (1990), the California court, on a similar contention, held:
“Gamer is correct in his position that a prisoner is entitled to simultaneously request speedy dispositions in more than one jurisdiction and that the time limitations are tolled while the prisoner is facing trial in another jurisdiction because the prisoner is unavailable for transfer to another jurisdiction while on trial. [Citation omitted.]”
We adopt the philosophy of the cases cited above. By requesting a speedy trial simultaneously in more than one jurisdiction, a defendant will generally render it impossible for more than one state to bring him to trial within the 180-day time period. In the case now before this court, the Kansas authorities responded to the defendant’s request in a timely fashion. However, initially, the defendant was unavailable because he was in Jackson County as a result of the speedy trial request he had filed in that jurisdiction. In essence, the defendant, by his own maneuvers, made it impossible for Kansas to put him on trial within 180 days of his speedy trial request. If we adopted the defendant’s argument, he would have disposed of the Kansas charges by the simple act of requesting speedy trials in two different states at the same time. This would be an illogical result and would permit a defendant to manipulate the Uniform Agreement on Detainers Act under circumstances never intended. While a defendant has every right to demand a speedy trial on charges lodged against him, he should not be allowed to manipulate the Act and gain dismissal of charges under circumstances where the delay is the result of his own request.
We hold in this case that the speedy trial time period was tolled during the period of time the defendant was in the custody of Jackson County authorities, awaiting trial on charges in that county. This time period would begin to run again when the defendant was returned to MSP on June 6, 1990, and Kansas would have 180 days from that date to place him on trial. The record shows that the defendant was placed on trial well within 180 days of June 6, 1990, and that the trial court did not err in refusing to dismiss the charges.
We are aware that the trial court in this case held that, by requesting simultaneous speedy trials in two states on the same day, the defendant waived his right to a speedy trial under the Act. We think the term “waiver” was misused. While there was no waiver by the defendant of any rights, there was a tolling of the 180-day time frame when Missouri acted on his speedy trial request and he became unavailable to Kansas. Whether it is called “waiver” or “tolling,” the result is the same. The trial court’s action was correct, even though it may have been for the wrong reason. See State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987).
The defendant argues that, since the State of Kansas failed to move for a continuance or failed to raise the tolling issue prior to the running of the 180-day time period, it is barred from doing so. We have examined the record, and this argument was not presented to the trial court. It is well settled that the defendant cannot raise points on appeal which were not presented to the trial court. State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986). It does not appear to us that the defendant has preserved this issue for appeal.
Even assuming this issue was preserved for appeal, it is without merit. As pointed out by State v. Binn, the issue of a continuance under the Act can only be raised in open court with the prisoner or his counsel present. It was not possible for Kansas to raise the issue of a continuance or the tolling issue during the period of time the defendant was in the custody of Missouri. We consider the arguments made by the State of Kansas at the defendant’s preliminary hearing to be the equivalent of raising the issue of a continuance or the issue of the tolling of the statute. This was done at the earliest possible opportunity, and we hold that Kansas did not forfeit the right to raise this issue by failing to do so during the original 180-day period since the defendant was not available in open court.
The defendant also argues that the Kansas detainer should have been disposed of first since it was an interstate request. We consider this issue to be without merit. It is not possible for us to consider this argument in a vacuum. By the time Kansas responded to the defendant’s request, he was already transferred from MSP to the county jail in Jackson County. We have already established that, while the defendant was being held for trial by Missouri, he was not available to the State of Kansas. At this point, we cannot discern when, where, or how the issue of priority between Kansas and Missouri could have been decided. Missouri had custody of the defendant and was preparing to put him on trial. Any issue of priority between the two states is moot at this point.
We dispose of this issue by holding that the 180-day time period was tolled during the time the defendant was in the custody of Missouri. This result and our analysis in reaching it is analogous to the decisions concerning the Kansas speedy trial statute, K.S.A. 22-3402. According to that statute, if a delay in the speedy trial period is a result of the defendant’s actions, then the delay is chargeable to the defendant, and the length and time of the delay is not counted in calculating when the time period has run. See State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990); State v. Bean, 236 Kan. 389, Syl. ¶ 2, 691 P.2d 30 (1984); State v. McQuillen, 236 Kan. 161, Syl. ¶ 2, 689 P.2d 822 (1984); K.S.A. 22-3402.
Based on these Kansas cases, the reason for the delay was the defendant’s request that Missouri place him on trial. As a result, the defendant should be held accountable for the delay and the disposition of the Johnson County charges.
K.S.A. 60-455 ISSUE
At the defendant’s trial, six witnesses were called by the State of Kansas whose testimony concerned fires that were set by the defendant in the State of Missouri. The defendant objected to the admission of testimony of prior crimes. The defendant contends that the State’s calling witnesses to testify about the Missouri fires violated K.S.A. 60-455 because their testimony failed to meet the three-prong test for admitting evidence concerning the commission of prior crimes or civil wrongs.
In determining if the trial court erred in admitting evidence in violation of K.S.A. 60-455, the standard of review is abuse of discretion:
“A ruling on the admissibility of other crimes evidence pursuant to K.S.A. 60-455 is within the discretion of the trial court. The trial court’s ruling will not be interfered with on review unless that discretion was abused or unless the trial judge admitted evidence that clearly had no bearing on any of the issues.” State v. Searles, 246 Kan. 567, Syl. ¶ 2, 793 P.2d 724 (1990).
Discretion is abused when no reasonable person would adopt the position of the trial court. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
K.S.A. 60-455 prohibits the admission of evidence that a person committed a crime or civil wrong on a specified occasion for the purpose of proving that he committed another crime or civil wrong on another occasion. However, that statute does permit the admission of such evidence when relevant “to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake- or accident.”
In applying K.S.A. 60-455, a three-prong test has been developed. This test was first developed in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). In that case, the court held that, to admit evidence under K.S.A. 60-455, the trial court must find that the evidence being offered is (1) relevant to prove one of the facts specified in the statute; (2) that the fact is a disputed, material fact; and (3) balance the probative ■ value of the prior crime or civil wrong evidence against its tendency to prejudice the jury. 215 Kan. at 175-76. This test has become the rule with regard to K.S.A. 60-455 evidence. See State v. Searles, 246 Kan. at 577; State v. Graham, 244 Kan. 194, 196, 768 P.2d 259 (1989); State v. Clements, 241 Kan. 77, 84, 734 P.2d 1096.(1987); State v. Breazeale, 238 Kan. 714, Syl. ¶ 1, 714 P.2d 1356. (1986).
We have examined the record in this case and have applied the three prongs of the test cited above. In doing so, we conclude that the trial court did not abuse its discretion in permitting the State’s witnesses to testify about the Missouri fires and in admitting other evidence of those fires. In this case, the stated reason for use of the evidence of Missouri fires was to prove identity. In State v. Bly, the court set out specific requirements that must be met to prove identity:
“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. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802:
‘ “The quality of sameness is important when pondering the admission of other crimes to prove identity.” ’ (p. 294) (Emphasis supplied.)” 215 Kan. at 177.
In the instant matter, the evidence presented by the State complies with the requirements of Bly and similar cases. The evidence is relevant because identity of the defendant was an element of proving he committed the crimes. The defendant pled not guilty to the charges, which placed in issue all disputed material facts, including his identity. Due to the defendant’s plea of not guilty, the State was required to prove that it was the defendant who set the fires in question.
The evidence introduced to prove identity meets the test for sameness. In the instant matter, the fire in the Camelot subdivision in Missouri was nearly identical to the fires in Kansas. The structures set fire to were homes under construction. The fires were all set in the early morning hours and were all started with a flammable liquid that was poured inside the front door on the first floor and splashed onto the walls. In both cases, the flammable liquid was carried in plastic jugs, and tennis shoe prints were found in the area. The fire in Missouri at Shepherd’s Implement Co. was different only to the extent that Shepherd’s was not a home under construction. Otherwise, the pattern of the fire at Shepherd’s was the same as the fires in Kansas and at the Camelot subdivision in Missouri.
Finally, we conclude that the probative value of the evidence outweighs the prejudice. Although we agree there is some prejudice to a defendant under these circumstances, some prejudice is inherent in the proper admission of prior crimes. However, we cannot say that the evidence was so prejudicial as to outweigh its probative value.
The defendant argues that there were so many witnesses testifying about the two fires in Missouri that the evidence was cumulative and became prejudicial. In State v. Breazeale and State v. Searles, our Supreme Court held that, as long as the evidence went to the material issue in dispute, the fact that it was cumulative was not significant. State v. Searles, 246 Kan. at 579; State v. Breazeale, 238 Kan. at 723.
ABSENCE OF K.S.A. 60-455 HEARING
In connection with the argument made above, the defendant contends that the trial court erred in admitting the 60-455 evi dence without holding a hearing prior to trial out of the presence of the jury.
The defendant is correct in arguing that a pretrial hearing of some sort is required to determine the admissibility of evidence under K.S.A. 60-455. State v. Breazeale, 238 Kan. at 723; State v. Bly, 215 Kan. at 176. However, under the circumstances of the instant matter, the argument of the defendant is not grounds for reversal.
In this case, there was a preliminary hearing in which the judge heard arguments on the admissibility of the evidence outside of the presence of a jury. The judge admitted the evidence at the preliminary hearing. At the trial, although the trial judge was not the same, the trial judge was familiar with the motion and the testimony to be presented and based his rule as to admissibility on the ruling at the preliminary hearing.
Even if we were to assume that the trial court erred in not holding an independent hearing, we conclude any such error was harmless. K.S.A. 60-261 states that erroneous admissions of evidence will not be grounds for reversal if the error was harmless. An error is considered harmless if it does not affirmatively appear to have prejudicially affected the substantial rights of the defendant. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). In the instant matter, we have already determined that the evidence was properly admitted. As a result, any error in not holding a pretrial hearing is, at best, harmless.
APPLICATION OF HABITUAL CRIMINAL ACT
Finally, the defendant argues that the evidence submitted by the State of Kansas was not sufficient to justify the imposition of the Kansas Habitual Criminal Act. On this issue, we agree with the defendant’s contentions.
Generally, proof of prior felony convictions to invoke the Habitual Criminal Act is made by using certified or authenticated copies of the journal entries of convictions from other states or counties. This is the best possible evidence of a prior felony conviction and would include all of the necessary facts required to be shown by K.S.A. 22-3426. In this case, evidence of that kind was not used. In attempting to prove the defendant’s prior criminal convictions, the State utilized the following evidence: (1) The testimony of the writer of the presentence investigation report, who testified that the defendant told her he had been incarcerated in the State of Missouri for approximately 23 years; (2) the testimony of a deputy sheriff of Johnson County, who testified that he picked up the defendant at the MSP; and (3) a certified document from the Missouri Department of Corrections and Human Resources showing the bare bones of the defendant’s convictions in the State of Missouri. This document might be better described as a Missouri “rap sheet,” showing the defendant’s criminal activity in that state.
We have reviewed the evidence submitted and find it lacking in several respects. It is lacking in facts and details, which we should expect to be present in evidence that is used to double a defendant’s sentence from 10 to 20 years to 20 to 40 years.
In Kansas, the statute in question merely requires competent evidence of the prior convictions. State v. Crispin, 234 Kan. 104, 671 P.2d 502 (1983); State v. Crichton, 13 Kan. App. 2d 213, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989). This court has specifically held that information provided to the presentence investigation report writer is not sufficient competent evidence to justify the imposition of the Habitual Criminal Act:
“The record in this case discloses that the State had not been able to obtain documentary evidence of a prior federal felony conviction for interstate transportation of forged securities at the time of sentencing. The trial court did not want to grant a continuance. Therefore, the State put Mr. Witham, the presentence investigator assigned to this case, on the stand to testify regarding the defendant’s previous felony convictions. He testified to the effect that defendant admitted to 7 or 8 prior convictions, including the federal felony for forged securities which the State had given defendant notice it would use to impose the Habitual Criminal Act. There was no evidence to confirm this testimony nor was there any showing that the defendant had been represented by counsel at the time of the federal conviction.
“However, we are constrained to hold that Mr. Witham’s testimony did not constitute sufficient competent evidence under K.S.A. 1984 Supp. 21-4504(e) and the authorities cited above. A presentence investigation report is prepared to help the trial judge determine an appropriate sentence. It is not prepared to discover prior convictions for enhancement purposes. Here, neither the defendant nor his counsel admitted in court to any prior felony convictions. It should also be noted that there was no evidence of any kind produced to corroborate the statement made to the court services office and there was no affirmative showing that defendant had been represented by counsel at the time of the claimed felony conviction as is required by State v. Duke, 205 Kan. 37, Syl. ¶ 3.” State v. Hicks, 11 Kan. App. 2d 76, 87-89, 714 P.2d 105 (1986).
Accordingly, the testimony of the writer of the presentence investigation report in this case was not sufficient competent evidence to prove that the defendant had been convicted of a prior felony.
The certified rap sheet from the State of Missouri does show that the defendant was convicted of first-degree murder on January 4, 1969, in Barr County, Missouri. It shows nothing more about that conviction. In State v. Duke, 205 Kan. 37, 468 P.2d 132 (1970), the Supreme Court held, at Syl. ¶ 3:
“A record of prior felony conviction which is silent or ambiguous concerning the presence of counsel or the valid waiver thereof is presumptively void, and it alone cannot form the basis for establishing a valid conviction as an element of K.S.A. 21-2611 or for imposing enhanced punishment under the habitual criminal act (K.S.A. 21-107a).”
We have reviewed the evidence submitted by the State of Kansas to impose the Habitual Criminal Act. There is nothing in the evidence submitted concerning the presence of counsel or the valid waiver of counsel by the defendant. As established by State v. Duke, cited above, the conviction as shown by the evidence is presumptively void. As a result, on the basis of State v. Duke, the evidence is insufficient for imposing enhanced punishment under the Habitual Criminal Act. As a result, we reverse and remand this case for resentencing of the defendant.
We point out that K.S.A. 22-3426 provides as follows:
“(d) If the sentence is increased because defendant previously has been convicted of one or more felonies the record shall contain a statement of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions. Defendant shall not be required to furnish such evidence.” (Emphasis added.)
In this case, the journal entry reflecting the sentencing of the defendant under the Habitual Criminal Act does not contain the information required by K.S.A. 22-3426. On remand, if the defendant is resentenced under the Habitual Criminal Act, the journal entry of resentencing shall set forth the information required by K.S.A. 22-3426.
The defendant’s sentence under the Habitual Criminal Act is vacated, and the matter is remanded for resentencing of the defendant consistent with this opinion.
Affirmed in part, reversed in part, and remanded. | [
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Rulon, J.:
Angela Wilson-Cunningham, et al., plaintiffs, appeal the district court’s grant of summary judgment to Patricia A. Meyer, Roger L. Gossard, and Becker, Hildreth, Gossard, Hasseñplug, Abel and Kritz, P.A., in a legal malpractice action.
Essentially we must decide if plaintiffs have a cause of action either in tort or contract against defendants. For the reasons detailed below, we affirm the district court’s grant of summary judgment.
FACTUAL HISTORY
The material facts of this case are undisputed and are as follows; This action for legal malpractice arises from a 1987 divorce proceeding between Charles and Anita Wilson. Anita retained Roger Gossard to represent her in the divorce, and Charles retained Patricia Meyer (now Patricia Bouziden) to represent him.
A divorce hearing was held on November 5, 1987. Charles and Anita each testified that while they had nearly reached a property settlement agreement, they had not yet agreed on the division of certain items of personal property, primarily household items. Each agreed that he or she would prepare a list of these items that he or she desired. If they could not agree on the division, they would present the matter to the district court for resolution: Neither Charles nor Anita foresaw a problem in dividing this property.
After hearing the evidence and being fully advised, the district court granted the parties a divorce; approved the parties’ stipulations as to property division, maintenance, and child custody and support; and ordered Gossard to prepare a decree of divorce. The court further ordered that if the parties could not reach agreement as to final division of household items, the court would order a division at a later date.
On November 11, 1987, Anita sent her list of household items to Gossard, who received it on November 12 or 13, 1987. Gossard then forwarded this list to Meyer on November 17, 1987, along with a proposed decree of divorce. He requested that Meyer approve the decree and return it to him for filing. Meyer returned the decree to Gossard by mail dated November 23, 1987, the Monday before the Thanksgiving holiday. Gossard took the decree to the district court clerk for filing on December 1, 1987, but the decree was not filed until December 4, 1987, at 9:00 a.m. Charles Wilson died intestate December 4, 1987, at 12:16 a.m.
Anita subsequently moved the district court, under the provisions of K.S.A. 60-260, for relief from the decree of divorce filed December 4, 1987. Ultimately, the district court granted the requested relief on the ground the divorce decree was ineffective to terminate the marriage because the decree was filed after Charles’ death. Our Supreme Court affirmed this ruling. In re Marriage of Wilson, 245 Kan. 178, 777 P.2d 773 (1989).
On December 4, 1989, the children of Charles who were not of his marriage to Anita filed a petition against the defendants, claiming: (1) because the divorce decree was not timely filed, Anita received a spousal share from Charles’ intestate estate and joint tenancy property valued at nearly $580,000; (2) consequently, plaintiffs received a smaller share of Charles’ estate; (3) the defendants were negligent per se because they breached a duty to timely file the decree pursuant to K.S.A. 60-258, K.S.A. 60-2702a, and Supreme Court Rule 170 (1990 Kan. Ct. R. Annot. 123); (4) Meyer did not represent Charles with' the reasonable and ordinary skill of a legal practitioner; (5) individual defendants breached their contractual duties owed to Charles and plaintiffs as third-party beneficiaries by failing to timely file the divorce decree; (6) Meyer breached her contractual duty to represent plaintiffs; and (7) Gossard and his firm breached their delegated duty to timely file the divorce decree.
The plaintiffs and defendants eventually filed motions for summary judgment, all agreeing no material factual issues were in dispute. In addition to the above undisputed facts, the district court found: Anita through intestate succession and joint tenancy received property worth at least $613,219; the remainder of Charles’ estate equaled nearly $68,143; and if the divorce had been final at Charles’ death, his probate estate would have been $530,646.
The district court then granted summary judgment to defendants, concluding: (1) There existed no issues as to any material facts; (2) whether an attorney erred is a question of law in a legal malpractice action; (3) the defendants’ failure to file the divorce decree within the time limits prescribed by Supreme Court Rule 170 was not negligence per se; (4) the delay in filing the decree of divorce was not legal malpractice, because under the facts of this case, the parties did not reach an agreement as to disposition of all personalty at the divorce hearing; (5) no attorney-client relationship existed between Meyer and plaintiffs; (6) no privity of contract existed between Meyer and plaintiffs; (7) there was no showing that Meyer’s claimed negligence or omissions proximately caused harm to plaintiffs; (8) no privity of contract existed between Gossard and plaintiffs; (9) an attorney is not liable to a client’s adversary for negligence or breach of contract; and (10) under the test enunciated in Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), Meyer and Gossard owed the plaintiffs no duty in their representation of Charles and Anita.
ACTION IN TORT
Plaintiffs argue to us the defendants are liable to them for their affirmative acts or omissions in representing Charles and Anita during the couple’s divorce under the test adopted by our Supreme Court in Pizel, 247 Kan. 54. Necessarily, plaintiffs argue each factor of the Pizel test weighs favorably toward a conclusion that defendants owed plaintiffs a duty in the representation of Charles and Anita in the divorce action.
Defendant Meyer claims when the Pizel test is applied to her in representation of Charles, there is no legal duty flowing from her to the plaintiffs. Meyer contends the divorce action was not intended to benefit plaintiffs. However, if it was intended to benefit plaintiffs, any harm caused to them by her acts or omissions was unforeseeable. Finally, Meyer urges that if plaintiffs’ claim is permitted, an unfair burden would be placed on the legal profession.
Defendant Gossard argues that he had no duty to Charles or plaintiffs because he contracted to represent Anita. He also asserts the divorce action was not intended to benefit plaintiffs and that imposing liability under these circumstances would place an unwarranted burden .on legal practitioners.
In granting summary judgment to the defendants, the district court essentially agreed with their contentions as stated above.
As we have often stated, the rules of summary judgment are well established:
“A moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light most favorable to the nonmoving party.” Crooks v. Greene, 12 Kan. App. 2d 62, Syl. ¶ 1, 736 P.2d 78 (1987).
"The plain language of K.S.A. 1987 Supp. 60-256(cj mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the. existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to. make a sufficient showing on an essential element of its case, with respect to which it has the burden of proof.” Heinsohn v. Motley, 13 Kan. App. 2d 66, Syl. ¶ 1, 761 P.2d 796 (1988).
In an action for negligence, the existence of a duty, to the plaintiff by the defendant is an essential element of the plaintiff s case. Consequently, if the plaintiffs here failed to show that Meyer and Gossard owed them a duty, the grant of summary, judgment was proper. In determining whether the grant of summary judgment was proper, we do not need to reach the issue of whether Meyer and Gossard wére negligent in their representation of Charles and Anita. We need to determine only whether Meyer and Gossard owed the plaintiffs a duty.
In' Pizel, our. Supreme Court considered whether a nonclient may sué an attorney in tort for the attorney’s conduct in representing a client or, in other words, whether the nonclient could recover under a legál duty owed directly to the nonclient by the attorney. Attorney Whalen was sued by the potential beneficiaries of a failed intér vivos trust for legal malpractice in work done for the trust settlor in amending the trust agreement and advising the settlor about the requirements and operation of a trhst. 247 Kan. at 57-58.- After the settlor’s death, the trust had been invalidated because the settlor lacked present trust intent when establishing the trust. 247 Kan. at 58. The jury found Whalen at fault, although it also found that Whalen did not breach his contract with the settlor and that the plaintiffs were not third-party beneficiaries of that attorney-client contract. 247 Kan. at 64.
The Pizel court, in concluding Whalen owed a duty in tort to the intended beneficiaries of the failed trust despite a lack of contractual privity, adopted a multi-criteria balancing test developed by the California Supreme Court. The court noted.this test is “closely related to- the analysis and policy reasons used ;to justify permitting a third-party beneficiary to recover in a contract action!” 247 Kan. at 64. The six criteria of the test are as follows:
(1) The’ extént to which the transaction was intended to affect the plaintiffs.
(2), The foreseeability of .harm to the plaintiffs.
(3) The degree of certainty that the plaintiffs suffered injury.
(4) The closeness of the connection between the attorney’s conduct and the injury.
(5) The policy of preventing future harm.
(6) The burden on the profession of the recognition of liability under the circumstances. 247 Kan. at 67-68.
Applying the above criteria to the facts in Pizel, the court concluded that under the terms of the failed trust, the plaintiffs were the intended beneficiaries of the trust. The harm to the beneficiaries was also foreseeable because if the trust failed, the property which was the res of the trust would not pass as intended by the trust’s terms. It was also certain the beneficiaries suffered injury from the trust’s failure because the property which was to be the res instead passed through the residuary clause of the settlor’s will. 247 Kan. at 67. There was a close connection between attorney Whalen’s conduct and the beneficiaries’ injury because Whalen drafted an amendment to the trust adding a trustee and acted as an attorney for the settlor for several years while the trust was supposedly in operation. As for the policy of preventing future harm, the court concluded if the beneficiaries were not allowed to pursue a negligence claim against Whalen, they would have no avenue of recovery. Finally, the court determined that the legal profession would not be unduly burdened by requiring a lawyer to act in a reasonably competent manner in the representation of his or her clients. 247 Kan. at 68.
Applying the multi-criteria Pizel test to the facts in the present case, we conclude plaintiffs have no cause of action in tort against defendants.
The first factor is the extent to which the transaction, Charles’ and Anita’s divorce, was intended to affect the plaintiffs. The plaintiffs argue that Charles intended to dispose of his property upon his death through intestate succession. Because the divorce decree would sever his marriage to Anita as well as award him certain property free and clear of any claim by Anita, the plaintiffs further argue that Charles intended that his divorce and accompanying property settlement increase the size of what would be his intestate estate. Charles therefore intended the divorce to affect the plaintiffs, who as his heirs apparent would receive a greater inheritance at his death.
On the facts of this case, it is difficult to understand how a divorce could be intended to benefit the heirs apparent of one of the divorcing parties. The purpose of a divorce is to sever a marital relationship, determine respective rights to the marital property, and provide for spousal maintenance and the support and custody of any minor children of the marriage. The California Court of Appeals essentially found that a divorce action is not intended to aifect the children of the divorcing parties when considering the first factor of the multi-criteria test in Haldane v. Freedman, 204 Cal. App. 2d 475, 22 Cal. Rptr. 445 (1962). In that case, the children of a divorced couple attempted to sue the attorneys who represented their mother during the divorce. They claimed inter alia that the attorneys’ negligence in that action caused the wasting of their mother’s estate, thereby destroying the estate they could reasonably expect to inherit from her. 204 Cal. App. 2d at 477. The court applied a multi-criteria test similar to that adopted in Pizel to determine whether the children should be allowed to proceed with their negligence claim. In considering the extent to which the divorce was intended to affect the plaintiffs, the court concluded “[i]f the.plaintiffs were affected by the divorce proceedings alleged in the complaint, the impact thereof upon them was not actionable.’.’ 204 Cal. App. 2d at 479.
Further, there is no indication in the record that Charles intended to use his divorce as an estate planning device. Unquestionably, any property settlement with Anita from the divorce would affect any estate he would devise or that would pass through intestate succession. However, this was merely an incidental effect of the divorce. Charles’ intent in pursuing a divorce from Anita was to sever the marital relationship and property ownership he shared with Anita. From our review of the record, Charles did not articulate an intent that the divorce action should have any effect on the plaintiffs.
Plaintiffs next argue that the harm caused to them was foreseeable simply because it was foreseeable that Charles could die before the decree was filed. Consequently, because defendants knew that Charles had children who would be his heirs, it was foreseeable that his death prior to the finalization of the.divorce would financially harm those heirs. As noted above, however, a divorce action is not usually intended to affect anyone other than the parties seeking the divorce and their minor children in matters of custody and support. Again, we see no indication that Charles intended to use the divorce and its accompanying prop erty settlement as a device to plan his estate, whether it be testate or intestate. Harm to any share the plaintiffs might receive from Charles’ estate was therefore certainly not foreseeable. Stated another way, it was not foreseeable that action by the attorneys in the dissolution of the marriage between Charles and Anita would harm the plaintiffs. The plaintiffs were not parties intended to be affected by the divorce.
As for the degree of certainty that the plaintiffs suffered injury, they argue the value of the property they would have received from Charles’ estate had he been divorced at his death is certain and calculable. However, there is no certainty that thé plaintiffs suffered any financial injury from the attorneys’ alleged negligence in filing the divorce decree. Charles died intestate. The plaintiffs’ interests in this intestate estate at the time of the defendants’ alleged negligence were merely speculative. If Charles survived until after the divorce was effective, the shares claimed by the plaintiffs could have been decreased or eliminated by Charles executing a will or transferring ownership of his assets. These considerations also weaken the connection between the defendants’ conduct and the plaintiffs’ alleged injury, the fourth factor of the Pixel multi-criteria test. While the plaintiffs received smaller intestate shares because Charles was still married at the time of his death,' they could also have received smaller shares due to inter vivos transfers or the execution of a will by Charles.
The plaintiffs’ argument that the policy of preventing future harm would be enhanced by allowing them to pursue their claim centers on their argument that the harm to their interests by defendants’ alleged negligence was foreseeable. As discussed earlier, however, harm to these plaintiffs from actions or omissions in Charles’ and Anita’s divorce was not foreseeable. Allowing individuals to whom there was no foreseeable risk of harm to bring an action for negligence would not prevent future harm to individuals to whom there is a foreseeable risk for negligent representation.
Finally, the burden on the legal profession resulting from the recognition of liability under these particular circumstances would be unreasonable. Charles and Anita retained the defendants to represent them for the purpose of obtaining a divorce and an agreement on property, maintenance, and child support and cus tody issues. Clearly Charles did not intend his divorce action to affect, either beneficially or detrimentally, the plaintiffs. The attorneys’ duty in this instance was not to represent whatever future interests the plaintiffs might have had in Charles’ estate. To conclude that attorneys in situations like the one here presented owe a legal duty to divorcing parties’ adult children could also create conflict-of-interest problems. See Pelham v. Griesheimer, 92 Ill. 2d 13, 21, 440 N.E.2d 96 (1982). The children’s possible interests in a sizable intestate estate of a deceased parent could easily clash with the parent’s present interest in reaching agreement on property and maintenance issues in the divorce. If an attorney must be concerned with the former, his or her effectiveness in representing the latter could be compromised. An attorney representing a client in a divorce should not suffer such a burden.
In summary, the defendants should not be found to owe a legal duty to the plaintiffs for actions taken or not taken in their father’s divorce. Although a weighing of each factor in the Pizel multicriteria test supports our conclusion, we believe the factor that the divorce was not intended to affect the plaintiffs is the most persuasive. While our reading of Pizel is that all six factors must be considered and none can be deemed conclusive, we believe it would be appropriate to deny liability solely on the basis that the legal representation in the divorce action was not intended to benefit Charles’ children. Cases where attorneys have been found liable to nonclients under the multi-criteria test do seem to place greater emphasis on this factor. Note, Liability of an Attorney to Third Party Beneficiaries for Legal Malpractice in Kansas: The Death of Privity, 30 Washburn L.J. 501, 520 (1991).
ACTION IN CONTRACT
The plaintiffs argue that defendant Meyer, as Charles’ retained attorney, owed a contractual duty to Charles to see that the divorce decree was timely filed. Because Meyer failed in this duty, she is liable for breach of contract. The plaintiffs then argue that Meyer delegated her duty to timely file the decree to defendant Gossard; Gossard thus entered into an agency contract with Charles. Acording to plaintiffs, Gossard, as Charles’ agent, also failed in his duty to Charles to see that the decree was timely filed.
The district court found no contractual relationship between Meyer and the plaintiffs, and also concluded that because defendant Gossard represented Anita in the divorce, only Anita could sue defendant Gossard for breach of contract.
The plaintiffs, while arguing that contracts existed between Charles and the defendants, fail in the necessary next step of establishing their claim for breach of contract against the defendants, that of showing they may enforce the contracts as third-party beneficiaries. It is well established that where a person makes a promise to another for the benefit of a third person, that third person may maintain an action to enforce the contract even though he or she possessed no knowledge of the contract when made and provided no part of the consideration. Cornwell v. Jespersen, 238 Kan. 110, 115, 708 P.2d 515 (1985). The plaintiffs, as part of their arguments in support of a cause of action in tort, do argue that Charles intended his divorce to benefit them as his heirs. However, as discussed earlier, Charles’ and Anita’s divorce was not intended to affect the plaintiffs. Only third parties intended to benefit from the contract can enforce the contract as third-party beneficiaries. 238 Kan. at 115; Noller v. General Motors Corp., 13 Kan. App. 2d 13, 21-24, 760 P.2d 688 (1988), aff'd in part, rev’d in part 244 Kan. 612, 772 P.2d 271 (1989).
Viewing the plaintiffs’ status in relation to the Charles-Meyer contract in the most favorable light indicates that the plaintiffs would possibly be only incidental beneficiaries to the contract. This class of beneficiary receives benefits from a "contract which are merely incidental to and not intended by the contract’s performance; an incidental beneficiary cannot enforce the contract for his or her benefit. 238 Kan. at 115. It is possible that if Charles had been divorced at the time of his death, the plaintiffs would have received larger shares of his estate due to the absence of any claim by Anita to property in which Charles had an interest. But such a benefit would only be an incident of the divorce, and thus only an incident of Meyer’s representation of Charles in the divorce.
Assuming that Gossard and Charles did have a contractual relationship because Gossard was Charles’ agent for the purpose of filing the decree, the analysis applied to the plaintiffs’ status in relation to the Charles-Meyer contract leads to the same conclusion. As the divorce was not intended to affect the plaintiffs, the plaintiffs could not have been intended beneficiaries of any contract entered into by Charles in pursuance of the divorce. Plaintiffs therefore cannot enforce any contract which may or may not have existed between Charles and Gossard. The district court’s award of summary judgment to the defendants on the plaintiffs’ breach of contract claims is, affirmed.
In light of the above, we have considered, but need not reach, the other issues presented.
Affirmed. | [
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Davis, J.:
The defendants, Rhonda B. Moore and Michael L. Moore, appeal the denial of their motions to withdraw their guilty pleas, contending that the court erred by (1) accepting the pleas without complying with the provisions of K.S.A. 22-3210 and (2) by denying their motions to withdraw. We agree that the court failed to comply with the statutory requirements of K.S.A. 22-3210. We therefore reverse the convictions, vacate the pleas, and remand for trial.
K.S.A. 22-3210 provides:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.”
In this case, the pleas were entered in open court, and there was sufficient information in the record for the trial court to conclude that there was a factual basis for the pleas. However, the court did not inform the defendants of the consequences of the pleas in open court on the record, nor did the court personally address the defendants and determine that the pleas were made voluntarily with understanding of the nature of the charges and the consequences of the pleas.
The State argues that, even though the court did not strictly comply with the statutory requirements, we may, based upon the entire record, conclude that the error is harmless because the pleas were knowingly and voluntarily made. Trotter v. State, 218 Kan. 266, 269, 543 P.2d 1023 (1975).
The United States Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), sets forth the minimal constitutional due process requirements which must be met when a court accepts a guilty plea. Our Supreme Court has consistently recognized that K.S.A. 22-3210 embodies the due process requirements set forth in Boykin. Compliance with the statute insures that a defendant’s constitutional rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution have been protected. State v. Browning, 245 Kan. 26, 774 P.2d 935 (1989).
The State relies upon two cases to advance its contention that strict compliance with K.S.A. 22-3210 is not required as long as there is substantial compliance and the court is satisfied that the pleas were voluntarily and knowingly made. Noble v. State, 240 Kan. 162, 163, 727 P.2d 473 (1986); Trotter v. State, 218 Kan. at 269. In both cases, the court concluded that the deficiencies were not critical because the purpose of the statute was served. See 240 Kan. at 165; 218 Kan. at 269-70. Based upon the record in each case, the court was able to conclude that all requirements of the statute had in fact been met. Yet, Noble strongly recommended that records in such cases should affirmatively show that K.S.A. 22-3210 is complied with to establish that a plea is voluntarily and knowingly entered. 240 Kan. at 165.
In the more recent case of State v. Browning, 245 Kan. 26, the defendant appealed from a denial of his motion to withdraw a plea of guilty to second-degree murder and forgery for failure of the trial court to satisfy the requirements of K.S.A. 22-3210. The court reversed on other grounds and did not reach the issue. Yet, it is significant that the Supreme Court commented at length on this issue “in order to share our views with the trial bench, prosecutors, and the criminal defense bar.” 245 Kan. at 34.
It is helpful in this case to echo those views in resolving this case:
“In Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), the United States Supreme Court said:
‘Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. [Citation omitted.] Second, is the right to trial by jury. [Citation omitted.] Third, is the right to confront one’s accusers. [Citation omitted.] We cannot presume a waiver of these three important federal rights from a silent record. ’
“In Trotter v. State, 218 Kan. 266, 268, 543 P.2d 1023 (1975), this court, said that K.S.A. 22-3210 was drafted to embody the requirements of due process as established in Boykin. In Trotter we said that, álthough we did not approve of anything but strict compliance with the statute, not every deviation requires reversal. ‘If upon review of the entire record it can be determined that the pleas of guilty were knowingly and voluntarily made, the error resulting from failure to comply, strictly with K.S.A. 22-3210 is harmless.’ 218 Kan. at 269.
“In Noble v. State, 240 Kan. 162, 727 P.2d 473 (1986), we reiterated the rule that K.S.A. 22-3210 need not be strictly complied with where the purpose of the statute is served. Noble contended that the trial court had failed to determine that his plea was made voluntarily and with an understanding of the nature of the charges and the. consequences of the plea. This court found that Noble’s argument had no merit. When the transcript of Noble’s plea hearing (240 Kan. at 165-67) is compared to the transcript of the hearing in Browning’s case, a difference is observed. The Noble trial court asked Noble a number of specific and detailed questions. '
“Browning argues that the acknowledgment form cannot substitute for personal inquiry of the defendant as contemplated by K.S.A. 22-3210. In United States v. Del Prete, 567 F.2d 928 (9th Cir. 1978), the Ninth Circuit Court of Appeals discussed the requirements of Rule 11 of the Federal Rules of Criminal Procedure, which is the federal statutory equivalent to K.S.A. 22-3210:
‘Requesting a defendant to review and sign a written document setting forth the advice required by rule 11(c) is a proper procedure that may be of substantial assistance to the defendant in understanding the consequences of his plea, but it is emphatically not a substitute for the clear dictates of the rule which requires that the trial judge address the defendant in open court as to each of such matters.’ (Emphasis added.) 567 F.2d at 930. “Browning also cites State v. Fluhr, 287 N.W.2d 857 (Iowa 1980). The Iowa statute is similar to that of Kansas. The Iowa Supreme Court stated:
‘The record provides no evidence of an elicitation from defendant of his understanding of his particular constitutional rights, other than the right to a jury trial, or the penal consequences of the plea. Nor' is he shown to have adequately understood the nature of the charge. Nor was there sufficient inquiry into his comprehension of parts of the written plea form from which a compelling inference of understanding of the entire form might be drawn. Under these circumstances, we conclude substantial compliance with the rule was not achieved, and therefore the conviction must be reversed.’ (Emphasis added.) 287 N.W.2d at 864-65.
‘The Iowa court in Fluhr also found that the written plea form could not be used to fill in gaps in the oral colloquy required by the statute. 287 N.W.2d at 865.
“Although Browning entered a nolo contendere plea, the ‘Defendant’s Acknowledgment of Rights and Entry of Plea’ (a two-page legal size form agreement) did not contain even one reference to ‘nolo contendere.’ Nolo contendere plea agreements should be labeled and described as nolo contendere plea agreements. A written document such as a plea agreement acknowledgment is encouraged; however, such an acknowledgment is emphatically not a substitute for the requirements of K.S.A. 22-3210.” 245 Kan. at 31-34.
The State contends that the record demonstrates that defendants knowingly and voluntarily entered their pleas for the following, reasons; First, the State points out that “the transcript of the hearing on the motion to withdraw plea reveals that there were two or three hours of plea negotiations before the defendants entered their pleas.” The State argues that both defendants were aware of the nature of the charges because both defendants had gone through plea negotiations on several occasions.
Second, the State notes that the defendants both reviewed the acknowledgment of rights and entry of pleá form with their .attorney- Both signed this form and stated that they understood the contents of the form. The acknowledgment of rights and entry of plea form clearly lists the charges that the defendants Were pleading to. As to the consequences of the pleas, the State argues that the defendants do not allege that they were ignorant of the consequences or that their attorney failed to inform them of these consequences. Finally, the consequences of the guilty plea with respect to defendants’ rights are clearly spelled out in the acknowledgment of rights and entry of plea form.
The trial court did not inform the defendants that by their pleas they waived the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers as required by Boykin and K.S.A. 22-3210. Browning states that “[a] written document such as a plea agreement acknowledgment is encouraged; however, such an acknowledgment is emphatically not a substitute for the requirements of K.S.A. 22-3210.” 245 Kan, at 34.
Kansas law does not require the trial court in accepting a plea of guilty or nolo Gontendere to follow a detailed checklist covering each and every aspect of K.S.A. 22-3210 before accepting the plea. Yet, a detailed checklist is the best way to insure compliance with K.S-A- 22-3210. The record must be unmistakably clear that every aspect of K-S.A. 22-3210 has been complied with in order to reach a conclusion that the plea of a defendant is freely and voluntarily made. The entry of a guilty plea or nolo contendere plea is such a critical stage within our system of criminal justice that the only sure method of demonstrating that the plea is voluntarily and knowingly entered is for the trial judge to follow a detailed checklist covering every aspect of K.S.A. 22-3210. Browning and Noble say as much.
The record before us is woefully inadequate. There is simply no way we may credit the conversations that may have occurred between counsel and clients prior to the entry of pleas in open court to- satisfy the requirements of K.S.A. 22-3210. Nor may we assume from a silent record or from signed acknowledgment of rights and entry of plea forms that the defendants’ pleas were “made voluntarily with understanding of the nature of the charge and the consequences of the'plea[s].” K.S.A. 22-3210(a)(3). The provisions of K.S.A. 22-3210 were not complied with by the court in accepting the pleas of guilty and the record before us does not demonstrate compliance with those statutory requirements. We therefore reverse the convictions, vacate the pleas entered, and remand for trial. | [
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Gernon, J.:
Steven L. Lester appeals from the district court’s ruling affirming the municipal court’s denial of his motion to withdraw his guilty plea. The basis of Lester’s motion was his claim that the municipal court misinformed him concerning the consequences of entering a plea. We affirm.
We must first consider whether Lester’s appeal should be dismissed as moot.
Our appellate decisions have addressed the doctrine of mootness on many occasions. “ ‘[I]t is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. [Citations omitted.]’ ” Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985) (quoting City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 [1981]).
“Mootness is a rule of policy under which a court will not render opinions in matters where judgment could have no practical effect on a then existing controversy. [Citation omitted.] The rule operates even in cases involving questions of great public interest. [Citation omitted.] However, since mootness does not affect the court’s jurisdiction, the court will proceed to judgment whenever dismissal of an appeal adversely affects rights vital to the parties, even where its judgment will not be enforceable because of lapse of time or other changed circumstances. [Citations omitted.]” Gonzales v. State, 11 Kan. App. 2d 70, 70-71, 713 P.2d 489 (1986).
However, the appellate decisions have also cautioned: “An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” Reeves v. Board of Johnson County Comm’rs, 226 Kan. 397, 405, 602 P.2d 93 (1979); Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 315, 657 P.2d 589, rev. denied 233 Kan. 1092 (1983).
Here, if Lester should prevail and subsequently be found not guilty, he would be restored to the status of a first-time offender. This change in and of itself could alter the potential penalties given a subsequent prosecution and his liability under a habitual traffic offender proceeding. It can also be argued that his insurance availability or price could be affected by these proceedings. Given these considerations, we conclude that the appeal is not moot.
So far as the merits are concerned, Lester contends that he should have been permitted to withdraw his guilty plea because he was not informed that his driving privileges would be suspended. Lester maintains this violates K.S.A. 22-3210.
This court recéntly concluded:
“Under K. S.A. 22-3210, a trial court is required to inform the defendant of the direct penal consequences of a guilty plea before accepting the guilty plea- The trial court is not required to inform a defendant of the collateral consequences of a guilty plea, including the loss of certain civil rights, or privileges.” Cox v. State, 16 Kan. App. 2d 128, Syl. ¶ 1, 819 P.2d 1241 (1991).
In C.ox, the defendant argued his guilty plea should be set aside because he was not informed of the plea’s effect on certain “unspecified civil rights.” 16 Kan.- App. 2d 128. This court rejected the defendant’s contention, concluding that:
“The trial court was > not required to inform Cox of the loss of voting rights, jury eligibility, or right to hold office. Nor was it required to inform Cox that, should he receive parole, the parole officer could impose restrictions on him. These are collateral consequences which are not'included in th.e mandates of K.S.A. 22-3210.” 16 Kan. App. 2d at 130-31.
The federal- courts have consistently held that the trial court is not required to inform a defendant of the collateral consequences of a guilty plea. See, e.g., United States v. United States Currency, the amount of $228,536.00, 895 F.2d 908, 914-15 (2d Cir.) (civil forfeiture), cert. denied 495 U.S. 958.(1990); United States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989) (state plea, possible exposure to federal prosecution; Holmes v. United States, 876 F.2d 1545, 1549 (11th Cir. 1989) (ineligibility for parole); United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989) (possible sentence enhancement following a subsequent conviction); United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir.) (possible exposure to federal prosecution), cert. denied 493 U.S. 831 (1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (deportation); United States v. Persico, 774 F.2d 30, 33 (2d Cir. 1985) (possible exposure to RICO prosecution); United States v. Suter, 755 F.2d 523, 525 (7th Cir.) (treble damages in related civil action), cert. denied 471 U.S. 1103 (1985); George v. Black, 732 F.2d 108, 111 (8th Cir. 1984) (civil commitment proceedings); United States v. King, 618 F.2d 550, 552 (9th Cir. 1980) (civil income tax liability); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977) (revocation of parole); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.) (deportation), cert. denied 429 U.S. 895 (1976); Redwine v. Zuckert, 317 F.2d 336, 338 (D.C. Cir. 1963) (undesirable discharge from military).
Various state courts also have concluded that a trial court is not required to inform a defendant of the collateral consequences of a guilty plea. See, e.g., Minnifield v. State, 439 So. 2d 190, 192 (Ala. Crim. App. 1983) (possible sentence enhancement following a subsequent conviction); State v. Hatch, 156 Ariz. 597, 599, 754 P.2d 324 (Ct. App. 1988) (sentence enhancement for subsequent conviction, DWI); People v. McKnight, 200 Colo. 486, 498, 617 P.2d 1178 (1980) (exposure to habitual traffic offender proceeding); Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990) (ineligibility for sentence modification or intensive probation); Blackshear v. State, 455 So. 2d 555, 556 (Fla. Dist. App. 1984) (forfeiture of accumulated gain time); Davis v. State, 151 Ga. App. 736, 737, 261 S.E.2d 468 (1979) (possible exposure to federal prosecution); State v. Jackson, 362 So. 2d 1082, 1088 (La. 1978) (exposure to habitual offender charge); Moore v. State, 72 Md. App. 524, 526-27, 531 A.2d 1026 (1987) (enhanced sentence for subsequent convictions); State v. Fournier, 118 N.H. 230, 231, 385 A. 2d 223 (1978) (exposure to habitual traffic offender proceeding); State v. Heitzman, 209 N.J. Super. 617, 622, 508 A.2d 1161 (1986), aff'd 107 N.J. 603, 527 A.2d 439 (1987) (loss of public employment); Griffin v. Martin, 278 S.C. 620, 621, 300 S.E.2d 482 (1983) (parole eligibility); State v. Barton, 93 Wash. 2d 301, 305, 609 P.2d 1353 (1980) (habitual criminal charge); State v. Santos, 136 Wis. 2d 528, 531, 401 N.W.2d 856 (Wis. App. 1987) (deportation); Carson v. State, 755 P.2d 242, 244 (Wyo. 1988) (deportation).
In State v. Elliott, 133 N.H. 190, 193, 574 A.2d 1378 (1990), the New Hampshire Supreme Court held that exposure to habitual traffic offender proceedings was a collateral consequence of a guilty plea to driving under the influence. In Elliott, Justice Souter reasoned:
“The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction’s consequence that is collateral [citation omitted], in the sense that the consequence requires application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it.” 133 N.H. at 192.
The test of whether consequences are collateral has been defined as “whether the consequences imposed are a definite, immediate, and largely automatic result of the guilty plea.” United States v. Lott, 630 F. Supp. 611, 612 (E.D. Va.), aff'd 795 F.2d 82. (1986).
The applicable Kansas statutory reference has been amended repeatedly in recent years. For some time prior to January 1, 1991, upon conviction, K.S.A. 1989 Supp. 8-1567(1) provided that “the court shall suspend, restrict or suspend and restrict the person’s driving privileges as provided by K.S.A. 1988 Supp. 8-1014.”
Effective January 1, 1991, K.S.A. 1990 Supp. 8-1567(n) provides that “the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person’s driving privileges as provided by K.S.A. 1989 Supp. 8-1014, and amendments thereto.”
K.S.A. 1990 Supp. 8-1014(c) provides:
“(c) Except as provided by subsection (d) and K.S.A. 1989 Supp. 8-2,142, and amendments thereto, if a person has an alcohol or drug-related conviction in this state, the division shall-.
“(1) On the person’s first occurrence, suspend the person’s driving privileges for 30 days or until the person has completed educational and treatment programs required by the court, whichever is longer, then restrict the person’s driving privileges as provided by K.S.A. 1989 Supp. 8-1015, and amendments thereto, for an additional 330 days; and
“(2) on the person’s second or a subsequent occurrence, suspend the person’s driving privileges for one year or until the person has completed the treatment program required by the court, whichever is longer.” (Emphasis added).
We conclude that the suspension of Lester’s driving privileges was a collateral consequence of the guilty plea under our present statutory scheme and that the court was not required to advise him of these consequences. .Lester’s license was suspended by administrative action and not by the court. The portion of K.S.A. 1990 Supp. 8-1567 which requires license suspension and/or restriction is separate and distinct from the part of the statute specifying the other applicable penalties for this offense.
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Elliott, J.:
Russell Bennett appeals a district court judgment denying his claim for workers compensation against his employer, Wichita Fence Company.
We reverse and remand.
The facts are essentially undisputed. Bennett was sent by his employer, in a company vehicle, to make a delivery. On the return trip, Bennett suffered an epileptic seizure, blacked out, and hit a tree. Wichita Fence was aware of Bennett’s condition, having filed a “notice of handicapped employee” with the workers compensation director.
In the initial compensation hearing, the only disputed issue here pertinent was whether the injuries arose out of Bennett’s employment. The administrative law judge answered in the affirmative, awarding Bennett temporary total disability benefits, and assessed the entire award against the Fund.
On review, the director ruled Bennett had failed to sustain his burden to establish the injury had arisen out of the employment. On further review, the district court affirmed the director’s order, adopting the director’s findings of fact and law contained in the director’s order.
There is no dispute that the accident occurred and that injuries were sustained in the course of Bennett’s employment. The sole question is whether the injury, following an epileptic seizure, arose out of Bennett’s employment with Wichita Fence. See K.S.A. 1991 Supp. 44-501(a).
To arise “out of’ employment requires some causal connection between the accidental injury and the employment. Springston v. IML Freight, Inc., 10 Kan. App. 2d 501, 502, 704 P.2d 394, rev. denied 238 Kan. 878 (1985). Whether an injury arises, out of the worker’s employment depends on the facts peculiar to the particular case. 10 Kan. App. 2d at 502.
The director and the district court relied on Cox v. Refining Co., 108. Kan. 320, 195 Pac. 863 (1921). There, claimant, a ditch digger, left the ditch to get a drink of water. A short distance from the ditch (while on level ground), he suffered an epileptic seizure, blacked out, and fell on some hot pipes. 108 Kan. at 321. The claimant was denied compensation because the accident/ injury did not arise out of his employment. 108 Kan. at 327.
But 70 years ago in Cox, our Supreme Court cited a Massachusetts case where compensation was allowed when an employee, while driving a wagon, had a seizure and fell from the wagon, fracturing his skull. Massachusetts allowed compensation. The Cox court noted the Massachusetts case was not wrongly decided, due to the increased risk to which the worker was exposed owing to the position in which he had to work. 108 Kan. at 325.
In 1921, our Supreme Court in Cox recognized and predicted what would become the generally accepted rule: Where an employment injury is clearly attributable to a personal (idiopathic) condition of the employee, and no other factors intervene or operate to cause or contribute to the injury, no award is granted. Southland Corp. v. Parson, 1 Va. App. 281, 285-86, 338 S.E.2d 162 (1985). But where an injury results from the concurrence of some preexisting idiopathic condition and some hazard of employment, compensation is generally allowed. Southland Corp., 1 Va. App. at 286.
Professor Larson now states there is general agreement that the effects of a fall are compensable if conditions of employment place the employee in a position increasing the effects of a fall, such as in a moving vehicle. 1 Larson’s Workers’ Compensation Law § 12.11 (1990).
Assuming claimant had a seizure and lost consciousness, the fact he was driving the employer’s vehicle in the course of his employment subjected him to the additional risk of travel. While the seizure was personal to claimant, the risk of travel arose out of the employment and the two concurred to produce the injuries. Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 860-61, 174 So. 2d 495 (1965).
Accord Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989) (fall during seizure; work on 25-foot scaffold constituted special employment hazard; compensation allowed); Tapp v. Tapp, 192 Tenn. 1, 236 S. W.2d 977 (1951) (compensation allowed for injuries from auto accident where claimant blacked out due to asthmatic coughing spell).
In the present case, conditions of Bennett’s employment (driving the company vehicle), placed Bennett in a position of increased risk. This increased risk provided the necessary causal connection between his injury and his employment. The accident arose “out of’ his employment.
Accordingly, compensation should have been allowed.
The issue of the Fund’s liability was not addressed by the district court. At oral argument, the parties seemed to agree that if the injury is compensable, the Fund will bear all the liability. On remand, this issue will either be stipulated to or decided by the trial court.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Lewis, J.:
This is a personal injury action arising out of an automobile accident. The trial court granted summary judgment in favor of the defendants. The plaintiff appeals. The defendants also cross-appeal certain rulings by the trial court. We reverse and remand.
The automobile accident which gave rise to the plaintiff s cause of action was the subject of a previous lawsuit. In the first action involving this automobile accident, the plaintiff was Walter Jones, who is not a party to this action. The defendants in the action filed by Jones were Carl Cook, the present plaintiff, and Percy Freeman and Louella Dodds, the present defendants. The suit filed by Jones was settled prior to any determination of damages or comparative fault. It was also settled prior to Cook having ■filed any cross-claim against Freeman or Dodds.
The trial court in this case held that the plaintiff was precluded from bringing the present action. The court decided that it should have been brought as a compulsory cross-claim in the original action filed by Jones. The plaintiff appeals that determination.
The defendants cross-appeal the trial court’s rulings on service, return of service, and other procedural matters.
We shall deal first with the procedural issues raised by the cross-appeal before dealing with the issue raised by the plaintiff.
SERVICE
The defendants contend that they were not served with process within the time required by the statute of limitations.
The automobile accident in question took place on June 13, 1987. The applicable statute of limitations is two years, K.S.A. 60-513. This action was filed on June 12, 1989, within the two-year period of limitations.
The issue presented is that of service of process. K.S.A. 1991 Supp. 60-203(a) provides that an action is deemed commenced on filing if service is obtained within 90 days thereafter. This 90- day period may be extended by the court for an additional 30 days. In order to obtain such an extension, good cause must be shown, and the application must be sought and granted before the expiration of the original 90-day period.
“Based on the plain, unambiguous language of K.S.A. 60-203(a), and considering existing case law rules and the lack of any legislative intent to the contrary, we hold that an extension of time under K.S.A. 60-203(a) must be sought and granted before the expiration of the 90-day period. ” (Emphasis added.) Read v. Miller, 247 Kan. 557, 564, 802 P.2d 528 (1990).
In this case, the plaintiff was unable to obtain service of process on the defendants within 90 days from the date of filing. The plaintiff applied for and received an extension of 30 days, and service was had within that 30-day period. The defendants contend that the order granting an extension of time was not sought and granted prior to the expiration of the 90-day period.
The original 90-day period expired on September 10, 1989. That was a Sunday and, as a result, the plaintiff had one additional day to obtain his extension of time by September 11, 1989. See K.S.A. 1991 Supp. 60-206(a).
The order of the trial court granting the extension to the plaintiff is dated September 11, 1989, and reads as follows:
“Now on this 11th day of September, 1989, comes on for hearing in accordance with Section 60-203, plaintiffs application for an extension of an additional thirty (30) days upon which to obtain service on the above named defendants.
“Plaintiff shows to the Court that good cause exists in that the defendants cannot be found with reasonable diligence at any of the addresses suppliéd by plaintiff or the police report.
“It is so ordered.”
Although the order was apparently granted orally on September 11, 1989, it apparently was not journalized and filed of record until September 21, 1989. The defendants argue that, under these facts, the order was not effective until it was reduced to writing and filed of record on September 21, 1989. Since this date is well beyond 90 days from the filing of the petition, the defendants argue that the order was neither sought nor obtained within the necessary 90-day period.
We disagree. The order extending time clearly states that it was granted on September 11, 1989. We are aware of no re quirement that such an order must be obtained in writing and ■filed of record within the 90-day time frame. The fact that the order was not journalized and filed of record until September 21, 1989, is not conclusive. The record shows that, regardless of when the order was journalized and filed, it was sought and obtained on September 11, 1989, within the period of time permitted by law. We hold that, under the facts shown, the plaintiff sought and obtained a timely 30-day extension in which to obtain service on the defendants.
RETURN OF SERVICE
Al Sanchez was appointed as special process server by the trial court in the instant matter. Although service of process was obtained, the defendants attack the validity of the return of service. The return of service was not timely filed. In fact, it was apparently not filed at all. The trial court dismissed the action for lack of service. . ,
The action was reinstated by the trial court based on an affidavit filed by Sanchez. This affidavit was filed long after the time for returns required by statute. In the affidavit, Sanchez stated that he served the defendants sometime “[d]uring the week of September 25, 1989.” The service was accomplished, according to the affidavit, by serving one defendant personally and by leaving service for the other defendant with the one personally served. The affidavit goes on to set forth the belief of the affiant that he had made out his return, in a timely manner and filed it with the court. Despite the belief of the affiant, the record does, not contain the original return, and, if it was filed, we can only speculate as to its current whereabouts.
The defendants complain that Sanchez’ affidavit does not specify the exact date and time on which service was completed. We agree that the affidavit is vague in this regard, but we hold that such vagueness does not support the defendants’ argument under the facts shown. The plaintiff was given an additional 30 days to complete service on September 11, 1989. Service at some time “during the week of September 25” is well within the 30-day period of extension. For that reason, the failure to specify the exact date and time of service is not prejudicial and does not render such service void or voidable.
K.S.A. 1991 Supp. 60-312(d) states that service must be returned “promptly and in any event within 10 days after the service is effected.” It goes on to specify that, if process cannot be served, “it shall be returned to the court within 30. days .after the date of issue with a statement , of the reason for the failure to serve the same.” • , ,
In this case, the special process server was appointed September 21, ,1989, and received process for service at that time. The affidavit showing return of service was not filed until March 15, 1990, long after the ,10-day, period required for the return by statute.
The return in, this case was not timely filed. Despite that fact, the defendants were timely served, filed a timely answer, and do not appear to have suffered any prejudice! Under the circumstances, this court must decide what effect, if any, the untimely return has on the service of process.
The defendants argue that failure to make a timely return of service renders an othérwise valid service void or voidable at the option' of the defendants. We disagree!‘
The defendants cite, as support of their position, á Connecticut Court of Appeals decision, Bergin v. Bergin, 3 Conn. App. 566, 490 A.2d 543, rev. denied 196 Conn. 806 (1985). In that case, the Connecticut court held that, where a return is not timely filed, the service is voidable at the option of the defendant. We acknowledge that the law in Connecticut would favor the position advocated by the defendants. However, we decline to adopt süch a rule as the law of Kansas.
Federal case law holds that service of process on the defendant creates jurisdiction and that a defect in the return of service does not destroy that jurisdiction. See, e.g:, United States v. Ekblad, 732 F.2d 562 (7th Cir. 1984). This holding is in line with Fed. R. Civ. Proc. 4(g), which provides: “Failure to make proof of service does not affect the validity of the service. ” There are cases of-sister states in accord in those jurisdictions, which follow the federal rules of civil procedure. See Hirsch v. National Van Lines, Inc., 136 Ariz. 304, 666 P.2d.49 (1983); State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 497.N.E.2d 1156 (1986); Estate of Palucci, 61 Wash. App. 412, 810 P.2d 970 (1991). The Louisiana Court of Appeals reached the same conclusion in applying a statute similar to K.S.A. 1991 Supp. 60-312(d) in Hood Motor Company, Inc. v. Lawrence, 334 So. 2d 460 (La. App. 1976).
It is apparent that the federal decisions are dictated by Fed. R. Civ. Proc. 4(g), and we have no similar language in our statutes. Despite that fact, we find nothing in our statutes to require that we reach a result contrary to that followed in the federal system. We believe that the fact of service establishes jurisdiction and that a technical defect in the return of service, which does not impair the substantial rights of a defendant, should not defeat that service. To hold otherwise would be to place form above substance, and we decline to do so.
Our Supreme Court has indicated that it would agree with our conclusion. In State v. Jones, 226 Kan. 503, 507, 601 P.2d 1135 (1979), counsel personally served a subpoena on a witness but failed to file an affidavit of service as required by K.S.A. 60-245(c). The court held that service to be valid, noting, “K.S.A. 60-313 allows any process, return or proof of service to be amended at any time unless such amendment would'materially prejudice the substantial rights of the party against whom process was issued.” 226 Kan. at 507. The court stated its rationale as follows:
“Where process has been properly served, a technical defect in the paperwork that can be readily corrected to speak the truth, and which does not materially prejudice the substantial rights of the party against whom the process was issued, should not be allowed to interfere with substantial justice.” 226 Kan. at 507-08.
We view the instant matter in the same light as that shown above. The time is long past when hypertechnical errors in paperwork will be allowed to interfere with substantial justice. In the present matter, the defendants were served in a timely manner and were not prejudiced or misled in any way by any errors occurring in the return of service. A return of service can be amended at any time, and the trial court did not err in permitting the return in this case to be filed out of time. We hold that, under the facts shown, the technical defect in the return of service, which did not impair the substantial rights of the defendants, should not and does not impair the service of process. We are convinced that our decision promotes essential justice in the ab sence of the impairment of any substantial rights of the defendants.
We also note the possibility that the original return was lost or misplaced by the clerk’s office. The Supreme Court has very recently held that such an error by the clerk should not deprive a litigant of an adjudication on the merits. Slayden v. Sixta, 250 Kan. 23, 825 P.2d 119 (1992).
REINSTATEMENT
As pointed out earlier, at one point the trial court dismissed the plaintiffs action because no service of process was shown of record. However, the court later reversed itself and reinstated the plaintiffs action. The last action of the court was done ex parte without notice to the defendants. The defendants argue that it was error to reinstate the action without notice to them.
We consider the defendants’ argument to be without merit. Even if we assume that the trial court erred in its failure to give notice to the defendants, the error is not reversible. At very best, that error, under the facts shown, is harmless. After reinstating the plaintiffs action, the trial court permitted the defendants to contest and argue the issue of jurisdiction in a motion to set aside the order of reinstatement. At the hearing on this motion, the defendants raised all of the issues raised and considered on this appeal. The trial court carefully considered all issues and denied the defendants’ motion. In view of this fact, no possible prejudice could have been caused to the defendants by the failure to give them notice of the hearing to reinstate. If there was error, it was harmless only and certainly does not rise to the level of reversible error.
COMPULSORY CROSS-CLAIM
As we noted earlier, the plaintiff and these defendants were all codefendants in the action filed by Walter Jones. That action arose out of the same automobile accident which forms the basis of the plaintiffs current cause of action. The trial court in this case held that the plaintiff was required to file his claim against the defendants as a compulsory cross-claim in the action filed by Jones. As a result, it held that this action was barred and granted summary judgment in favor of the defendants.
Under K.S.A. 1991 Supp. 60-213(g), a claim against a co-party is compulsory in a comparative fault action governed by K.S.A. 1991 Supp. 60-258a. The original action filed, by Jones was a comparative fault action controlled by 60-258a. This plaintiff and these .defendants were all co-parties in the action filed by Jones. Obviously any claim the plaintiff had against these defendants arising out of the accident of June 13, 1987, was a compulsory cross-claim under the provisions of 60-213(g). The action brought by Jones was settled without a judicial determination of liability or comparative fault and was settled before.the present plaintiff could file a cross-claim against the current defendants.
This court must decide whether, under the facts shown, the failure of the plaintiff to file a compulsory cross-claim against the defendants in the earlier action is fatal to his cause of action. Based on the “one trial” rule, enunciated by our Supreme Court in actions similar to the one now before us, we hpld that, under the facts shown, the failure to file a cross-claim does not bar the plaintiff from prosecuting the present action.
Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981), held that, in actions filed involving K.S.A. 60-258a, a plaintiff was required to name all defendants whose negligence contributed to his or her injuries in any action filed to recover damages for those injuries. That decision has been very narrowly applied by our Supreme Court, which has consistently retreated from the rule stated in Albertson. In. Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988), the Supreme Court concluded that a plaintiff is not barred , from bringing a second action against a defendant, not joined in the first action, where the plaintiff had settled the prior case before a, judicial determination of comparative fault was made. The Mathis decision basically changed the “one action” rule to the “one trial” rule. The court reasoned as follows:
“After an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence. K.S.A. 60-258a certainly contemplates one action in which comparative fault is determined. However, it was never the intént of the legislature or this court to place form over substance and preclude a plaintiff from proceeding ■against a tortfeasor when there has been no judicial determination of comparative fault.” 242 Kan. at 794. .
Mathis and its progeny have clearly established a “one' trial” rule, which applies to actions filed by a plaintiff under 6Q-258a. These decisions hold that, so long as there has been ño judicial determination of comparative fault, a plaintiff may bring separate actions against different defendants seeking to recover damages arising out of the same occurrence. Thus, a plaintiff is not limited to “one action.” He may have several actions so long as he avoids a trial añd a judicial determination of comparative fault. Once a plaintiff proceeds to trial and comparative fault is judicially determined, he may not thereafter pursue Other actions for damages arising out of the same occurrence. He may be entitled to more than one' action, but our Supreme Court has determined that he is entitled to only “one trial.” This rule has beén followed and refined by our Supreme Court in several decisions reached after Mathis. See Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988); Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988); Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988).
The most recent decision is virtually identical to the factual situation presently before this court. In Patterson v. Brouhard, 246 Kan. 700, 792 P.2d 983 (1990), the facts shown were that Patterson and Brouhard had both been named as codefendants in a previouis action involving an automobile accident. Patterson and Brouhard had settled with the plaintiff in the previous action before either had filed a cross-claim against the other. Patterson then sued Broúhard for injuries arising from the same accident. The trial court granted a motion for summary judgment in favor of the defendant on the grounds that the plaintiff s claim against the defendant should have been brought ás a compulsory cross-claim in the prior action. The prior action had been settled prior to trial and prior to any determination of comparative ñegligence. The Supreme Court reversed the action by the trial court. ‘
There are some differences between Patterson and the case now before this court. The defendants assert that Patterson is not authority for the position taken by the plaintiff in the present litigation. In Patterson, the trial court, in dismissing the original action, stated in its journal entry that “ ‘no settlement or compromise exists as to any claims the defendants may have against each other or any third party.’ ” 246 Kan. at 701. The defendants argue that the Patterson decision should be limited to its facts and should only be applied in actions where the journal entry dismissing thé. original action preserves the claims the defendants have against each other as it did in Patterson.
We are. not inclined to interpret Patterson in the narrow manner argued by the defendants. It is true, that the Supreme Court in Patterson refers to the language of the journal entry dismissing the original action. However, the Supreme Court in Patterson states, On page 706:
“The legislature, by adopting K.S.A. 60-258a, imposed individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even where one or more parties cannot be joined formally as a litigant or held legally responsible for his or her proportionate fault. It was also the intent of the legislature to. fully and finally litigate in a single action all causes of actions and claims for damages arising out of any act of negligence. It is the public policy of this state, that all parties are entitled to a just, speedy, and inexpensive determination of every action or proceeding. Neither the legislature nor this court ever intended to place form over substance and preclude an injured party from proceeding, against a tortfeasor when there had been no judicial determination of comparative fault. Mathis v. TG&Y, 242 Kan. 789, 751, P.2d 136 (1988).” (Emphasis added.)
We construe the language emphasized above as an intent to treat compulsory cross-claims in the same manner in which the plaintiff s causes of action are treated. In other words, Patterson indicates to us that the Supreme Court intended to apply the “one trial” rule to compulsory cross-claims. It would certainly be placing form over substance to say that a plaintiff could proceed in the manner in which this plaintiff seeks to proceed, but that he is barred from doing so because he was a defendant and, subject to a compulsory cross-claim rule. It would-be illogical and unjust to apply one rule to multiple actions filed by a plaintiff and another, more restrictive, rule to actions by a former defendant in a previous action who was subject to our compulsory cross-claim statute. This is the position the defendants seek to have us adopt. We decline to do so, and hold that the “one trial” rule applied to plaintiffs in this jurisdiction applies with equal effect to defendants who are subject to the compulsory cross-claim statute. We conclude that, so long as there has been no judicial determination of comparative fault in the previous: action, a plain tiff will not be barred from bringing an action against a former codefendant in á previous action involving the same transaction because of his failure to file a compulsory cross-claim prior to the settlement of the previous action. It follows, therefore, that the trial court erred in granting the defendants’ motion for summitry judgment, and we reverse that action and remand for a trial on the merits. .
WAS THE ISSUE RAISED BELOW?
The defendants assert that the plaintiff did not raise before the trial court the issue of whether the “one trial” rule from Mathis and cases of its ilk should be applied to actions subject to K.S.A. 1991 Supp. '60-213(g). As a result, the defendants argue that the issue,’ not having been raised below, cannot be raised' for the first time on appeal. We disagree.
. The record does not contain a transcript of the hearing on the defendants’ motion for summary judgment. The plaintiff s motion in opposition to the defendants’ motion for summary judgment does not address the issue of whether K.S.A. 1991 Supp. 60-213(g) and K.S.A.' Í991 Supp. 60-258a bar the plaintiffs claims against the defendants.
Assuming that this issue was not properly raised by the plaintiff at the trial court level, an argument could be made that it cannot be asserted for the first time on appeal. However, an exception to the general rule provides that, if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally detérminative of the case, or if consideration is necessary to serve the ends of justice or prevent denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court. Wortman v. Sun Oil Co., 236 Kan. 266, Syl. ¶ 2, 690 P.2d 385 (1984); State v. Anderson, 12 Kan. App. 2d 342, Syl. ¶ 1, 744 P.2d 143 (1987).
We believe the instant matter fits the exception stated above. In the present base, the facts are not disputed; the only issue is to determine if the “one trial” rule of Mathis and similar decisions applies to a compulsory cross-claim under 60-213(g). This is a question of law involving the interpretation of the statute and its relationship to -60-258a. Therefore, even though the plaintiff may have failed to raise this issue to the trial court, it fits the exception to the general rule, and we apply that- exception and address the issue.
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Rogg, J.:
Clifford Eugene Cox appeals the order of the district court denying his motion to withdraw his guilty plea.
Cox pleaded guilty to the first-degree murder of Cathryn Kessinger. He was sentenced to life in prison. He did not file a direct appeal.
On July 25, 1988, Cox filed a motion pursuant to K.S.A. 60-1507, alleging only that the court should not have accepted his guilty plea because he was not advised of the full consequences of his plea. At oral argument he alleged the court failed to advise him of parole eligibility and certain “unspecified civil rights.” The motion was overruled on November 17, 1989. Cox filed a notice of appeal on November 17, 1989.
After the appeal was filed, Cox presented the appellate defender s office with the affidavit of his codefendant, William Kessinger, in which Kessinger claimed full responsibility for the death of Cathryn. Thereafter, this court remanded the case for the purpose of appointing counsel to represent Cox and to file a supplemental petition. The supplemental motion was filed in the trial court, and it alleged that Cox’s guilty plea was coerced by fear of William and that the trial court failed to establish a factual basis for the element of premeditation. An evidentiary hearing was held on the motion. On March 1, 1991, the trial court denied Cox’s supplemental petition in a lengthy memorandum opinion. He filed a timely notice of appeal.
On June 14, 1991, the appellate defender, on Cox’s behalf, filed a motion to stay disposition of the appeal and for permission for Cox to file a pro se brief. In the motion, the appellate defender stated that he had determined defendant’s supplemental brief contained no issues to be raised on appeal. Thus, the defendant wanted to file a supplemental brief raising those issues himself. This court granted the stay and ordered that the supplemental brief be filed by July 22, 1991, with an additional extension until August 26, 1991, for filing. The brief was filed on August 26, 1991.
The first issue we address is whether the trial court was required to advise Cox that he would lose certain civil rights if he pled guilty. This was the issue raised in his initial 60-1507 motion and was the one briefed by the appellate defender.
K.S.A. 22-3210 provides requirements which must be met before the trial court accepts a guilty plea. One of those requirements is that, in felony cases, the trial court has informed the defendant of “the consequences of the plea and of the maximum penalty.” K.S.A. 22-3210(a)(2). Cox argues that this sectipn required the court to inform him of civil rights he would lose once he was convicted of a felony.
The Kansas Supreme Court has stated the following about K.S.A. 22-3210:
‘This procedure basically follows Rule IX of the Federal Rules of Criminal Procedure, compliance with which is held to be mandatory upon the federal courts in McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), and which procedure is fastened upon the state courts as a requirement of due process. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977). K.S.A. 22-3210 was enacted following the Boykin decision. See Widener v. State, 210 Kan. 234, 237-38, 499 P.3d 1123 (1972).’ ” State v. Reed, 248 Kan. 506, 508, 809 P.2d 553 (1991) (quoting State v. Dillon, 242 Kan. 410, 413, 748 P.2d 856 [1988]).
Rule 11(c) of the Federal Rules of Criminal Procedure states specific information the trial court must personally give the defendant before accepting a guilty plea. This information does not include collateral matters. The Ninth Circuit has stated:
“We have said that Rule 11, as amended, does not require the district court to inform the defendant of every possible consequence of his plea. He must be informed of the direct consequences, but not all the possible collateral consequences. Sanchez v. United States, 572 F.2d 210 (CA9 1977). For example, it is unnecessary to inform a defendant of: (1) the possibility of revocation of parole, Sanchez, supra; (2) the possibility that a federal sentence might be ruled to run consecutively to a state sentence, Faulisi v. Daggett, 527 F.2d 305 (CA7 1975); (3) his potential deportation, Fruchtman v. Kenton, 531 F.2d 946 (CA9 1976), cert. denied 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 and; (4) the likelihood of an undesirable military discharge. Redwine v. Zuckert, 317 F.2d 336 (D.C. Cir. 1963).” United States v. King, 618 F.2d 550, 552 (9th Cir. 1980).
Our research reveals no Kansas case on this issue. However, New Jersey law also provides that the trial court must advise the defendant of the “nature of the charge and the consequences of the plea.” New Jersey Rules Governing Criminal Practice, Rule 3:9-2. The New Jersey courts have interpreted this language as requiring only that the defendant be advised of the penal consequences of his plea. State v. Heitzman, 209 N.J. Super. 617, 622, 508 A.2d 1161 (1986), aff'd 107 N.J. 603, 527 A.2d 439 (1987). The court was not required to inform the defendant of collateral consequences such as “loss of public or private employment, effect on immigration status, voting rights, possible auto license suspension, possible dishonorable discharge from the military, or anything else.” 209 N.J. Super, at 622.
The trial court was not required to inform Cox of the loss of voting rights, jury eligibility, or right to hold office. Nor was it required to inform Cox that, should he receive parole, the parole officer could impose restrictions on him. These are collateral con sequences which are not included in the mandates of K.S.A. 22-3210.
The supplemental petition of the appellant raises two additional issues: Was his guilty plea coerced by fear of his codefendant and was there a factual basis for the plea? The trial court’s memorandum opinion of March 1, 1991, carefully and fully makes findings concerning both of these issues. We will not set out in detail those findings. The evidence in the record supports the court’s conclusion that the plea was not induced by the coercion of the codefendant. The record supports the trial court’s conclusion that the evidence of alleged threats by the codefendant is vague, inconsistent, and not credible.
The issue concerning the factual basis for the appellant’s plea is somewhat more difficult, as acknowledged by the trial court. The appellant’s challenge to the validity of the plea is directed at the alleged failure to establish a factual basis for the element of premeditation. The exchange between the court and appellant on this issue is as follows:
“The Court: The Amended Information filed this date alleges that on the 6th day of May, 1984, in this county, feloniously, willfully and maliciously and deliberately and with premeditation, you killed and murdered Catherine Kessinger by strangulation with a rope. On that date, May 6th, 1984, in this county, did you kill and murder Catherine Kessinger by strangling her with a rope?
“The Defendant: Yes, Your Honor.”
In addition, the appellant had previously been furnished an amended information charging first-degree murder before the plea hearing. Cox acknowledged understanding the charge against him. This, we find, is sufficient to demonstrate that the court had an adequate basis to determine that there was a factual basis for the plea. See Noble v. State, 240 Kan. 162, 170, 727 P.2d 473 (1986); James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976); Widener v. State, 210 Kan. 234, 499 P.2d 1123 (1972).
The appellant raises some additional issues in his supplemental brief which were not raised before the court below. We, therefore, do not rule on them as they are presented for the first time on appeal.
The trial court’s rulings are affirmed. | [
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WALTON, J.:
The Decatur Coop Association (Coop) (third-party intervenor/appellant) appeals a breach of contract damages award it received from Denis Tongish (plaintiffappellee), alleging damages should have been the difference between the market price of sunflower seeds and the contract price under K.S.A. 84-2-713. We agree that the trial court applied the wrong measure of damages. We reverse the damages award and remand with directions that the trial court determine the damages under K.S.A. 84-2-713.
On April 28, 1988, Coop contracted with Denis Tongish to purchase all the sunflower seeds grown by him. The contract required Tongish to plant 160 acres of sunflower seeds but was later reduced to 116.8 acres. The seeds were to be delivered one-third by December 31, 1988, one-third by March 31, 1989, and one-third by May 31, 1989. The price for the seeds was $13 pér hundred pounds for large seeds and $8 per hundred pounds for small seeds.
Coop also contracted with Bambino Bean & Seed, Inc., to sell it all the sunflower seeds Coop purchased from the farmers. Bambino paid Coop the same price Coop paid the farmers.
Coop retained a $.55 per hundred pounds handling charge for the seeds it receivéd from the farmers and then delivered the seeds to Bambino. Therefore, Coop had no risk on fluctuating market prices in its contract with Tongish. The only profit anticipated by Coop was the handling fees for the seeds.
In October and November, Tongish delivered sunflower seeds to Coop as the contract required. In January, a disagreement occurred between Tongish and Coop over the amount of dockage found in the seeds Tongish delivered. Coop readjusted the amount and paid Tongish an extra $222.33.
By January the market price of sunflower seeds had doubled from the Tongish-Coop contract price. On or about January 13, 1989, Tongish informed Coop that he was not going to honor the contract.
In May 1989, Tongish delivered 82,820 pounds of sunflower seeds to Danny Thomas for a price of $14,714.89. After dockage, the price was about $20 per hundred pounds. Tongish testified that if he sold all of these seeds to Coop under the contract price for large seeds, he would receive about $9,561.76. Therefore, Tongish would receive $5,153.13 more from Danny Thomas'than he would by performing under the contract with Coop.
Tongish filed a petition against Danny Thomas to collect the balance due from their sunflower seed sale. Thomas paid $7,359.61 into the court and was later dismissed as a party. Coop intervened as a third-party defendant. Coop alleged that Tongish breached their contract and it was entitled to damages.
A trial was held on May 14, 1991. The trial court found that Tongish had breached the contract and there was no basis for that breach. The court also determined that Coop was entitled to damages in the amount of $455.51, the expected profit , for handling charges in the transaction. Coop timely appealed.
The trial court decided the damages to Coop should be the loss of expected profits. Coop argues that K.S.A. 84-2-713 entitles it to collect as damages the difference between the market price and the contract price. Tongish argues that the trial court was correct and cites K.S.A. 84-1-106 as support for the contention that, a party should be placed in as good a position as it would be in had the other .party performed. Therefore, the. only disagreement is how .the damages should be calculated. .
The measure of damages in this action involves two sections of the Uniform Commercial Code: K.S.A. 84-1-106 and K.S.A. 84-2-713. The issue to be determined is which statute governs the measure of damages. Stated in another way, if the statutes are in conflict, which statute should prevail? The answer involves an ongoing academic discussion of two contending positions. The issues in this case disclose the problem..
If Tongish had not breached the contract, he may have received under the contract terms with Coop about $5,153.13 less than he received from Danny Thomas. Coop in turn had an oral contract with Bambino to sell whatever seeds it received from Tongish to Bambino for the same price Coop paid for them. Therefore, if the contract had been performed, Coop woujd not have actually received the extra $5,153.13.
We first turn our attention to the conflicting statutes and the applicable rules of statutory construction. K.S.A. 84-1.-106(1) states:
“The remedies provided by this act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this act or by other rule of law.”
If a seller breaches a contract and the buyer does not “cover,” the buyer is free to pursue other available remedies. K.S.A. 84-2-711 and 84-2-712. One remedy, which is a complete alternative to “cover” (K.S.A. 84-2-713, Official comment, ¶ 5), is K.S.A. 84-2-713(1), which provides:
“Subject to the provisions of this article with respect to proof of market price (section 84-2-723), the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this article (section 84-2-715), but less expenses saved in consequence of the seller’s breach.”
Neither party argues that the Uniform Commercial Code is inapplicable. Both, agree that the issue to be determined is which provision of the UCC should be applied. As stated by the appellee: “This is really the essence of this appeal, i.e., whether this general rule of damages [K.S.A. 84-1-106] controls the measure of damages set forth in K.S.A. 84-2-713.” However, Tongish thén offers no support that K.S.A. 84-1-106 controls over K.S.A. 84-2-713. The authority he does cite (M & W Development, Inc. v. El Paso Water Co., 6 Kan. App. 2d 735, 634 P.2d 166 [1981]) is- not a UCC case and K.S.A. 84-2-713 was not applicable.
The statutes do contain conflicting provisions. On the one hand, K.S.A. 84-1-106 offers a general guide of how remedies of the UCC should be applied, whereas K.S.A. 84-2-713 specifically describes a damage remedy that gives the buyer certain damages when the seller breaches a contract for the sale of goods.
The cardinal rule óf statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature govern. State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719, 792 P.2d 971 (1990); Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 246 Kan. 412, 417, 789 P.2d 1170 (1990); and Stauffer Communications, Inc. v. Mitchell, 246 Kan. 492, Syl. ¶ 1, 789 P.2d 1153 (1990). When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Wilcox, 245 Kan. 76, Syl. ¶ 1, 775 P.2d 177 (1989). The Kansas Supreme Court stated in Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989): “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.”
K.S.A. 84-2-713 allows the buyer to collect the difference in market price and contract price for damages in a breached contract. For that reason, it seems impossible to reconcile the decision of the district court that limits damages to lost profits with this statute.
Therefore, because it appears impractical to make K.S.A. 84-1-106 and K.S.A. 84-2-713 harmonize in this factual situation, K.S.A. 84-2-713 should prevail as the more specific statute according to statutory rules of construction.
As stated, however, Coop protected itself against market- price fluctuations through its contract with Bambino. Other than the minimal handling charge, Coop suffered no lost profits from the breach. Should the protection require an exception to the general rule under K.S.A. 84-2-713?
In Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 292, 644 P.2d 413 (1982), a farmer agreed to sell 10,000 tons of alfalfa to the buyer for $45 per ton. At the time the seller breached the contract, the market price was $62 per ton. 231 Kan. at 293. The court found, pursuant to K.S.A. 84-2-713, that the damages amounted to $17 per ton or the difference between the market price and the contract price. The court stated: “We find nothing which would justify the trial court in arriving at damages using loss of business profits which are consequential damages.” 231 Kan. at 298.
In Baker v. Ratzlaff, 1 Kan. App. 2d 285, 564 P.2d 153 (1977), the seller contracted to sell all the popcorn planted on 380 acres for $4.75 per hundredweight. The seller breached, and the trial court found that the market price for popcorn was $8 per hundredweight when the buyer learned of the breach. The court held that the proper measure of damages would be the difference between the market price and the contract price as provided in K.S.A. 84-2-713. 1 Kan. App. 2d at 290.
Neither Panhandle nor Baker involved a conflict between the two UCC provisions. The difference between the market price and the contract price placed the nonbreaching party in as good a position as that party would have been if the contract had been performed. The decisions can be distinguished from this case, however, in that Coop protected itself against market price fluctuations with the Bambino contract.
There is authority for appellee’s position that K.S.A. 84-2-713 should not be applied in certain circumstances. In Allied Canners & Packers, Inc. v. Victor Packing Co., 162 Cal. App. 3d 905, 209 Cal. Rptr. 60 (1984), Allied contracted to purchase 375,000 pounds of raisins from Victor for 29.75 cents per pound with a 4% discount. Allied ■ then contracted to sell the . raisins for 29.75 cents per pound expecting a profit of $4,462.50 from the 4% discount it received from Victor. 162 Cal. App. 3d at 907-OS.
Heavy rains damaged the raisin crop and Victor breached its contract, being unable to fulfill the requirement. The market price of raisins had risen to about 80 cents per pound. Allied’s buyers agreed to rescind their contracts so Allied was not bound to supply them with raisins at a severe loss. Therefore, the actual loss to Allied was the $4,462.50 profit it expected, while the difference between the market price and the contract price was about $150,000. 162 Cal. App. 3d at 908-09.
The California appellate court, in writing an exception, stated: “It has been recognized that the use of the market-price contract-price formula under section 2-713 does not, absent pure accident, result in a damage award reflecting the buyer’s actual loss. [Citations omitted.]” 162 Cal. App. 3d at 912. The court indicated that section 2-713 may be more of a statutory liquidated damages clause and, therefore, conflicts with the goal of section 1-106. The court discussed that in situations where the buyer has made a resale contract for the goods, which the seller knows about, it may be appropriate to limit 2-713 damages to actual loss. However, the court cited a concern that a seller not be rewarded for a bad faith breach of contract. 162 Cal. App. 3d at 912-14.
In Allied, the court determined that if the seller knew the buyer had a resále contract for the goods, and the seller did not breach the contract in bad faith, the buyer was limited to actual loss of damages under section 1-106. 162 Cal. App. 3d at 915.
The similarities between the present case and Allied áre that the buyer made a resale contract whifch the seller knew about. (Tongish knew the seeds eventually went to Bambino, although he may not have known the details of the deal.) However, in examining the breach itself, Victor could not deliver the raisins because its crop had been destroyed. Tongish testified that he breached the contract because he was dissatisfied with dockage tests of Coop and/or Bambino. Victor had no raisins to sell to any buyer, while Tongish took advantage of the doubling price of sunflower seeds and sold to Danny Thomas. Although the trial court had no need to find whether Tongish breached the contract in bad faith, it did find there was no valid reason for the breach. Therefore, the nature of Tongish’s breach was much different than Victor’s in Alliéd.
Section 2-713 and the theories behind it have a lengthy and somewhat controversial history. In 1963, it was suggested that 2-713 was a statutory liquidated damages clause and riot really an effort to try and accurately predict what actual damages would be. Peters, Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code: A Roadmap for Article Two, 73 Yale L.J. 199, 259 (1963).
In 1978, Robert Childres called for the repeal of section 2-713. Childres, Buyers Remedies: The Danger of Section 2-713, 72 Nw. U. L. Rev. 837 (1978). Childres reflected that because the market price/contract price remedy “has been the cornerstone of Anglo-American damages” that it has been so hard to see that this remedy “makes no sense whatever when applied to real life situations.” 72 Nw. U. L. Rev. at 841-42.
In 1979, David Simon and Gerald A. Novack wrote a fairly objective analysis of the two arguments about section 2-713 and stated:
“For over sixty years our courts have divided on. the question of which measure of damages is appropriate for the supplier’s breach of his delivery obligations. The majority view, reinforced by applicable codes, would award market damages even though in excess of plaintiffs loss. A persistent mi nority would reduce market damages to the plaintiffs loss, without regard to whether this creates a windfall for the defendant. Strangely enough, each view has generally tended to disregard the arguments, and even the existence, of the opposing view.” Simon and Novack, Limiting the Buyers Market Damages to Lost Profits: A Challenge to the Enforceability of Market Contracts, 92 Harv. L. Rev. 1395, 1397 (1979).
Although the article discussed both sides of the issue, the authors came down on the side of market price/contract price as the preferred damages theory. The authors admit that market damages fly in the face “of the familiar maxim that the purpose of contract damages is to make the injured party whole, not penalize the breaching party.” 92 Harv. L. Rev. at 1437. However, they argue that the market damages rule discourages the breach of contracts and encourages a more efficient market. 92 Harv. L. Rev. at 1437.
The Allied decision in 1984, which relied on the articles cited above for its analysis to reject market price/contract price damages, has been sharply criticized. In Schneider, UCC Section 2-713: A Defense of Buyers’ Expectancy Damages, 22 Cal. W. L. Rev. 233, 266 (1986), the author stated that Allied “adopted the most restrictive [position] on buyer’s damages. This Article is intended to reverse that trend.” Schneider argued that by following section 1-106, “the court ignored the clear language of section 2-713’s compensation scheme to award expectation damages in accordance with the parties’ allocation of risk as measured by the difference between contract price and market price on the date set for performance.” 22 Cal. W. L. ReV. at 264.
Recently in Scott, The Case for Market Damages: Revisiting the Lost Profits Puzzle, 57 U. Chi. L. Rev. 1155, 1200 (1990), the Allied result was called “unfortunate.” Scott argues that section 1-106 is “entirely consistent” with the market damages remedy of 2-713. 57 U. Chi. L. Rev. at 1201. According to Scott, it is possible to harmonize sections 1-106 and 2-713. Scott states, “Market damages measure the expectancy ex ante, and thus reflect the value of the option; lost profits, on the other hand, measure losses ex post, and thus only reflect the value of the completed exchange.” 57 U. Chi. L. Rev. at 1174. The author argues that if the nonbreaching party has laid off part of the market risk (like Coop did) the lost profits rule creates instability because the other party is now encouraged to breach the contract if the market fluctuates to its advantage. 57 U. Chi. L. Rev. at 1178.
We are not persuaded that the lost profits view under Allied should be embraced. It is a minority rule that has received only nominal support. We believe the majority rule or the market damages remedy as contained in K.S.A. 84-2-713 is more reasoned and should be followed as the preferred measure of damages. While application of the rule may not reflect the actual loss to a buyer, it encourages a more efficient market and discourages the breach of contracts.
The majority rule further permits the parties to measure the expectancy of what might happen if the seller does not perform the contract. The buyer has an option at the beginning of the contract to take actions to protect against an uncertain future. The parties both know that the option is an election that can be exercised by the buyer to protect against future losses. This generates stability in the market by discouraging the seller from breaching the contract when the market fluctuates to his advantage. The rule is further in accord with the rule of statutory construction that a specific statute shall prevail over a conflicting general statute dealing with the same subject matter unless the legislature intended to make the general statute control.
For the reasons stated, we hold that the provisions of K.S.A. 84-2-713 provide the proper measure of damages in this case. We reject the holding in Allied that the provisions of section 2-713 of the Uniform Commercial Code (K.S.A. 84-2-713) are more of a statutory liquidated damages clause that conflicts with the goal of section 1-106 of the UCC (K.S.A. 84-1-106) to mandate the creation of an exception when a buyer protects itself from market price fluctuations through a contract with another.
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Larson, J.:
Duane L. Maze appeals his convictions for operating a vehicle while under the influence of alcohol, running a stop sign, failure to maintain a single lane of traffic, failure to have operable headlights, and failure to have headlights lit when required.
The factual background to this case is unremarkable. Maze had been to a party and had consumed some alcoholic beverages. He left the party late at night in his employer s vehicle. The alternator on the vehicle failed and Maze was driving the vehicle without the lights on when he was stopped for traffic infractions.
Maze contends the trial court erred in admitting into evidence the results of the field sobriety tests and a deficient breathalyzer test. Maze further argues that the admission of the breathalyzer test results placed him in double jeopardy and that, under the circumstances, he did not violate the traffic laws.
It was not reversible error for the trial court to admit the results of the field sobriety tests.
The crux of Maze’s first argument is that Sedgwick County Deputy W.R. Edwards was required to immediately give him his Miranda warnings because Edwards had no intention of allowing Maze to leave the place where he had been stopped. Edwards’ testimony specifically denied that Maze was in custody or. that he had made any decision to arrest Maze for driving while under the influence of alcohol and the other traffic offenses at that time.
Edwards detected a strong odor of alcobpl from Maze and noted that he walked in a stumbling, staggering fashion, and had difficulty maintaining his balance. Maze performed field sobriety tests consisting of the horizontal nystagmus gaze test, a one-legged stand test, a heel-to-toe test, and the recitation of the alphabet test. All of the tests were performed incompletely, inadequately, and in a manner indicating Maze was noticeably impaired.
At this point, Maze was advised that he was being placed in custody for possible driving while under the influence of alcohol plus the traffic violations, and he was given his Miranda warning.
Maze’s argument that the foregoing procedure violates his rights against self-incrimination under the Fifth Amendment because all the test results were “testimonial evidence” is without merit.
In State v. Faidley, 202 Kan. 517, 450 P.2d 20 (1969), the issue was whether defendant’s Fifth Amendment rights were violated by the admission at trial of a heel-to-toe balance test because a Miranda warning had not been given prior to defendant’s taking the test. The Kansas Supreme Court stated:
“While it has been held that the rule of Miranda begins to operate when an individual is taken into custody or is otherwise deprived of his freedom of action in any significant way [citation omitted], the issue of'this appeal hinges upon the scope of the privilege against self-incrimination'as contained in Section 10 of the [Kansas] Bill of Rights and the Fifth Amendment.” 202 Kan. at 520.
The court determined that
“compelling the defendant merely to perform the coordination or sobriety test on the highway for observation by the patrolman involved no compulsion of the accused to give evidence having testimonial significance. . . . There was no forced communication by the defendant to disclose any knowledge he might have ‘from his own mouth.’ ” 202 Kan. at 521-22.
In State v. Jones, 3 Kan. App. 2d 553, 555-56, 598 P.2d 192 (1979), our court held that: “[C]oordination tests performed on the highway after being stopped on suspicion of driving while under the influence of intoxicating liquor do not violate the defendant’s privilege against self-incrimination.”
There is merit, however, in Maze’s contention that his inability to recite the alphabet, which was evidence used against him at the time of the trial, is testimonial in nature and protected by his Fifth Amendment privilege against compulsory incrimination. In Pennsylvania v. Muniz, 496 U.S. 582, 110 L. Ed. 2d 528, 554-55, 110 S. Ct. 2638 (1990), a request made to Muniz to state the date of his sixth birthday was deemed testimonial and suppressed because it was given prior to a Miranda warning.
Although four Justices were of the view that the seven questions at issue constituted custodial interrogation regardless of the fact they were not intended to elicit information for investigative purposes, the Muniz Court determined Muniz’s answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age were admissible because “the questions [fell] within a ‘routine booking question’ exception” to Miranda. 110 L. Ed. 2d at 552. Chief Justice Rehnquist, joined by Justices White, Blackmun, and Stevens, concluded that Muniz’s response to the “booking” questions were not testimonial and, therefore, did not warrant application of the Fifth Amendment privilege. 110 L. Ed. 2d at 555.
The question regarding the date of Muniz’s sixth birthday was deemed testimonial because it explicitly or implicitly related to the assertion of a fact or belief where the suspect confronts the “trilemma” of truth, falsity or silence. 110 L. Ed. 2d at 549.
Justice Rrennan, in delivering the opinion of the Court, stated:
“Although the text [Fifth Amendment] does not delineate the ways in which a person might be made a ‘witness against himself,’ cf. Schmerber v. California, 384 U.S. 757, 761-762, n.6, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), we have long held that the privilege does not protect a suspect from being’compelled by the State to produce ‘real or physical evidence.’ Id., at 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826. Rather, the privilege ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.’ Id., at 761, 16 L. Ed. 2d 908, 86 S. Ct. 1826. ‘[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a “witness” against himself.’ Doe v. United States, 487 U.S. 201, 210, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988).” 110 L. Ed. 2d at 543-44.
“We have since applied the distinction between ‘real or physical’ and ‘testimonial’ evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), we held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police'so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a lineup reflected ‘compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.’ Id., at 222, 18 L. Ed. 2d 1149, 87 S. Ct. at 1926; see id., at 222-223, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (suspect was ‘required to use his voice as an identifying physical characteristic’). In Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967), we held that a suspect could be compelled to provide a handwriting exemplar, explaining that such an exemplar, ‘in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege’s] protection.’ Id., at 266-267, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. And in United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67 93 S. Ct. 764 (1973), we held that suspects could be compelled to read a transcript in order to provide a voice exemplar, explaining that the ‘voice recordings were to be used solely to measure the physical properties of the' witnesses’ voices, not for the testimonial or communicative content of what was to be said.’ Id., at 7, 35 L. Ed. 2d 67, 93 S. Ct. 764.
“Under Schmerber and its progeny, we agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a ‘testimonial’ response for purposes of the privilege.” 110 L. Ed. 2d at 545-46.
The Supreme Court did not explore the outer boundaries of what is “testimonial,” which leaves us' without ultimate authority in determining if the recitation of the alphabet is testimonial in nature.
Our research has failed to find any Kansas case directly on point on the issue of whether the constitutional privilege of self-incrimination is violated if a person stopped for a traffic violation is asked to recite the alphabet before a Miranda warning is given.
The United States District Court for the District of Kansas has recently been presented with the question of whether recitation of the alphabet during field sobriety tests violates the privilege against self-incrimination. The court found that it does not. Stange v. Worden, 756 F.Supp. 508 (D. Kan. 1991). The Stange court recognized that Muniz did not decide whether recitation of the alphabet was testimonial, 110 L. Ed. 2d at 553, n. 17, but reásoned recitation of the alphabet went beyond physical performance because it involved an audible and cognitive response. Judge Saffels held the task of reciting the alphabet, like counting aloud, required so minimal an assertion of fact that it strained constitutional analysis to find the response testimonial and protected under the Fifth Amendment. 756 F. Supp. at 510.
In Edwards v. Bray, 688 F.2d 91 (10th Cir. 1982), the petitioner had been stopped by a police officer and, when he appeared to be under the influence of alcohol, was asked to perform certain field sobriety tests, including recitation of the alphabet. After the performance of the tests was evaluated, the officer determined the petitioner was intoxicated, arrested him, and gave him a Miranda warning. The Tenth Circuit cited Miranda and Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), in ruling that there was
“no constitutional infirmity in the questions asked [the petitioner.] The questions were not ‘reasonably likely to elicit an incriminating response from the suspect’ in the sense condemned by Miranda and Innis; they were merely part of or incidental tó'the roadside sobriety test. '. . . [The officer] asked [the petitioner] tó recite the alphabet not to obtain testimony, but to test whether [the petitioner’s] memory was impaired.” 688 F.2d at 92.
The court concluded: .
“Certainly [the petitioner’s] inability to recite the alphabet . . . incriminated him . . . [but] [t]he questions asked here did not require the suspect to disclose his knowledge of his intoxication. Th’ey elicited tangible evidence of the physical condition of the suspect’s body. The responses were no more testimonial or communicative than a voice exemplar [citation omitted] or a blood sample. [Citation omitted.]” 688 F.2d at 92.
Several jurisdictions have held that requiring a suspect to recite the alphabet does not violate, the Fifth Amendment right against self-incrimination. See Oxholm v. District of Columbia, 464 A. 2d 113, 113-14 (D.C. 1983); Hughes v. State, 259 Ga. 227, 378 S.E.2d 853, 854, cert. denied 493 U.S. 890 (1989); People v. Bugbee, 201 Ill. App. 3d 952, 559 N.E.2d 554 (1990); McAvoy v. State, 70 Md. App. 661, 670, 523 A.2d 618 (1987); State v. Zummach, 467 N.W.2d 745, 746 (N.D. 1991).
Pennsylvania has found to the contrary, holding that recitation of the alphabet is testimonial and requires Miranda warnings before administration of the test. Com. v. Conway, 368 Pa. Super. 488, 497-500, 534 A.2d 541 (1987), ret., denied 549 A.2d 914 (1988).
Our court has stated: “ ‘[G]eneral On-the-scene'questioning of citizens in the factfinding process does not constitute' custodial interrogation requiring a Miranda warning.’ ” State v. Almond, 15 Kan. App. 2d 585, 586, 811 P.2d 529 (1991). Additionally, “Miranda warnings are required only where there has been Such a restriction on a person’s freedom as to render him or hér ‘in custody.’ ” State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990).
Although both State v. Bristor, 236 Kan. 313, 691 P.2d. 1 (1984), and Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (Í984), were Sixth Amendment cases relating to presence of counsel prior to or at the time of bipod testing, both contain references to giving Miranda warnings. In Standish, the Kansas Supreme Court stated:
“The Miranda safeguards apply regardless of the nature or sévérity' of thé offense for which the accused is suspected or arrested. Persons temporarily detained pursuant to an ordinary traffic stop are.not ‘in custody,’ and need not be given the warnings. But as soon as .the suspect is arrested or his or her ‘freedom of action is curtailed to a “degree associated with formal arrest,” ’ ” the Miranda safeguards become applicable and the warnings must be given. Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). Officer Buczinski followed the proper procedure in giving Standish the Miranda warnings as soon as Standish was substantially detained, arrested, or in custody.” 235 Kan. at 904.'
None of these Kansas cases answer the qiiestiori left unanswered by Muniz of whether recitation of the alphabet by a suspect is testimonial.
Officer -Edwards determiriéd Maze had schooling through the 10th grade, and Maze specifically said he knew his alphabet. Maze had been asked to take nine steps in performing the heel-to-toe test, and we cannot see how the recitation of the alphabet is materially different from the counting required in the performance of that test.- ■ <
We hold recitation* of thé alphabet is not testimonial in that it does not require a. suspect to communicate any personal beliefs or knowledge of facts..
This holding is consistent with our decision in State v. Leroy, 15 Kan. App. 2d 68, 72, 803 P.2d 577 (1990), where we held: “Only questions that require suspects to communicate any personal beliefs or knowledge of facts, meet the definition of communicative testimony that qualifies as custodial interrogation.”
The trial court did not err in admitting into evidence the results of the deficient breath test.
E>eputy Edwards certified to the State of Kansas that Maze failed to take a chemical test. Maze’s license was suspended because he did .nothing when the test was first offered, and he did not blow into the machine long enough to produce a sufficient sample when given a second opportunity. The second test, however, did produce a reading, albeit an unreliable one, which the trial court admitted into evidence. Maze claims the test result should have been suppressed.
K.S:A. 8-1006(aj states:
“The provisions of K'.S.A. 8-1005 and amendments .thereto shall not"be construed as limiting the introduction of any other competent evidence bearing .upon the question of whether or not the defendant was under the influence of glcohol or drugs, or both.” ,. ,
K.S.A. 8-1013(f) states: “Other competent evidence includes: . . . (2) readings obtained from a partial alcohol concentration test on a breath testing machirie.”
Deputy Edwards, testified the machine would process any sample given, but that a deficient sample would result in a reading lower than a sufficient one. Althorigh Maze merely puffed his cheeks arid did not produce a sufficierit sample, the one obtained did show a reading and was statutorily admitted into evidence. Maze’s coritention to the contrary is without merit. The'insufficient test may be considered "since it is specificálly allowed by statute.
The admission of the breathalyzer test did not place Maze in double jeopardy epen though his driver s license previously had been suspended for refusal to take the test.
Maze’s driver’s license previously had been suspended for his refusal to take the breathalyzer tests. He contends he was twice placed in jeopardy when he was thereafter prosecuted for driving while under the influence. This contention is without merit.
. The decision to suspend Maze’s driving privileges is an administrative action and not a criminal proceeding. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). "
Kansas courts have previously held .that imposition of administrative sanctions and criminal prosecutions are not prohibited under the double jeopardy clause. Collins v. State, 215 Kan. 489, 524 P. 2d 715 (1974).-
In State v. Quarles, 13 Kan. App. 2d 51, 761 P.2d 317, rev. denied 244 Kan. 740 (1988), we held double jeopardy did not apply to probation revocation proceedings since they are not essentially criminal in .nature. The Tenth Circuit Court of Appeals has held the combination of administrative punishment and criminal conviction does not amount to double jeopardy in violation of the Fifth Amendment. Hutchison v. United States; 450 F.2d 930, 931 (10th Cir. 1971). See also United States v. Hedges, 458 F.2d 188, 190 (10th Cir. 1972), which held: “[Ajdministrative punishment does not render-a subsequent judicial prosecution violative of the Fifth Amendment prohibition of double, jeopardy. ” Although in State v. Kelly, 14 Kan. App. 2d 182, 786 P.2d 623 (1990), we held that' suppression of evidence was the proper remedy when the defendant invoked and was denied his right to counsel in violation of K.S,A. 1987 Supp. 8-1001(f)(l)(E), there was no request for counsel here; therefore, Kelly has no application.
Most jurisdictions have specifically held that proceedings to suspend or revoke a drivers license are civil or administrative in nature and that a subsequent prosecution for driving while under the influence based upon the same events that led to the suspension or revocation does not amount to double jeopardy. Ellis v. Pierce, 230 Cal. App. 3d 1557, 1562, 282 Cal. Rptr. 93 (1991); Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987); Price v. Reed, 725 P.2d 1254, 1260 (Okla. 1986); State v. Conley, 639 S.W.2d 435, 436 (Tenn. 1982); Burrows v. Texas Dept. of Public Safety, 740 S.W.2d 19, 20-21 (Tex. App. 1987).
We also hold Maze’s contention that suspension of his driver’s license and conviction of driving while under the influence are multiple punishments for the same offense, prohibited by U.S. v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), is without merit. The facts in Halper are materially different from this action, and its holding is not authority for Maze’s contention.
The revocation of a driver’s license is part of a civil/regulatory scheme that serves a vastly different governmental purpose from criminal punishment. Our State’s interest is to foster safety by temporarily removing from public thoroughfares those licensees who have exhibited dangerous behavior, which interest is grossly different from the criminal penalties that are available in a driving while under the influence prosecution.
Exigent circumstances did not exist that would provide a defense to the traffic violations.
Maze claims his attempt to return a malfunctioning wrecker truck to Wichita should justify giving some latitude to a driver in his predicament. K.S.A. 21-3204 states: “A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” “ ‘Courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime.’ ” K.S.A. 21-3204, Judicial Council Notes. See City of Wichita v. Hull, 11 Kan. App. 2d 441, 444-45, 724 P.2d 699 (1986). Deputy Edwards observed Maze violating the traffic statutes charged. This contention has no merit.
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Elliott, J.:
In this personal injury action, it is alleged that Central Merchandise, Inc., d/b/a Super D Drugs, negligently dispensed prescription medication to Juanita D. Nichols which caused bone abnormalities in her subsequently born child, Dario Nichols. Juanita and Dario Nichols appeal the trial court’s granting of summary judgment in favor of Super D Drugs. We affirm.
The facts are not in serious dispute. During the first trimester of her pregnancy, Juanita Nichols developed a urinary tract infection. Dr. VandeGarde, aware of her pregnancy, prescribed Gantanol. Super D Drugs filled the prescription and Dario was later born without hands or feet.
The package insert for Gantanol stated:
“Warnings: Usage in pregnancy: The safe use of sulfonamides in pregnancy has not been established. The teratogenicity potential of most sulfonamides has not been thoroughly investigated in either animals or humans. However, a significant increase in the incident of cleft palate and other bony abnormalities of offspring has been observed when certain sulfonamides of the short, intermediate and long-acting types were given to pregnant rats and mice at high oral doses (7 to 25 times the human therapeutic dose).”
The trial court granted Super D Drugs summary judgment on the ground the pharmacy had no legal duty to warn either Juanita Nichols or Dr. VandeGarde of the information contained in the package insert.
Later, plaintiffs settled with the drug manufacturer and, two weeks into a jury trial, plaintiffs settled with all remaining defendants. Plaintiffs appeal only the summary judgment in favor of the pharmacy.
Summary judgment, of course, is appropriate where there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. K.S.A. 1990 Supp. 60-256; Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
These facts are not controverted: Dixie Wilson, the dispensing pharmacist at Super D Drugs, knew about the statement in the package insert, knew or suspected that Juanita Nichols was pregnant, did not consult with Dr. VandeGarde regarding the advisability of the drug, and did not inform Nichols of the statement contained in the package insert.
Since the existence of a duty on the part of the pharmacy is a question of law, see Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983), the matter was ripe for summary adjudication.
Adrhinistrative regulations define a pharmacist’s duties as reading and interpreting prescriptions, accurately filling prescriptions, affixing necessary labels, and “initiating oral patient consultation on new prescriptions as a matter of routine to encourage proper patient drug utilization and administration.” K.A.R. 68-2-20.
DNie Wilson attached warning labels to the prescription instructing Nichols to drink lots of water and avoid sunlight. This would seem to satisfy the requirement of encouraging proper utilization and administration of the drug. See K.S.A. 1990 Supp. 65-1637.
The only Kansas case we have found dealing with a pharmacist’s duty to warn of possible side effects is clearly distinguishable. See Fuhs v. Barber, 140 Kan. 373, 36 P.2d 962 (1934), where the doctor prescribed a lead-based ointment for treatment of a skin irritation. When plaintiff returned to the pharmacy for a refill, the pharmacist recommended a sulphur-based ointment of his own invention. Plaintiffs skin turned black from the reaction between the lead and sulphur. Our Supreme Court held the pharmacist had a duty to warn of the possible drug interaction. Fuhs v. Barber, 140 Kan. 373, Syl. ¶ 1.
In sharp contrast in the present case, Super D Drugs did not manufacture the Gantanol dispensed to Nichols and did not “push” or recommend its use.
Manufacturers of prescription drugs do have a duty to warn of dangerous side effects and risks associated with the drugs. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 409, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). Kansas has also adopted the learned intermediary doctrine, under which the manufacturer’s duty to warn is satisfied when the prescribing doctor is informed of a drug’s inherent risks. Humes v. Clinton, 246 Kan. 590, Syl. ¶ 5, 792 P.2d 1032 (1990).
As the learned intermediary between manufacturer and patient, the doctor must inform himself or herself of a drug’s characteristics and determine what facts should be told to the patient. 246 Kan. at 600-02.
In the present case, because the doctor is the learned intermediary between the manufacturer and the patient, the patient should rely on the doctor; the pharmacist, at least under the facts of this case, has no legal duty to warn the patient of potential consequences from the use of the drug prescribed by the doctor. See, e.g., Pysz v. Henry's Drug Store, 457 So. 2d 561 (Fla. Dist. App. 1984); Eldridge v. Eli Lilly & Co., 138 Ill. App. 3d 124, 485 N.E.2d 551 (1985); Ingram v. Hook's Drugs, Inc., 476 N.E.2d 881 (Ind. App. 1985); Kinney v. Hutchinson, 449 So. 2d 696 (La. App. 1984); Stebbins v. Concord Drugs, 164 Mich. App. 204, 416 N.W.2d 381 (1987); Makripodis v. Merrell-Dow Pharm., Inc., 361 Pa. Super. 589, 523 A.2d 374 (1987); McKee v. American Home Products, 113 Wash. 2d 701, 782 P.2d 1045 (1989).
We emphasize that Gantanol was not contraindicated for use during early pregnancy; the package insert merely stated its effect on a fetus had not been determined.
Because the decision to prescribe a specific drug involves an analysis of the patient’s unique condition and a balancing of the risks and benefits of a given drug, the cases extending the learned intermediary doctrine to pharmacists reason that imposing a duty to warn on the pharmacist would intrude on the doctor-patient relationship and would force the pharmacist to practice medicine without a license. See Eldridge, 138 Ill. App. 3d at 127. In addition, it would be both illogical and unreasonable to impose a greater duty on the pharmacist dispensing the drug than on the manufacturer of the drug. Ramirez v. Richardson-Merrell, Inc., 628 F. Supp. 85, 88 (E.D. Pa. 1986).
We agree with the Washington Supreme Court, which surveyed the jurisdictions extending the learned intermediary doctrine to pharmacists and concluded:
“The pharmacist still has a duty to accurately fill a prescription [citation omitted] and to be alert for clear errors or mistakes in the prescription. The pharmacist does not, however, have a duty to question a judgment made by the physician as to the propriety of a prescription or to warn customers of the hazardous side effects associated with a drug, either orally or by way of the manufacturer’s package insert.” McKee v. American Home Products, 113 Wash. 2d at 720.
In the present case, the pharmacist accurately filled Nichols’ prescription for Gantanol. There were no clear errors on the face óf the prescription, Gantanol was not contraindicated for use by Nichols, ánd Dr. VandeGarde’s decision to prescribe the drug was within the realm of his professional judgment.
Under the facts of this case, Super D Drugs and its pharmacist owed no duty to warn Juanita Nichols or the doctor. Summary judgment was proper.
We need not address the additional issues raised by the parties.
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Knudson, J.:
The Kansas Department of Revenue (KDR) appeals the decision of the district court setting aside the agency’s order suspending Raymond B. Lund’s driving privileges. The central issue on appeal is whether Lund refused to take a blood test. We reverse and remand with directions to reinstate the agency’s order.
The underlying facts are not in dispute. On March 11, 1989, Lund was arrested for driving while under the influence, in violation of K.S.A. 1988 Supp. 8-1567. The arresting officer took Lund to a local hospital for a blood test. Oral and written notices required under K.S.A. 1988 Supp. 8-1001(f)(l) were given.
Lund contended before both the administrative hearing officer and the district court that his reading of the notice led him to believe the arrestee, rather than the arresting officer, may select the test to be given. Lund testified at trial as follows:
“Q. I asked him — Well I said that, ‘This first line says that Kansas law says you can take one of three tests.’ And I said, ‘I’d like to take the breath test. ’
“A. And what’d he say?
“A. And he says, ‘No, you’re going to take the blood test.’ And I said, ‘Well, it says right here that you can take one of the three.’ And he said, ‘Are you going to take the blood test?’ And I says, 7 want to take a breath test.’ And then he asked me, ‘Yes or no? Are you going to take the blood test?’ And I said, ‘No, not if I can take a breath test.’ And he didn’t say anymore to me. He wrote something down and he thanked the nurse, and we left the hospital. I assumed we were going to take a breath test. I had every intention of taking that test.—
“A. —if I would have understood what was going on.”
Based upon the above responses by Lund, the arresting officer certified Lund’s refusal to submit to the requested blood test and, as a result, Lund’s driving privileges were suspended. Lund appealed to the district court and the court held Lund’s actions and statements did not constitute a refusal and set aside the suspension order.
Our standard of review is whether there is substantial competent evidence in the record to support the decision of the district court. Thus, we must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the district court and disregard conflicting evidence or other inferences. DeGraeve v. Southwestern Bell Tel. Co., 9 Kan. App. 2d 753, 756, 687 P.2d 1380, rev. denied 236 Kan. 875 (1984).
We apply, as did the district court, K.S.A. 1988 Supp. 8-1001 and 8-1002 in analyzing the issue. Kansas law provides that the arrestee shall be requested to submit to a blood, breath, or urine test. Selection of the test is by the arresting officer, not the arrestee. K.S.A. 1988 Supp. 8-1001(f)(l). It is further stated that it is not a defense that the arrestee did not understand the required written or oral notice. K.S.A. 1988 Supp. 8-1001(f)(3). If a test is requested by the arresting officer and results in refusal by the arrestee, suspension proceedings are put into motion. K.S.A. 1988 Supp. 8-1002. These provisions bring into sharp focus what should or should not be considered by a court in such cases as the one at hand.
An arguably implicit issue as to the reasonableness of Lund’s refusal has been previously considered by this court and held to be without merit. Woodhead v. Kansas Dept. of Revenue, 13 Kan. App. 2d 145, 765 P.2d 167 (1988). The word “refusal” is not defined by statute or by administrative regulation. However, there is a growing body of case law that is instructive.
In Standish v. Department of Revenue, 235 Kan. 900, Syl. ¶ 2, 683 P.2d 1276 (1984), the Supreme Court held: “A conditional response such as, T want to talk to my attorney (or parent or relative or friend or some other third person) first,’ is not a consent to take a breath or blood test. It is a refusal.” In In re Hamstead, 11 Kan. App. 2d 527, Syl. ¶ 1, 729 P.2d 461 (1986), this court stated: “A driver’s silence when requested to submit to a chemical test for alcohol content of blood may constitute an express refusal to submit to the test.”
In construing their implied consent law, other jurisdictions have held the consent to take a test must be both unqualified and unequivocal; otherwise, an individual is deemed to have refused. Webb v. Miller, 187 Cal. App. 3d 619, 626, 232 Cal. Rptr. 50 (1986) (“conditional consent to a test constitutes a refusal”); Clontz v. Jensen, 227 Neb. 191, 195, 416 N.W.2d 577 (1987) (“less than an unqualified, unequivocal assent . . . constitutes a refusal”); Wenger v. Com. of Pa., 107 Pa. Commw. 20, 23, 527 A.2d 1071 (1987) (“unequivocal consent” required).
The district court found Lund’s statements did not constitute a refusal. Based upon the above authorities and the evidentiary record before us, we conclude there is insufficient evidence to support this finding. Lund qualified his consent with the requirement that he be given the breath test if possible. The arresting officer specifically stated, “No, you’re going to take the blood test.” Lund persisted and the arresting officer deemed his continuing conditional responses to be a refusal. The officer was justified in concluding Lund did not give an unqualified and unequivocal assent to take the requested test and he properly certified a refusal.
We note the district court’s partial reliance on the failure of the arresting officer to re-explain the meaning of the statutory notice to Lund based upon his apparent misunderstanding as to who had the right to select the test to be given. “One of the more common rules of statutory interpretation is that the mention or inclusion of one thing implies the exclusion of others.” State v. Wood, 231 Kan. 699, Syl. ¶ 3, 647 P.2d 1327 (1982). The arresting officer had no statutory duty to make certain the arrestee understood the written and oral notices. Such a requirement would place an unreasonable burden upon law enforcement officers. Lund repeatedly gave qualified or equivocal responses to the arresting officer. At that point, there was a refusal and the officer was under no duty to give further explanation.
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Larson, J.:
Ivan L. Freeman appeals a jury verdict of $165,156.75 in favor of Carol J. Barkley for damages from whiplash injuries she sustained after the car in which she was riding was rear-ended by a car driven by Freeman.
Freeman’s primary issue on appeal is that the trial court erroneously instructed the jury it could consider whether Barkley’s injuries were aggravated by a later automobile accident, and, if so, she was entitled to additional compensation from Freeman.
Freeman also claims he was unfairly prejudiced by erroneous rulings, remarks concerning the evidence, and criticism of defense counsel in the jury’s presence. The final contention on appeal is that the trial court erred by overruling Freeman’s motion for directed vérdict, which allowed the jury to consider Barkley’s claim for loss of future earnings.
Evidence at trial' showed Barkley had' been involved in three automobile accidents. The first, in 1985, ’resulted in a slight pull in the neck muscles with a return to normalcy until the January 1989 accident, which is the subject of this litigation.
Barkley also was involved in an- automobile accident - in ■ November of 1989. Barkley testified she did not believe she was injured in that accident, but her physician; Dr. Jed Holmes, testified the subsequent accident did aggravate the injuries caused by Freeman in the January 1989 collision. ,
At the close of trial-..and over Freeman’s objection, the trial court, gave instruction No. 7, which states: ■
“In your evaluation of plaintiffs injuries occurring on January 13, 1989, you .may take into account whether or not those injuries were'aggravations of a pre-existing injury or condition.
“You may also take into account whether or not those injuries were aggravated by a later injury.
“If those before and after injuries did not affect plaintiffs condition arising from her injury of January 13, 1989, then you would of course, disregard them. - .
“If you decide the injury before created a condition or there was a preexisting condition which was aggravated by the present injury then the aggravation is to be compensated for as a part of your verdict-.
“If you decide the later injury prolonged the effects of or aggravated the plaintiffs injuries occurring on January 13, 1989, then plaintiff is entitled to be compensated as a part of your verdict.
“If you decide the later injury separately and independently from preexisting conditions and separately and independently from the injuries sustained on January 13, 1989, under' inquiry has made a separate; disability to plaintiff she is not entitled to compensation for that.
“The facts of an earlier and later automobile accident are not to be considered by you in any way in your determination of fault or liability. They aré admitted for the sole purpose of yoúr being able to consider whether or not injuries therein sustained contributed in any way to plaintiffs condition arising from injuries occurring on January 13, 1989.”
After Freeman’s post-trial motions, which essentially featured his continuing objection to instruction No. 7, were overruled, he filed this appeal.
Freeman contends the language contained in jury instruction No. 7 is erroneous because it makes him liable for the injuries incurred in a subsequent automobile accident resulting from another driver’s negligence and has the effect of allowing Barkley to recover from the later negligent driver as well.
Barkley argues Freeman is barred from asserting his contention because he failed to preserve the claims of comparative negligence and comparative causation in the pretrial order. Alternatively, Barkley argues instruction No. 7 is a proper statement of the law of proximate cause.
The issues identified in the pretrial order were the nature, extent, and cause of injuries, as is usual in a motor vehicle/ personal injury case.
The general rule is that “a pretrial order controls the subsequent course of the action unless modified to prevent manifest injustice.” State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 161, 747 P.2d 1326 (1987); see K.S.A. 1991 Supp. 60-216. When issues not raised or set forth in the pleadings are tried by the express or implied consent of the parties, following K.S.A. 60-215(b), the issues are treated as if they had been raised, even if a pretrial order is in effect. See Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 300, 440 P.2d 548 (1968).
During trial, it was obvious that issues had arisen concerning both the preexisting condition of Barkley, as well as aggravation of the injury which may have taken place as a result of the third accident. Barkley’s own counsel questioned her concerning the prior automobile accident and did not object when Freeman’s counsel questioned Barkley regarding the third accident. The medical evidence relating to Barkley’s conditions also was admitted without objection.
These issues were tried with the implied consent of both parties, and we will consider the contested instruction on appeal. See Kiser v. Gilmore, 2 Kan. App. 2d 683, Syl. ¶ 3, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979).
The standard of review of jury instructions was enunciated in Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986):
“It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. [Citation omitted.]”
Barkley contends instruction No. 7 is a proper statement of the law of proximate cause, while Freeman asks us to isolate our consideration to that one paragraph in instruction No. 7 that states:
“If you decide the later injury prolonged the effects of or aggravated .the plaintiff’s injuries occurring on January 13, 1989, then plaintiff is entitled to be compensated as a part of your verdict.”
Freeman contends this instruction makes him liable not only for aggravation of a preexisting condition, but also for all the consequences of another drivers negligence that occurred some 10 months after the incident which is the subject of this suit.
Barkley makes a proximate cause argument in her brief, citing Baker v. City of Garden City, 240 Kan. 554, 731 P.2d 278 (1987). She claims that the jury was correctly instructed because the following paragraph came after the paragraph in instruction No. 7 to which Freeman so ardently objects:
“If you decide the later injury separately and independently from preexisting conditions and separately and independently from the injuries sustained on January 13, 1989, under inquiry has made a separate disability to plaintiff she is not entitled to compensation for that.”
To this argument, Freeman counters that Baker v. City of Garden City involved different acts of fault for one accident, while in this case the injuries were caused by two distinct and different accidents.
Barkley also claimed at oral argument that Freeman failed to preserve this issue by not having the fault of the party causing the November 1989 injury compared because K.S.A. 1991 Supp. 60-258a encompasses anyone who causes the injury. Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988), was claimed to be authority for this contention, although the cite and argument were not raised in Barkley’s brief.
Finally, Freeman claims, if he is responsible for the consequences of some other driver’s negligence that happened 10 months later and the other tortfeasor is equally responsible for such injury and damages, this allows Barkley two recoveries for damages from the third accident while Freeman is entitled to no offset or contribution from the third-accident tortfeasor. Barkley responds to this argument by contending Freeman had the obligation to make the third-accident tortfeasor a party herein and have the contribution to liability of all the parties compared.
We find no direct Kansas authority on the issue of whether a defendant will be liable for the aggravation in a subsequent automobile collision for injuries the defendant caused a plaintiff in a prior automobile accident. Neither is there a PIK instruction that sets forth a proper instruction in cases like this.
It is clear in Kansas that “ ‘[o]ne who has a weakened or preexisting condition of the body and who is injured by the negligent act of another, is entitled to damages from the wrongdoer if the prior existing condition is aggravated or made more severe by reason of the negligent act of the wrongdoer.’ ” Rowe v. Maule Drug Co., 196 Kan. 489, 492, 413 P.2d 104 (1966); PIK Civ. 2d 9.43.
It is also clear that existing Kansas law imposes liability upon a tortfeasor causing the initial injury for any additional bodily harm resulting from normal efforts of third parties in rendering aid which the injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner. Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, Syl. ¶ 1, 510 P.2d 145 (1973). The cases setting forth this rule have historically involved a physician’s malpractice occurring in the treatment of the original injury. Paris v. Crittenden, 142 Kan. 296, 46 P.2d 633 (1935); Keown v. Young, 129 Kan. 563, 283 Pac. 511 (1930). The theory under which liability is continued in the initial tortfeasor. is that it is foreseeable that the medical treatment could aggravate the initial injury. Our legal issue then becomes one of whether the later accident is foreseeable or is the result of an intervening act or cause.
When issues are raised concerning the existence of an intervening cause, PIK Civ. 2d 5.03 should be given to the jury:
“If an injury arises from two distinct causes which are independent and unrelated, then the causes are not concurrent. Consideration then must be given to the question whether the causal connection between the conduct of the party responsible for the first cause and the injury was broken by the intervention of a new, independent cause which acting alone would have been sufficient to have caused the injury. If so, the person responsible for the first cause would not be liable for the injury. If, however, the intervening cause was foreseen or should reasonably have been foreseen by the person responsible for the first cause, then such person’s conduct would be .the cause of the injury, notwithstanding the intervening cause, and, he would be liable therefor.”
The objected-to instruction appears to contain wording from our pattern instruction on intervening causes as well as reference to preexisting and subsequent conditions. However, we must examine the proposed instruction along with all the other instructions and not with a narrow vision, as suggested by Freeman.
Any discussion of intervening causes in Kansas logically begins with Steele v. Rapp, 183 Kan. 371, 384, 327 P.2d 1053 (1958), which held:
“[T]he unintentional dropping of the bottle of volatile fluid, even if negligent of itself, does not relieve the defendant of his initial and primary liability for his negligence in placing in commerce a highly inflammable and explosive substance and failing to warn or advise users of the inherently dangerous character of the apparently innocuous substance sold and delivered to the beauty shop, when the defendant knew or should have known of its dangerous characteristics and should have reasonably apprehended that it would explode and burn if not handled with great care by employees of the beauty shop.”
The majority opinion cited Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), as an example of the divergent opinions of courts on the subject of proximate and remote cause, but set forth the generally applicable rules as follows:
“ . . [T]he rule that the causal connection between an actor’s negligence and an injury is broken by the intervention of a new, independent and efficient interviewing cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. [Citations omitted.] It has also been held that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third person may have contributed to the final result. See Crow v. Colson, 123 Kan. 702, 256 Pac. 971, 53 A.L.R. 457, where it was said:
“ ‘ “Where defendant knows or has reasonable means of knowing that consequences not usually resulting from the act are likely to intervene so as to occasion damages, he is liable although it be not an ordinary and natural consequence of the negligence.” ’ [Citation omitted.]” 183 Kan. at 377 (quoting Rowell v. City of Wichita, 162 Kan. 294, 303, 176 P.2d 590 [1947]).
The court went on to say:
' “ ‘. . . The question is not whether it was a possible consequence, but whether it was probable, thát is, likely to occur, according to the usual experience of mankind. That this is the true test of responsibility applicable to a case like this has been held in very many cases, according to which a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable. A high degree of caution might, and perhaps would, guard against injurious consequences which are merely possible; but it is not negligence, in a legal sense, to omit to do so.’ ” 183 Kan. at 378.
Although the question of whether a negligent act is the proximate, or efficient cause of an injury is one for the jury, the Steele court recognized if “two distinct, successive causes, unrelated in their operation, conjoin to produce a given injury the question of remote and proximate cause becomes one of law for the decision of the court, and not a question of fact for determination by a jury.” 183 Kan. at 383. See Cruzan v. Grace, 165 Kan. 638, Syl. ¶ 3, 198 P.2d 154 (1948); Richards v. Chicago, R.I. & P. Rly. Co., 157 Kan. 378, 384, 139 P.2d 427 (1943).
It was more recently stated in Finkbiner v. Clay County, 238 Kan. 856, 862, 714 P.2d 1380 (1986):
“An intervening act of negligence is one which actively operates in producing harm to another after the original act of negligence or omission has been committed. In determining issues of legal or direct cause, an intervening cause has been said to be material insofar as it supersedes a prior wrong as the direct cause of an injury by breaking the sequence of events between the original wrong and the injury received. One person’s negligence is not the proximate or direct cause of an injury where there is a new, sepárate, wholly independent, and efficient intervening cause of the injury and the loss. [Citation omitted.]”
The issue then becomes one of deciding if we can determine, as a matter of law, if the third automobile accident is a foreseeable event or if its occurrence is an efficient intervening cause. Without direct Kansas holdings, we look to similar fact situations decided by other states.
In Armstrong v. Bergeron, 104 N.H. 85, 178 A.2d 293 (1962), the court found the subsequent accident “intervened to break the chain of causation between the original injury resulting from the first accident in which defendant was involved.” The court concluded “[i]t was error for the Trial Court to submit to. the jury the aggravation of this injury by the second accident as -an element of damage which might be recovered against the defendant in the present action.” 104 N.H. at 86-87.
In Braunstein v. McKenney, 73 So. 2d 852, 853 (Fla. 1954), the Florida Supreme Court stated:
“The second accident took place as pláintiff was riding on á motor scooter on a heavily travelled street. The two accidents occurred about nine months apart, and the evidence was insufficient to show that the injury received in the first accident was the proximate cause of the second accident. Under such circumstances, the trial court should have determined, as a matter of law, that the defendants were not liable for the injuries sustained in the second accident and should have withdrawn from the jury a consideration of this question.”
Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566 (1971), .involved a second collision 11 months later in which plaintiffs initial injuries were aggravated, and it was deemed erroneous to make the party responsible for the injuries in the first accident liable for the entire disability.
Other cases similarly hold a defendant is not liable for the aggravation' in a subsequent automobile accident of a plaintiffs injuries caused by that defendant in a prior automobile accident. See Stevens v. Gulf American Fire & Casualty Company, 317 So. 2d 199 (La. App. 1975); Watkins v. Hand, 198 Neb. 451, 253 N.W.2d 287 (1977); Ortiz v. Mendolia, 116 App. Div. 2d 707, 497 N.Y.S.2d 761 (1986); Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158 (Wyo. 1989). See Annot., 31 A.L.R.3d 1000.
Freeman had no involvement in the November 1989 automobile accident. It was not a reasonably foreseeable result of his January 1989 negligent act. The third accident is not something which one would anticipate and consider likely to happen. We hold, as a matter of law, the November 1989 automobile accident was a separate, wholly independent act that is an efficient. intervening cause so as to break the causal chain of liability which commenced with defendant’s January 1989 negligence.
There are portions of instruction No. 7 that are propér legal statements, but the portion which makes Freeman responsible for the aggravation of the January 1989 injuries by the later automobile accident is clearly erroneous. This does not, however, automatically require reversal because we must consider the instructions as a whole and determine if the error was harmless or if the instruction so substantially correct that it could not have misled the jury.
The Kansas Supreme Court has held that an incorrect instruction must be presumed prejudicial unless the contrary is clearly shown and that an erroneous instruction on a material issue requires a reversal. Van Mol v. Urban Renewal Agency, 194 Kan. 773, 776, 402 P.2d 320 (1965); see Meyer v. Stone, 6 Kan. App. 2d 254, 256, 627 P.2d 1155, rev. denied 230 Kan. 818 (1981). The interaction of the three injuries were the material issues in the trial. We hold, after considering the instruction as a whole, the objected-to wording of instruction No. 7 is sufficiently erroneous and relates to critical issues in the trial so as to require reversal and the granting of a new trial.
Barkley’s argument that Mick v. Mani, 244 Kan. 81, interprets K.S.A. 1991 Supp. 60-258a to require Freeman to join the tortfeaisor who caused the November 1989 automobile accident is not persuasive for two reasons: First, it was not briefed to us and was raised for the first time on oral argument. Feldt v. Union Ins. Co., 240 Kan. 108, 112, 726 P.2d 1341 (1986). Second, although Mick v. Mani, 244 Kan. at 87-89, recognized the one-action rule was applied to successive causation and successive tortfeasors in Teepak, Inc. v. Learned, 237 Kan. 320, 329, 699 P.2d 35 (1985) (even though Teepak, the manufacturer of a claimed defective product, and Learned, the allegedly negligent treating physician, were not “strictly speaking, parties to the same occurrence”), here there are two distinctly different occurrences that took place 10 months apart which are not required to be the subject of one legal action.
Because a new trial is ordered, we need not reach the other issues on appeal that may or may not exist at the retrial, which we order to be held before a different judge.
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Gernon, J.:
Steven Smith appeals from the trial court’s ruling which terminated his parental rights with regard to M.D.S. Smith argues the trial court erred in concluding that there was clear and convincing evidence of his unfitness as a parent. More pre cisely, Smith argues that his incarceration prevented him from complying with and completing some or all of the parts of a reintegration plan and that his incarceration should not be used as a factor in determining whether he was unfit.
We disagree with Smith’s assertion and affirm the trial court’s termination of his parental rights.
M.D.S. was first found to be a child in need of care in October of 1986. At the time of that finding, M.D.S. was two years old. In March of 1987, a reintegration plan was presented and ordered by the court, which included Smith having an evaluation, developing stable income and housing, and providing the court with a child care plan and a budget. In January of 1988, the custody of M.D.S. wás given to the Kansas Department of Social and Rehabilitation Services (SRS), under an order of protective custody.
In October of 1989, an expanded reintegration plan containing the prior order was filed. In addition, the court ordered that Smith obtain sexual abuse therapy and that he have no contact with any of his children without prior approval. Finally, in February of 1990, SRS filed a motion to terminate the parental rights of Smith, which was heard in May of 1990.
The journal entry terminating parental rights contains the following:
“(4) That Mona Smith and Steven Smith have each failed to comply with the Court orders that were designed to effect rehabilitation and reintegration of the child into the parental home; therefore, reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family (K.S.A. 38-1583(b)(7)); Mona Smith and Steven Smith have each demonstrated a lack of effort to adjust his/her circumstances, conduct or conditions to meet the needs of the child (K.S.A. 38-1583(b)(8)); and Mona Smith and Steven Smith have each failed to carry out a reasonable plan approved by the Court directed toward the integration of the child into the parental home (K.S.A. 38-1583(c)(3)).
“(5) That Mona Smith and Steven Smith have each failed to maintain contact with [M.D.S.’s] therapist, the SRS caseworker, and the Court Services Officer; furthermore, Mona Smith and Steven Smith have each failed to maintain regular visitation or contact with [M.D.S.]; therefore,- Mona Smith and Steven Smith have each physically, mentally or emotionally neglected [M.D.S.] (K.S.A. 38-1583(b)(4)) and each has failed to maintain regular visitation, contact or communication with [M.D.S.] or with her custodian (K.S.A. 38-1583(c)(2)).
“(6) That, therefore, Mona Smith and Steven Smith are each an unfit parent by reason of conduct or condition which renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future (K.S.A. 38-1583(a)).”
Sufficiency of the Evidence
Smith argues the trial court erred by concluding that there was clear and convincing evidence of his unfitness as á parent and, therefore, that termination was appropriate under the facts presented to the trial court. K.S.A. 1991 Supp. 38-1583 contains criteria for determining whether parental rights should be terminated and provides in part:
“(a) When the child has been adjudicated to be a child in need of care., the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable futuré.
“(b) In making a determination hereunder the court shall consider, but is not limited to, the following, if applicable:
“(2) conduct toward a child of a physically, emotionally or sexually criiel or abusive nature;
“(4) physical, mental or emotional neglect of the child;
“(5) conviction of a felony and imprisonment;
“(7) reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family; and
“(8) lack of effort on the part of the parent to adjust the parent’s circumstances, conduct or conditions to meet the needs of the child.
“(c) In addition to the foregoing, when a child is not in the physical custody of a parent, the court, in proceedings concerning the termination of parental rights, shall also consider, but is not limited to the following:
“(2) failure to maintain regular visitation, contact or communication with the child or with the custodian of the child;
“(3) failure to carry out a reasonable plan approved by the court directed toward the integration of the child into the parental home; . . .
“In making the above determination, the court may disregard incidental visitations, contacts, communications or contributions.
“(e) The existence of any one of the above standing alone may, but does not necessarily, establish grounds for termination of parental rights. The determination shall be based on an evaluation of all factors which are ap plicable. In considering any of the above factors for terminating the rights of a parent, the court shall give primary consideration to the physical, mental or emotional condition and needs of the child.”
The Kansas Supreme Court recently discussed the appropriate standard of appellate review for termination cases in In re S.M.Q., 247 Kan. 231, 796 P.2d 543 (1990).
“The same standard of appellate review that is applicable for termination of parental rights in an adoption proceeding is applicable in this case. To terminate parental rights in an adoption proceeding, the duty of an appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the trial court’s findings. An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. It must review the evidence in the light most favorable to the party prevailing below. [Citations omitted.]” 247 Kan. at 234. (Emphasis added.) “The applicable scope of review for the appellate courts in a termination of parental rights case is not whether the record contains substantial competent evidence of a clear and convincing nature but whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit atld that parental rights should be terminated.” 247 Kan. at 240.
At the time of the termination hearing, Smith had five months yet to run on a one-year sentence in the Wyandotte County jail, having pled guilty to a charge of having sexually abused two of his male children. In addition, prior to January of 1989, Smith had served a sentence in prison for convictions of theft and robbery. After his release, sometime between January and July of 1989, Smith spent approximately two months residing in a halfway house. Shortly thereafter, his parole from a Missouri conviction was revoked, although he indicated at the termination hearing that he would not be required to serve any additional time on the Missouri sentence when he was released from the Wyandotte County jail.
“The district Court must find the parent unfit before parental rights may be severed. [Citation omitted.]” In re J.G., 12 Kan. App. 2d 44, 51, 734 P.2d 1195, rev. denied 241 Kan. 838 (1987). The Kansas Supreme Court recently noted: “The term ‘unfit’ is defined to include ‘[i]nherent mental and emotional incapacity to perform parental obligations [which] can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child.’ ” In re S.M.Q., 247 Kan. at 233 (quoting In re Penn, 2 Kan. App. 2d 623, 625, 585 P.2d 1072 [1978]).
Smith argues that his inability to complete his reintegration of the family and his inability to rehabilitate the family was due to his incarceration. He testified that his incarceration was the only factor preventing him from complying with the trial court’s order and stated that he would comply with the orders upon his release. Therefore, the crucial question for us is what effect, if any, does a parent’s incarceration have upon the trial court’s consideration of the factors contained in K.S.A. 1991 Supp. 38-1583?
Although no published decisions have directly addressed this issue, we can take guidance from the Kansas Supreme Court’s recent pronouncements in In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987).
The Kansas Supreme Court has considered the effect of a parent’s incarceration upon proceedings to permit adoption without the parents’ consent under K.S.A. 59-2102. In F.A.R., the court concluded “it was not error for the trial court to tcike into consideration the limiting aspects of appellee’s confinement in determining whether he had failed to assume his parental duties.” 242 Kan. at 236-37. In reaching this conclusion, the court reasoned:
“In considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered. 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. It is obvious that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts.” 242 Kan. at 236.
This court, in In re J.L.D., 14 Kan. App. 2d 487, 491, 794 P.2d 319, rev. denied 247 Kan. 704 (1990), concluded that a termination hearing may proceed without the presence of a parent incarcerated in another state. We reasoned that the absence of the incarcerated parent did not violate due process where the parent was represented by counsel and the incarcerating juris diction refused to release the parent for the hearing. 14 Kan. App. 2d at 488-91. Concerning incarcerated parents, we stated:
“The father was serving an extended term in prison and would not be available to render proper care for the child within the foreseeable future.
“Loss of parental rights is extremely important, but it should be weighed against the. loss by the child of the right to a prompt judicial determination of his status. A prisoner serving a lengthy prison term should not be able to use his due process rights to foreclose permanently any severance proceedings.” 14 Kan. App. 2d at 491.
Here,. Smith asks us to consider his incarceration to bé a mitigating factor which frustrated his ability to comply with a reintegration plan and, therefore, should not be used as a basis for termination.
Under the facts presented here, we reject Smith’s position for the following reasons: (1) The statutory scheme indicates imprisonment for a felony alone can justify termination of parental rights [K.S.A. 1991 Supp. 38-1583(b)(5)]; (2) a lengthy incarceration would make any substantial contact with a child, or the development of a relationship, very unlikely; (3) M.D.S., at the time of the termination hearing, was six years old, and for four of those six years the State had legal custody of her; (4) a termination proceeding involves a child’s best interests and parental fitness; and (5) a child’s best interests would not be served by requiring a delay in the proceedings whenever a parent ;s incarcerated.
We do recognize that, under some fact situations, incarceration should be considered as a mitigating factor for the following reasons: (1) Imprisonment does not require an automatic termination under the statute, although the anticipated duration of the incarceration may affect whether termination is justified under K.S.A. 1991 Supp. 38-1583(b)(5); (2) any holding that incarceration cannot be a mitigating factor would effectively render termination an automatic result of any lengthy incarceration, and perhaps any incarceration at all; and (3) the termination of parental rights involves fundamental constitutional rights, and a parent has a fundamental liberty interest in maintaining a familial relationship with his or her child. J.L.D., 14 Kan. App. 2d at 490.
Here, the trial court recognized that Smith’s incarceration on three separate occasions during the pendency of the proceeding, including a term in the penitentiary for robbery and theft, a violation of a Missouri parole, and a one-year term after a guilty plea to two counts of sexual battery, suggested a failure to adjust his conduct to his children’s needs. The trial court, noted that Smith has basically not had any contact with M.D.S. in four years, due largely to his incarceration. The record supports the trial court’s findings that “there is absolutely no bonding between [M.D.S.] and you [Smith].”
Given the record before us, we conclude that. Smith’s incarceration was considered by the court to be a negative factor and that the trial court did not err in rejecting Smith’s assertion that the incarceration should be considered a mitigating factor in his failure to comply with court orders concerning reintegration and his failure to properly conduct himself as a parent for M.D.S.
Affirmed. | [
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Per Curiam:
This is a workers compensation case. Respondent employer, Green-Glo Turf Maintenance, Inc., and its insurer, Farmers Alliance Mutual Insurance Company, appeal from the district court’s award of benefits to claimant Andrew Guebara.
The benefits awarded were computed on the premise that Guebara was a full-time hourly employee (K.S.A. 1990 Supp. 44-511[a][5]). Appellants complain that the district court’s implicit determination that Guebara was a full-time hourly employee was erroneous. Their position is that, on the facts and circumstances shown of record, none of which we need directly repeat, Guebara was a part-time hourly employee, not a full-time hourly employee.
As counsel confirmed to us at oral argument, the appellants do not raise sufficiency of the evidence as an issue on appeal. Rather, the single argument asserted is that the district court failed to correctly apply the statutory definitions of “part-time hourly employee” and “full-time hourly employee” in arriving at its determination that Guebara was a full-time hourly employee.
The controlling statutes are K.S.A. 1990 Supp. 44-511(a)(4) and K.S.A. 1990 Supp. 44-511(a)(5). The statutes set forth the defi nitions of “part-time hourly employee” and “full-time hourly employee,” respectively.
In accord with McMechan v. Everly Roofing, Heating & Air Conditioning, Inc., 8 Kan. App. 2d 349, 351, 656 P.2d 797, rev. denied 233 Kan. 1092 (1983), K.S.A. 1990 Supp. 44-511(a)(4) reads:
“The term ‘part-time hourly employee’ shall mean and include any employee paid on an hourly basis: (A) Who by custom and practice or under the verbal or written employment contract in force at the time of the accident is employed to work, agrees to work, or is expected to work on a regular basis less than 40 hours per week; [or] (B) who at the time of the accident is working in any type of trade or employment where there is no customary number of hours constituting an ordinary day in the character of the work involved or performed by the employee.” (Emphasis added.)
K.S.A. 1990 Supp. 44-511(a)(5) reads:
“The term ‘full-time hourly employee’ shall mean and include only [A] those employees paid on an hourly basis who are not part-time hourly employees, as defined in this section, and who are employed in any trade or employment where the customary number of hours constituting an ordinary working week is 40 or more hours per week, or [B] those employees who are employed in any trade or employment where such employees are considered to be full-time employees by the industrial customs of such trade or employment, regardless of the number of hours worked per day or per week.” (Emphasis added.)
Examination of the statutory text reveals that K.S.A. 1990 Supp. 44-511(a)(4) provides two alternative definitions of a part-time hourly employee. 8 Kan. App. 2d at 351. When speaking of those alternatives and the alternatives under K.S.A. 1990 Supp. 44-511(a)(5), we will roughly paraphrase the statutory language.
K.S.A. 1990 Supp. 44-511(a)(4) first defines a part-time hourly employee as an employee who by custom and practice or under his employment contract is expected to work on a regular basis less than 40 hours per week. This definition excludes an employee expected to regularly work 40 or more hours per week. See 8 Kan. App. 2d at 352.
K.S.A. 1990 Supp. 44-511(a)(4) alternatively defines a part-time hourly employee as an employee who is working in any type of trade or employment where there is no customary number of hours constituting an ordinary day in the character of the work involved or performed by the employee.
K.S.A. 1990 Supp. 44-511(a)(5) prescribes two alternative definitions of a full-time hourly employee. The first definition has two elements. It first defines a full-time hourly employee as an employee (1) who is not a part-time hourly employee, as defined by K.S.A. 1990 Supp. 44-511(a)(4), that is, the claimant does not come within either of the alternative K.S.A. 1990 Supp. 44-511(a)(4) definitions of a part-time hourly employee, and (2) who is employed in a trade or employment where the customary number of hours constituting an ordinary working week is 40 or more hours per week.
K.S.A. 1990 Supp. 44-511(a)(5) alternatively defines a full-time hourly employee as an employee who is employed in a trade or employment where employees such as the claimant are considered by industry custom to be full-time employees regardless of the number of hours worked per day or per week.
The alternative definitions of a part-time hourly employee, on one hand, and the alternative definitions of a full-time hourly employee, on the other, are mutually exclusive. 8 Kan. App. 2d at 350.
The sole exposition in the record before us of the district court’s reasoning for its implicit determination that Guebara was a full-time hourly employee is to be found in this partial text of the district court’s journal entry of judgment:
“[Guebara] was employed at $4.25 per hour to work 40 hours per week if weather permitted and sufficient work was available. It was not established that he was employed to regularly work less than 40 hours per week. That he worked less than 40 hours per week was due to the construction industry, a function of the weather and the availability of work on a particular job rather than as a provision of contract.”
With the statutes as background, we read the district court’s words to say this in essence:
1. Under Guebara’s employment contract, it was expected he would regularly work 40 or more hours per week.
2. Under Guebara’s employment contract, it was not expected he would regularly work less than 40 hours per week.
3. The fact that he actually worked less than 40 hours per week was not by reason of his employment contract.
We are persuaded that the district court’s journal entry language reflects that the trial judge’s reasoning for finding that Guebara was a full-time hourly employee was that, on the evidence, Guebara did not meet the definition of a part-time hourly employee as expressed in the first alternative under K.S.A. 1990 Supp. 44-511(a)(4). Accordingly, it seems the district court determined Guebara was a full-time hourly employee because he was not a part-time hourly employee.
The reasoning we attribute to the district court is flawed.
Although Guebara may not have been a part-time hourly employee because he did not come within the first alternative definition stated in K.S.A. 1990 Supp. 44-511(a)(4), it remained that the district court could have found that he came within the second alternative definition in K.S.A. 1990 Supp. 44-511(a)(4). The district court neither determined that Guebara came within the second alternative definition of a part-time hourly employee nor that he did not. That nondetermination undermines a determination that Guebara was a full-time hourly employee under K.S.A. 1990 Supp. 44-511 (a)(5).
A determination that a claimant was a full-time hourly employee under the first alternative definition stated in K.S.A. 1990 Supp. 44-511(a)(5) requires a predicate determination that the claimant was not a part-time hourly employee as defined by either K.S.A. 1990 Supp. 44-511(a)(4) alternative.
Although a determination may be made that a claimant is a full-time hourly employee under the second alternative definition provided by K.S.A. 1990 Supp. 44-511(a)(5) without finding the claimant was outside both K.S.A. 1990 Supp. 44-511(a)(4) definitions of a part-time hourly employee, it remains that it is required there be a showing that he was “employed in [a] trade or employment where [employees such as he] are considered to be full-time employees by the industrial customs of such trade or employment, regardless of the number of hours worked per day or per week.” The record reflects no direct or implied finding that such a showing was made or relied upon by the court.
The appellants suggest that we determine Guebara was a part-time hourly employee. We decline the invitation. In our view, the question whether a claimant was a part-time hourly employee or a full-time hourly employee is a mixed question of law and fact which properly should be resolved by the factfinder. Our role is limited to resolution of the question whether the facts established by sufficient competent evidence support the district court’s conclusion.
While it may be that the result will be the same, we conclude that we must reverse and remand this case to the district court for its reconsideration and redetermination of Guebara’s status as a full-time hourly employee or a part-time hourly employee in light of our observations herein. The benefits properly to be awarded will flow from that determination.
Reversed and remanded for further proceedings. | [
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Davis, J.:
Brigitte Jackson appeals from an order granting K-Mart Corporation summary judgment in this slip-and-fall tort action. She contends that the court erred in holding she was required to prove K-Mart had actual or constructive notice of a dangerous condition on the premises. We reverse and remand for trial.
Brigitte Jackson entered the K-Mart department store located in Manhattan, Kansas, as a business invitee for the purpose of shopping for children’s clothing. While walking down an aisle in the children’s clothing department, she slipped and fell near a round clothing rack. In the middle of the tile floor near the rack, there was an accumulation of a green liquid substance that was apparently avocado juice.
Jackson did not see the spilled juice, did not know how it got there, and did not know how long it had been there. After her fall, an unidentified K-Mart employee found a partially full can of avocado juice near the spill and told Jackson that she apparently had slipped on the substance. Later, Jackson overheard an unidentified K-Mart customer say a woman had passed through the children’s clothing department accompanied by a small child who was carrying a can of avocado juice. The customer surmised the child disposed of the can by placing it on the floor underneath the clothing rack.
K-Mart operates an in-store cafeteria and allows cafeteria patrons to remove food and drink from the cafeteria area and consume it on the shopping floor. Jackson testified that K-Mart sells small cans of avocado juice in the cafeteria.
On cross-motions for summary judgment, the parties agreed and the court found that no material issues of disputed fact precluded summary judgment on the issue of liability. The trial court found that, based on the undisputed facts, the spilled liquid on the defendant’s floor was not clearly traceable to K-Mart’s actions; therefore, plaintiff was required to prove actual, constructive, or inferred knowledge of the spill by K-Mart. Because the undisputed facts did not establish notice, the court held K-Mart wás not liable.
Jackson argues that because K-Mart allowed food and drink items from its in-store cafeteria to be carried into other sections of the store, she was not required to prove K-Mart had actual or constructive notice of the spilled juice. The condition existed, she argues, because of K-Mart’s mode of operation; the dangerous condition existed because the storekeeper allowed in-store cafeteria patrons to carry food and drink into the shopping floor area. She argues that the condition is therefore traceable to K-Mart and requires no proof of actual or constructive notice.
The often-stated rules regarding summary judgment and appellate review of summary judgment are:
“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.” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
“To oppose a motion for summary judgment, a party must actively come forward with something of evidentiary value to establish a material dispute of fact. It is not for the court to seek out, but for counsel to designate, that which supports a party’s position. A party whose lack of diligence frustrates the trial court’s ability to determine if factual issues are controverted falls squarely within the sanctions of Supreme Court Rule 141 [1991 Kan. Ct. R. Annot. 117].” Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 1, 739 P.2d 444 (1987).
Negligence is ordinarily a jury question, not a question for judicial resolution on a motion for summary judgment. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 622, 706 P.2d 476 (1985). Where reasonable persons could reach differing conclusions based on the same evidence, negligence should not be decided as a matter of law. Chambers v. Skaggs Companies, Inc., 11 Kan. App. 2d 684, 689, 732 P.2d 801 (1987).
The facts are not in dispute. The question before us is whether Jackson is required to prove that K-Mart had actual, constructive, or inferred notice of the dangerous condition on the premises. Our review of the trial court’s resolution of this question 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).
A business proprietor owes its customers a duty to keep the floors of the business in a reasonably safe- condition.
“The owner or occupant of premises -is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee’s safety. . i . The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonable [sic] safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence.” Graham v. Loper Electric Co., 192 Kan. 558, 561-62, 389 P.2d 750 (1964).
This duty is expressed as follows:
“[T]he obligation of reasonable care' is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The [proprietor] must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the [proprietor], but he must also act reasonably'to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property.” Prosser and Keeton, Law of Torts, § 61, 425-26 (5th ed. 1984).
On the other hand, the proprietor of a store is not an insurer of its customers. Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 497, 485 P.2d 1309 (1971); Chambers, 11 Kan. App. 2d at 687. Thus,
“[mjere proof of a dangerous condition on the property owner’s premises does not render the owner liable to the invitee for any accident that may occur therein; the mere fact that an invitee slips and falls on the floor of the inviter’s property does not raise an inference of negligence.” Chambers, 11 Kan. App. 2d at 687.
See Carter v. Food Center, Inc., 207 Kan. 332, 335, 485 P.2d 306 (1971); Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 33, 402 P.2d 767 (1965).
Kansas courts have stated that the grounds for a proprietor’s liability in a slip-and-fall case is the proprietor’s superior knowledge over that of its customers to know of any dangerous condition and its failure to warn customers of the potential risk. See Little v. Butner, 186 Kan. 75, 80, 348 P.2d 1022 (1960), and cases cited therein.
Traditionally, where the dangerous condition is not created through the active fault of the proprietor or its agents, the plaintiff must prove the proprietor had actual, constructive, or inferred knowledge or notice of the condition to establish liability. Carter, 207 Kan. at 335; Chambers, 11 Kan. App. 2d at 687. In contrast, where the customer’s injury is caused by dangerous conditions negligently created or maintained by the proprietor or its agents, the proprietor is deemed to have actual notice and it is not necessary for the plaintiff to show the proprietor had notice of the condition. Little, 186 Kan. at 81; Elrod v. Walls, Inc., 205 Kan. 808, 811, 473 P.2d 12 (1970). Thus, if the dangerous condition is traceable to the proprietor’s actions, proof of notice is unnecessary. See Carter, 207 Kan. at 335; Knowlès v. Klase, 204 Kan. 156, 157, 460 P.2d 444 (1969). See generally Annot., 85 A.L.R.3d 1000.
There is no evidence in the record to establish that K-Mart knew of the dangerous condition, or that the condition existed for such a period of time that K-Mart should have known about it in the exercise of reasonable care. Yet, there is evidence that the juice on the floor creating the very condition causing Jackson to fall and injure herself is traceable to K-Mart’s operation of its cafeteria. By not restricting the carrying of food and drink into the shopping areas of the store, K-Mart fostered the very risk that injured Jackson. While the spill arguably was the immediate result of the actions of a third party, the method K-Mart chose to operate its store raised a factual question of whether the risk to the customers was foreseeable. It is foreseeable that some customers would discard juice or beverage containers obtained from the cafeteria in other areas of the store and not in receptacles provided for such containers throughout the store. Based on this question of whether there was a foreseeable risk of harm to store customers, Jackson urges this court to adopt the “mode-of-operation” rule applied in other jurisdictions.
The mode-of-operation rule has been described as “the modern trend in slip and fall cases in self-service operations.” Ciminski v. Finn Corp., 13 Wash. App. 815, 821, 537 P.2d 850, rev. denied 86 Wash. 2d 1002 (1975).
While Kansas courts have not specifically adopted the mode-of-operation rule, they have recognized that certain modes of operation may require a higher degree of care by the proprietor. In Elrod v. Walls, Inc., 205 Kan. 808, the plaintiff slipped and fell on a lettuce leaf and possibly a grape. She could not prove the proprietor had actual notice of the condition, but circumstantial evidence indicated the items had been on the floor for such a period of time the jury could find the proprietor had constructive notice. 205 Kan. at 812-13. In discussing the proprietor’s mode of operation, the court stated:
“[W]hen produce is displayed in a self-service market and handled by customers, the storekeeper must take reasonable protective measures for the benefit of customers who might slip on debris dropped on the floor by a customer or employee and fall.
“When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor and if the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate.
“. . .A small store where customers are few would require little vigilance while a store with heavy traffic in the produce aisles might require almost constant attention.
“Vigilance of a storekeeper in keeping his floor clean must be commensurate with the risk involved.” 205 Kan. at 811-12.
While Elrod speaks in terms of mode of operation, the court stopped short of adopting the mode-of-operation rule and instead concluded the evidence was sufficient to prove constructive knowledge by the proprietor. 205 Kan. at 813.
The Kansas case most consistent with recognizing a theory of liability based on the proprietor s mode of operation is Little, where the plaintiff slipped on a meat sample. The defendant, Butner, entered into an agreement with Rath Packing Company which allowed Rath to demonstrate its meat products by handing them out to Butner’s grocery customers. Little alleged defendant and Rath were negligent in failing to take precautions to prevent customers from dropping meat on the floor, failing to provide adequate disposal methods of samples given to children, and failing to keep the floor clean in the area around the demonstration. Little appealed from the trial court’s decision sustaining demurrers to the petition because she could not prove the defendant had actual or constructive notice. The Supreme Court reversed, holding proof of notice was unnecessary because the dangerous condition was brought about, at least in part, by the defendants’ own actions. 186 Kan. at 82
"The dangerous condition here alleged was created and negligently maintained by the defendants in agreeing to, and carrying on, the demonstration in a manner which they knew, or with the exercise of reasonable care should have known, would render the premises unsafe. Where meat samples are handed out by a demonstrator to customers in a large super market as a means of acquainting the public with the product, it is not unreasonable to assume that parts of such samples will be dropped to the floor and stepped upon by customers and patrons making the floor slick, slippery and dangerous to walk upon. Due care, under such circumstances, would seem to dictate that receptacles or other means be provided for their disposal and that seasonable cleaning of the floor would be necessary. Negligence is alleged to inhere in the condition created and the fact that meat particles were dropped by customers and children of tender years is immaterial. The over-all condition was created by the defendants in carrying on the demonstration without taking the precaution, it is alleged, of providing suitable means for disposing of the samples and of cleaning the floor at seasonable intervals. Under such circumstances, the defendants breached their duty to the plaintiff in failing to warn her of the dangerous condition created. Whether the defendants should have reasonably anticipated that the handing out of meat samples to customers and children in the store would result in meat particles being dropped, making the floor slick, slippery and dangerous for the use of plaintiff and other customers, seems clearly to present a question for a jury.” 186 Kan. at 82.
The mode-of-operation rule generally allows a plaintiff to recover without showing the proprietor’s actual or constructive knowledge of the condition if the plaintiff shows the proprietor adopted a mode of operation where a patron’s carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it. See Tom v. S. S. Kresge Co., Inc., 130 Ariz. 30, 32-33, 633 P.2d 439 (Ariz. App. 1981); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966); Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485, 488 (Okla. 1982); Ciminski v. Finn Corp., 13 Wash. App. at 820-21.
An extensive discussion of the rule appears in Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987), which merits extended quotation.
‘[U]nder traditional negligence jurisprudence, a storeowner’s liability can not be premised simply upon a plaintiff s proof that a storeowner had notice that a dangerous condition was a possibility.
“The notice requirement adds to the substantial hurdles faced by plaintiffs injured by transitory hazardous conditions in a store. [Citations omitted], A person injured in a supermarket fall will rarely be able to trace the origins of the accident. . . .
“THE MODE-OF-OPERATION RULE
“Courts in Arizona and in other jurisdictions have mitigated this seeming inequity by developing the ‘mode-of-operation’ rule. The ‘mode-of-operátion’ rule looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiffs accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise. [Citations omitted.] In other words, a third person’s independent negligence is no longer the source of liability, and the plaintiff is freed from the burden of discovering and proving a third person’s actions. A plaintiff s proof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case — the existence of a dangerous condition and notice of a dangerous condition. This is neither a new nor radical principle. We have recognized, in other contexts, a businessman’s duty to anticipate the hazardous acts of others likely to occur on his property, e.g., Chernov v. St. Luke’s Hospital Medical Center, 123 Ariz. 521, 522-23, 601 P.2d 284, 285-86 (1979) (hospital not entitled to summary judgment when plaintiff alleged that accident in hospital parking lot was produced by hospital’s improper maintenance of traffic control signals); see also Restatement (Second) of Torts § 344 (‘A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . . , and by the failure of the possessor to exercise reasonable care to [protect the public]’).” Chiara, 152 Ariz. at 400.
Chiara reiterates that the rule only applies in cases where the proprietor can reasonably anticipate hazardous conditions will regularly arise, otherwise “the rule would engulf the remainder of negligence law.” 152 Ariz. at 400-01. In Chiara, the plaintiff slipped on some creme rinse which had been spilled on the floor of a self-service grocery store. Finding a jury question existed as to whether the proprietor could reasonably anticipate that sealed bottles of creme rinse were regularly opened and spilled, the court vacated the trial court’s order granting the defendant summary judgment. 152 Ariz. at 401.
In this case, K-Mart argues that adoption of the mode-of-operation rule would make proprietors strictly liable for a customer’s injuries when the customer slips and falls on a substance sold by the proprietor. We disagree. Proprietors would only be liable in a mode-of-operation case if they adopted a mode of operation which made recurring dangerous conditions reasonably foreseeable and failed to exercise reasonable care under the circumstances. See Chiara, 152 Ariz. at 401.
We are convinced that the mode-of-operation rule is a natural extension of Little and Elrod. Here, as in those cases, the plaintiff alleges that the proprietor engaged in conduct which contributed to the slippery condition on the floor, and it knew or should have known that its own conduct could lead to the dangerous condition. The theory of negligence asserted in each of these cases is slightly different than that alleged in the normal slip-and-fall case. Jackson’s argument focuses on the proprietor’s act of contributing to the condition and failing to take reasonable precautions to prevent accidents (such as preventing removal of food and drink from the store’s cafeteria and failing to clean the floor at necessary intervals), rather than alleging that the proprietor knew or should have known of the dangerous condition and failed to do anything about it.
Our research has disclosed a case that is virtually identical to the case at bar. In Tom v. S. S. Kresge Co., Inc., 130 Ariz. 30, the plaintiff slipped and fell on a clear liquid substance in the defendant’s department store. There was no direct evidence of how the liquid got on the floor, but an employee of the defendant surmised it was probably from a spilled soft drink. Kresge operated two counters in its store which sold soft drinks which patrons could carry around in the store while they shopped. 130 Ariz. at 31, 33. The plaintiff alleged Kresge was liable because: (1) of its mode of operation, (2) the condition existed for such a period of time Kresge had constructive notice, and/or (3) there was enough evidence of other careless general business practices that the jury could infer negligence despite plaintiff s inability to show Kresge had notice. The trial court granted Kresge’s motion for summary judgment on the basis that plaintiff could not prove notice.
The Arizona Court of Appeals reversed, ruling the facts warranted application of the mode-of-operation rule where the proprietor sells soft drinks and allows its patrons to carry the drinks around in the store. The court indicated the rule was applicable due to Kresge’s reasonable anticipation of the carelessness of its patrons under the circumstances. 130 Ariz. at 32, 33. The court also ruled that summary judgment was improper on the constructive notice theory because the record contained circumstantial evidence from which a jury could infer the spill had been on Kresge’s floor for some period of time. Accordingly, the court reversed and remanded the case for trial. 130 Ariz. at 33.
We find the rationale of Tom and the other mode-of-operation cases persuasive. Under this rule there remains a factual question: Whether K-Mart’s mode of operation made a recurring dangerous condition reasonably foreseeable and, if so, whether it failed to exercise reasonable care under the circumstances. Summary judgment was therefore inappropriate.
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Lewis, . J.:
The defendant appeals his convictions of rape and aggravated sodomy. As a result of these convictions, the defendant was sentenced to consecutive terms of 5 to 20 years on each charge, for an effective sentence of 10 to 40 years.
The defendant is a citizen of the United States but a native of Tunisia. He speaks English, along with five other languages. The victim, whom we shall refer to as J.C., is a quadriplegic, having been paralyzed from the neck down in a 1975 automobile accident. Both parties are relatively well educated and both are employed. The defendant, has attended the University of Paris. He testified he is fluent in. six languages and, at the time of the incident which gave rise to this prosecution, he was the sales manager for. Metagram of America,. Inc., which is an answering service with, a full message paging system.
J.C. is a graduate of.Emporia State University with a degree in English. She is employed by Harpo’s Bar Supply. Despite her physical limitations, J.C. is mobile. She drives her own specially equipped van and moves around outside of that van in a wheelchair. J.C. lives with her parents in Stanley, Kansas, and employs a nurse’s aide who comes to her home every morning to care for her hygiene and assist her in getting ready for work. J.C. is regularly employed and maintains an active social life.
The factual pattern presented appears to be illustrative of what is now commonly referred to as “date rape.” There i? no question but that the parties had a date, kissed in J.C.’s van,- and had sex in that van. J.C. testified that she told the defendant “no” on several occasions and that the sex was nonconsensual. The defendant, on the. other hand, admits that he had sex with J.C., but he said that it was conduct in which both parties were willing participants and that nothing was done without J.C.’s consent.
We will briefly summarize the events of the evening in question. Due to a prearranged understanding, J.C. and the defendant met at a bar in Overland Park, had some drinks, and engaged in general conversation. J.C. told the defendant some of the details of her physical condition, including the fact that, despite her limitations, she was able to have sex but could not have children. She explained to the defendant that, while she did not have much feeling from the chest down, she did have some dull sensation during sexual intercourse. The defendant told much the same story, although he indicated that J.C. told him of prior sexual experiences and was quite specific in explaining what she could and could not do.
After some period of time in engaging in conversation and drinks, the parties left the bar, and J.C. drove the defendant back to a parking lot where his car was,located. J.C. parked the van, and the parties kissed. Both agree that the kissing was consensual.
It is at a point during or after the kissing that the stories, become divergent. According to J.C., the defendant became increasingly amorous and demanding.. When the defendant sought to force himself on her, J.C. told him, “No, I have to go home,” on several occasions, to no avail. Ultimately, according to J.C., the defendant’s size and strength prevailed. He placed his penis in her mouth and finally engaged in nonconsensual intercourse with her. The defendant testified that both parties freely participated in the sexual activities that took place in the van and that J.C. never asked him to stop.
After thé events described, the defendant left thé van and returned to his áutomobile. J.C. then went home and, in order to prevent her mother from finding out what had taken place, she had her stepfather place her in bed fully clothed^
The evidence indicated that the morning after the rape, J.C.’s nurse’s aide noticed that J.C. had a cut on her tailbone and that she had bled through her underwear, her skirt, and onto the sheet. The aide'inquired what had happened to J.C., and J.C. told her that she had been raped, but she made her promise not to tell. J.C. also testified that, shortly after the rape, she called the rape crisis hotline and spoke with a rape counselor. J.C. and the rape counselor discussed the question of whether the rape should be reported. On March 8, 1989, two weeks after the alleged rape had taken place, J.C. contacted the police and told them she had been raped.
We are not the trier of fact, but it appears to us that this, was a very close and difficult case to resolve. The jury in this case deliberated for over 11 hours, after three days of testimony, and, at one time, the record indicates there was an eight to four vote in favor of acquittal. Ultimately, the jury convicted the defendant.
The defendant appeals, contending that he was deprived of a fair trial by the conduct of the trial judge. He also contends that he is entitled to a new trial on the grounds of newly discovered evidence. We agree with the defendant on his latter contention, and we reverse and remand for a new trial on those grounds. As a result, we do not reach the question concerning the conduct of the trial judge.
After the defendant’s conviction, a motion for new trial was filed. This motion came regularly on for hearing and was denied by the trial court.
The record reflects that, three or four days after the denial of the first motion for a new trial, the defendant’s attorney received an anonymous message on his answering machine. The caller advised counsel that he had read about the denial of the motion fór a new trial in the newspaper.. He went on to say that there were people who wanted to come forward but did not think there would be a conviction. The caller went on to say that there was information that counsel needéd to know, but he failed to disclose that information. The next day, that same person left another message on. counsel’s answering machine, disclosing the name and telephone number of Linda K. Rogers and saying, “This is a person that may know something about the case.” Defendant’s counsel took this information, located Rogers, interviewed her, and filed a motion for new trial on the basis of newly discovered evidence. Rogers’ testimony is that newly discovered evidence.
Rogers was called as a witness at the hearing on the second motion for a new trial. She testified that, while she did not know the defendant, she was acquainted with J.C. and considered her to be a friend. She also related that J.C. was a regular customer of the Martin City Pub, a bar in which Rogers worked. She testified that, on the day after the alleged rape, J.C. came to the Martin City Pub. J.C. advised Rogers that she needed to telephone “some foreign guy” whom she had gone out with the night before. The witness assisted J.C. in making this telephone call and testified she had a conversation with J.C. about the events of the night of the alleged rape:
“Q. . . . Do you recall, do you have a recollection of whether she described this individual as foreign or not?
“A. I’m positive that she said he was a foreign guy. I think that is the term she used. I remember foreign. I don’t remember exactly what else.
“Q. Okay. Thank you. Did she inform you of what she and this individual had done the prior night?
“A. She said that they had been on a date and that they had had sex in her van.
“Q. Did she describe it any further than that?
“A. Said that he had been rough with her and that it had lasted a long time and that she was tired, had gotten worn out. And I said, ‘Did you tell him to stop?’ And she said, ‘No.’
“Q. Did she indicate to you one way or the other about whether she was consensually having sex with this individual?
“A. I don’t think she said the word consensual, but she didn’t indicate that it was against her will.
“Q. Okay. Did she ever indicate to you that she had told him no, she didn’t want to have sex?
“A. No.
“Q. Is there anything else that you recall about her description of what happened that prior night?
“A. No.
“Q. Do you recall, did you assist her in using the telephone?
“A. Yes. More than once. Several times. I don’t remember if it was more than twice. At least a couple of times.
“Q. Was the purpose of that assistance to help her call this foreign individual?
“A. I didn’t know at the time, but then a little bit later when she was talking to me she said that she was trying to get ahold of the guy that she had been out with the night before because he was supposed to meet her.
“Q. All right. Did she say anything else about the purpose of her calling that individual?
“A. That she wanted to talk to him, that they were supposed to meet and she was trying to get ahold of him to see if, I think, they were still going to meet or go out or something.
“Q. Okay.
“A. She said that she wanted to talk to him about that night, the night before.
“Q. Anything further?
“A. No, no.”
On cross-examination, the following testimony was elicited:
“Q. Your testimony has been everything you could glean from the conversation with [J.C.] was that the sex was consensual?
“A. That is the impression I got.
“Q. Was it your impression that she wanted to go out with him again?
“A. Yes. That is the impression I got from what she told me.”
The trial court denied the motion for a new trial on the basis of Rogers’ testimony, stating as follows:
“THE COURT: The witness gave contradictory testimony as to when she last saw the victim in this case, so there may be some basis even for questioning the credibility of the witness. But again, that would not be in the Court’s opinion sufficient to determine the issues of the motion for new trial. The primary basis for determining this motion is a review of the testimony that would be proffered by Linda K. Rogers and how that relates to the trial testimony of the victim, and the Court finds that the proffered testimony does not contradict the testimony of the victim in any material manner, but for the most part corroborates her testimony. The evidence proffered by the witness Rogers can’t under any stretch of the imagination be construed as such materiality that it would be likely to produce a different result.
“THE COURT: The Court first finds, first of all, that the evidence was not obtained because there is not diligence in hunting for it. It was available, could have been found, but the defense was not diligent in getting it. Secondly, there is a question of credibility which I have mentioned, and thirdly the Court finds that the testimony proffered would not under any circumstances be sufficient to justify the granting of a new trial and is not considered by the Court to be of such materiality that it would be likely to produce a different result upon retrial. Accordingly, the motion must be and is hereby denied.”
The rules governing motions for granting a new trial on the grounds of newly discovered evidence are well settled. Recently, in Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988), the Supreme Court reiterated the rules which govern this issue.
“The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)”
It is also well settled that, when the newly discovered evidence merely tends to impeach or discredit the testimony of a witness, a new trial will hot be granted. Baker, 243 Kan. at 11. See State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978).
We have reviewed the record and have reviewed the action of the trial court in the light of the authorities cited above. Our conclusion is that the trial court abused its discretion in denying defendant’s motion for a new trial.
First of all, we believe the evidence was clearly material and, under the facts presented, the testimony of Linda K. Rogers could very likely produce a different result. In reaching this conclusion, we note that the' consent of the victim was a very close question with which the jury obviously agonized for several hoúrs. We cannot predict with certainty the impact of Rogers’ testimony upon the jury. However, based upon' our review of the record, we believe that it is not unreasonable to conclude that it would have had a significant impact upon the jury’s consideration.
In State v. Baker, 243 Kan. at 12, the Kansas Supreme Court adopted a new definition of materiality as it relates to newly discovéred evidence. That definition was Set out in the United States Supreme Court decision of United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). In that decision, the United States Supreme Court stated: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, thé result of the proceeding would have been different. A ‘reasonáble probability’ is a probability sufficient to undermine confidence in the outcome.”
We have concluded that a reasonable probability exists that, had Rogers’ testimony been heard by the jury, the result of the proceeding would have been different.
Rogers’ testimony goes to the very heart of the prosecution. The only question in this case was whether the sex in the van between J.C. and the defendant was consensual. If one believed the testimony of J.C., it was not consensual. If one believed the testimony of the defendant, it was consensual. The testimony of Rogers directly contradicts the testimony of the victim on the issue of whether the activities ift the van were consensual. We have reviewed the record and J.C.’s testimony that on several occasions she told the defendant to stop, that she told him “no,” and that she told him that she needed to return home. Rogers’ testimony directly contradicts the victim in this regard. According to Rogers, J.C. never advised the defendant to stop; she did not tell him “no”; and she did not tell the defendant that she did not want to have sex. This testimony, along with the other testimony of Rogers on cross-examination, is certainly material; it goes to the very heart of this prosecution, and a jury should determine its ultimate effect.
We hold that Rogers’ testimony was material in every aspect, and there is a reasonable probability that this testimony,, had it been presented to the jury, might have resulted in a different outcome. Under these circumstances, we are unwilling to see the. defendant serve from 10 to 40. years in the penitentiary when there is evidence which might very well exonerate him but is withheld from the trier of fact on the basis of a technical interpretation of the law.
We also disagree with the trial court’s conclusion that defense counsel did not use reasonable diligence in discovering this evidence. Our reading of the record indicates that defense counsel used the utmost diligence in seeking to uncover any and all relevant evidence.
The record shows that, in preparing for the defense, counsel did the following: (a) He used defendant’s answering or paging service to find out that J.C. had called the defendant on the day after the alleged rape; (b) he used computer printouts from the paging service to trace the phone numbers and find out where J.C. had called defendant from; (c) he followed the trace to the Martin City Pub and made a personal visit to the Martin City Pub to inquire if anyone knew J.C. or anything relevant to the crimes charged against the defendant; (d) he testified that, in asking the people at the pub if they knew or heard anything, no one would talk to him, and this was particularly true after they found out he was the defense. attorney. It seemed as if these witnesses may have known something but were simply not willing to cooperate; (e) he went to a bar called the Upper Deck and inquired; (f) he went to a bar called Houlihan’s and inquired; (g) he went to an establishment known as Applebee’s and inquired; and (h) he went to an establishment known as Dundee’s and inquired.
Despite all of his diligence, counsel was unable to find anyone who was willing to discuss the alleged rape with him or to reveal to him names of individuals who may have had relevant information. It appears to us that defense counsel exhausted every lead he could possibly think of. The individuals at the Martin City Pub who had the information simply refused to talk to him. He did everything he could do, certainly within the definition of reasonable diligence. We conclude that the trial court erred in holding that defense counsel did not use reasonable diligence in attempting to discover the evidence presented as a basis for a new trial.
Our review of the record does not reveal that credibility is an issue that we must resolve. The trial judge, in his review of the evidence, indicated that there was some question of credibility, but that the issue of credibility was not the basis for his refusal to grant a new trial. We have reviewed the record in the light of the trial judge’s finding and agree with him that there was not sufficient evidence to indicate that a lack of credibility would be a sufficient basis for denying the motion for a new trial.
Based upon our review of the entire record in this matter, we have no choice but to reverse the trial court and order that a new trial be granted to the defendant on the grounds of newly discovered evidence.
In view of our decision on the motion for new trial, the other issues presented by the defendant are moot, and we do not reach them. We note that the trial judge in this case has since retired, and the retrial will be conducted before a different judge.
Reversed and remanded. | [
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Briscoe, C.J.:
John Steven Everett appeals the district court’s dismissal of his petition for review of an order of the Kansas Civil Service Board which affirmed his termination from employment with the Kansas State Reception and Diagnostic Center (SRDC). Everett also appeals from the district court’s conclusion that it could not order the expenditure of state iunds for preparation of a transcript or hold a reporter in contempt for failing to provide a transcript.
After Everett petitioned the district court to review the Board’s action, a dispute arose between the parties over who should pay for the transcript of the hearing before the Board. Everett was unemployed and contended he was without funds to pay for the transcript. The Department of Administration, under which the “budgeting, purchasing and related management functions of the board” are administered (K.S.A. 75-2929b), argued it had no responsibility to pay for the transcript. The court initially ordered the Department to prepare the transcript of the hearing but later stated it was without authority to order expenditure of state funds for payment of the transcript. The court also refused to hold the court reporter in contempt when she refused to prepare the transcript without prepayment. Without a transcript of the hearing, the court could not review the case on its merits. The case was ultimately dismissed for lack of prosecution.
Everett contends the district court erred in denying his request that the Department be ordered to pay the cost of a transcript from the hearing before the Board.
Under the Act for Judicial Review and Civil Enforcement of Agency Actions (K.S.A. 77-601 et seq.), an agency is to transmit a transcript of its record to the court within 30 days after service of the petition for judicial review. The cost of preparation of the transcript shall be paid by the appellant, unless otherwise ordered by the court. K.S.A. 77-620.
Pursuant to K.S.A. 77-602(a), the term “agency” as used in the Act refers to a state agency. A state agency includes any board “of this state which is authorized by law to administer, enforce or interpret any law of this state.” K.S.A. 77-602(k). K.S.A. 75-2929d authorizes the Board to hear appeals concerning dismissal of permanent employees in the state classified service.
“The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Fanners State Bank of Ingalls v. Friesen, 15 Kan. App. 2d 132, Syl. ¶ 1, 803 P.2d 1049 (1990).
This court must construe the sentence: “Unless otherwise ordered by the court, the cost of the preparation of the transcript shall be paid by the appellant.” K.S.A. 77-620(b). This sentence gives courts authority to relieve appellants of the burden of paying for transcripts. The language does not expressly preclude courts from ordering agencies to pay transcript costs. The district court erred in concluding it could not order the Department to pay the cost of producing a transcript. As the district court has the option of ordering the Department to pay the transcript costs, the court in this case abused its discretion in dismissing Everett’s petition without first deciding whether the Department should pay for the transcript.
Everett also argues the district court erred in concluding it could not hold the court reporter, Nora Lyon & Associates, in indirect contempt for failing to provide a transcript prior to receipt of payment for the transcript.
K.S.A. 20-1204a(a) allows a court to order a person to appear and show cause why such person should not be held in contempt “if there is filed a motion requesting an order to appear and show cause which is accompanied by an affidavit specifically setting forth the facts constituting the alleged violation.” Contempt proceedings founded in statute must follow prescribed procedures and are strictly construed against the movant. Only the accused may waive statutory requirements. In re Seelke, 235 Kan. 468, Syl. ¶ 1, 680 P.2d 288 (1984).
The record does not reveal that Everett filed a motion requesting an order to appear and show cause or an affidavit as required by 20-1204a(a). The district court indicated Everett’s attorney requested instigation of contempt proceedings in a letter directed to the court. Everett’s allegations must fail in light of his failure to comply with 20-1204a(a).
Everett contends the court’s dismissal of his petition deprived him of his constitutional right to due process. “States are under no obligation to create property rights in their employees’ employment through enactment of civil service legislation. However, once a state has elected to do so, due process rights attach.” Darling v. Kansas Water Office, 245 Kan. 45, 49, 774 P.2d 941 (1989). “Basic elements of procedural due process of law are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. [Citation omitted.]” Peck v. University Res idence Committee of Kansas State Univ., 248 Kan. 450, 467, 807 P.2d 652 (1991).
Our examination of the record suggests no violation of Everett’s due process rights. The director of SRDC sent notice to Everett of the agency’s intent to terminate his employment. Everett was provided the opportunity to meet with the director. Although Everett did not take advantage of this opportunity, he did avail himself of the right to a hearing before the Board. Everett apparently believes that due process also requires the State to pay for the transcript should he seek review of the Board’s order. Although the district court may relieve an appellant of the cost of providing a transcript pursuant to 77~620(b), such relief is not mandatory to satisfy due process requirements.
Everett contends he is entitled to compensation for all attorney fees resulting from the Board’s failure to provide a hearing transcript. This contention would encompass fees expended while this case was pending before the district court. The record indicates that Everett failed to request attorney fees at the district court level. Failure to raise an issue below precludes raising the issue on appeal. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 671, 809 P.2d 1216 (1991). Everett’s recently filed motion for fees and expenses expended in pursuing this appeal will be addressed in a separate ruling by this court.
Affirmed in part, reversed in part, and remanded with directions to reinstate Everett’s petition for judicial review. The district court is also directed to exercise its discretion pursuant to 77-620(b) to determine whether Everett or the Department should pay the transcription costs. | [
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Brazil, J.:
Robert Rison appeals the district court’s denial of his motion to dismiss a suit for damages filed by Church Mutual Insurance Company (Church Mutual). Church Mutual sought and Rison was ordered to pay $24,791.02 with interest. Rison contends this civil action is barred by the statute of limitations. We agree and reverse.
The facts are not in dispute. In 1984, Rison was charged with, pled guilty to, and was convicted of embezzling $26,031.02 from a nursing home while employed there as an administrator. He was placed on probation and ordered to pay back the $26,031.02 in restitution. Over the next five years until his discharge from probation in 1990, he paid $1,240 in restitution.
Several months after Rison’s discharge from probation, Church Mutual filed suit, pursuant to its subrogation interest relating to its insured, the nursing home, to recover the balance of the embezzled funds, $24,791.02. Rison filed his answer, denying any obligation on the indebtedness and contending the statute of limitations had run. Rison’s subsequent motion to dismiss was denied following a hearing.
Church Mutual moved for summary judgment, which was granted. The basis for the court’s ruling was a Louisiana appellate court decision holding that payment of criminal restitution tolls the statute of limitations for purposes of a subsequent civil action. The district court held the statute of limitations had not run during the time Rison made criminal restitution payments.
Rison contends the civil action brought by Church Mutual is barred by the statute of limitations. Rison contends the court erred in holding that Rison’s payments of criminal restitution tolled the applicable statute of limitations for purposes of this civil action.
In his motion to dismiss, Rison contended that either K.S.A. 60-511 or K.S.A. 1990 Supp. 60-513(a)(4), the five-year and two-year statutes of limitation, applied under the facts of this case. He contended that when Church Mutual filed suit, over five years had elapsed since Rison’s restitution payments began; consequently, Church Mutual’s cause of action was time barred. The district court rejected that contention. The court then granted summary judgment for Church Mutual, based largely on National Food Stores of La., Inc. v. Chustz, 385 So. 2d 374 (La. App. 1980).
Factually, Chustz is similar to the present case. Leroy Chustz was employed by National Food Stores (National) when an audit revealed a cash shortage of $24,960.21. 385 So. 2d at 375. Chustz pled guilty to theft and received a suspended sentence conditioned in part on his payment of $6,000 in restitution. Chustz made monthly payments of $100 from December 1971 until December 1976. The court emphasized that Chustz also made a $200 payment to National on September 23, 1977. 385 So. 2d at 375. On August 4, 1978, National filed a civil suit for the balance allegedly due. The court cited the pertinent Louisiana statute which allows a sentencing court to impose conditions on probation resulting from the suspension of the execution of a criminal sentence. The court may order the party to “ ‘[m]ake reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court. 3 La. Code Crim. Proc. Art. 895(6).’ ” 385 So. 2d at 376. The court determined that the above-quoted statute “is clear in its import that the payment [restitution] is not in the nature of a fíne but rather in the nature of a damage payment” as would be recoverable in a civil proceeding. 385 So. 2d at 376. The court continued that restitution is a condition of the suspended sentence, not a substitute for the sentence. The court concluded by holding that restitution payments as a condition of a suspended criminal sentence “have the effect of interrupting prescription in a civil claim for damages.” 385 So. 2d at 376. In the present case, Church Mutual contends the district court appropriately relied on Chustz.
Although Chustz is factually similar to the present case, there is other case law which suggests a holding contrary to Chustz. The Wisconsin Court of Appeals has held that payments made pursuant to an order of restitution from a conviction of embezzlement do not toll the statute of limitations for a civil cause of action. H.A. Freitag & Son, Inc. v. Bush, 152 Wis. 2d 33, 447 N.W.2d 71 (1989), is, like Chustz, factually very similar to the present case. Freitag employed Bush as a bookkeeper. Freitag discovered in 1981 that over $30,000 had been embezzled from corporate funds. In September 1982, Bush was sentenced following her conviction on embezzlement charges. Bush was placed on probation for five years and ordered to pay restitution. When Bush’s probation terminated, a substantial portion was still due under the restitution order. Freitag filed a civil suit to recover the unpaid amount. 152 Wis. 2d at 35. Bush contended the statute of limitations began to run when Freitag knew of the theft. The court determined otherwise, holding that the statute commenced to run only when Freitag knew Bush was the person responsible for the theft. 152 Wis. 2d at 37-38. The court determined, for purposes of its order to reverse and remand, that payments made pursuant to court-ordered restitution do not constitute advance payment of damages and thus cannot be used to extend the statutory limitation period for a civil suit. 152 Wis. 2d at 40.
Other courts, though not concerned with the specific tolling issue present in this case, have determined restitution is inherently different than a civil award. See Thorne v. Gay, 92 Or. App. 251, 254, 758 P.2d 380 (1988) (Restitution is a criminal sanction and is not intended to be the equivalent of a civil award. State restitution statutes do not limit or impair the right of a person injured by a defendant’s criminal activities to sue and recover damages from the defendant in a civil action.); State v. Smith, 99 N.C. App. 184, 186-87, 392 S.E.2d 625 (1990) (“Restitution, imposed as a condition of probation, is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant for the purpose of avoiding the serving of an active sentence. [Citation omitted.] Such án imposition of restitution ‘does not affect, and is not affected by, the victim’s right to institute a civil action against the defendant based on the same conduct.’ ”).
The foregoing authority, including Freitag & Son, seems to be more consistent with Kansas law. Whereas Chustz found restitution to be more in the nature of a civil award for damages, Kansas courts seem to hold restitution is not comparable to a civil awárd. This court has stated: “We do not mean to imply that the same rigidness and proof of value that lies in a civil damage suit applies in a criminal case. Legislative intent is that restitution' should make victims whole and provide both deterrents and rehabilitation to the person who commits the crime.” State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989).
Church Mutual contends that public policy and judicial economy support the district court’s holding. The company asserts that it would have been to no avail to attempt to satisfy a civil judgment while Rison was already paying the maximum amount he could afford under the restitution order. That contention runs contrary to the rationale supporting statutes of limitation.
Statutes of limitation manifest the state’s legitimate interest in preventing stale claims. Brubaker v. Cavanaugh, 741 F.2d 318, 321 (10th Cir. 1984). Such statutes encourage diligence on the part of those whose rights have been infringed. Welch v. City of Kansas City, 204 Kan. 765, 771, 465 P.2d 951 (1970). Church Mutual could have filed its civil claim within the statutory period, obtained a judgment, and then executed that judgment upon Rison’s discharge from probation. Church Mutual’s contention that its delay is supported by concerns of public policy and judicial economy runs counter to the rationale supporting the creation of statutes of limitation. “[Statutes of limitation embody important public policy considerations in that they stimulate activity, punish negligence, and promote repose by giving security and stability to human affairs.” 51 Am. Jur. 2d, Limitation of Actions § 18.
There is nothing in Kansas law which limited or impaired the right of Church Mutual to timely bring suit against Rison. The company’s failure to act within the statutory time limitations bars this action.
Church Mutual next asserts Rison is equitably estopped from raising the statute of limitations as a defense. The company’s contention is misplaced.
The doctrine of equitable estoppel is based on the principle that “a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right do so under all the circumstances, has in good faith relied thereon.” Hustead v. Bendix Corp. 233 Kan. 870, 873, 666 P.2d 1175 (1983). Among the elements necessary to apply equitable estoppel, Rison must be shown to have committed inequitable conduct. Bowen v. Westerhaus, 224 Kan 42, 45-46, 578 P.2d 1102 (1978). While Rison is guilty of embezzlement (theft), it is not the underlying crime to which such a requirement refers. The inequitable conduct must cause the delay in filing the civil complaint and not relate to the underlying claim. Church Mutual has provided no facts that would indicate Rison in any way acted to induce Church Mutual to delay its civil cause of action. Rison’s inability to discharge the court-ordered restitution fails to constitute inequitable conduct necessary to invoke equitable estoppel.
Finally, Church Mutual contends that Rison’s restitution payments constitute advance or partial payments pursuant to K.S.A. 40-275, and that, as such, the statute of limitations does not begin to run until the last restitution payment is made. Therefore, Church Mutual argues, the statute of limitations should commence to run on August 8, 1990. K.S.A. 40-275 reads in part:
“No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person of medical expenses, loss of earnings and other actual out of pocket expenses, because of an injury, death claim, property loss or potential claim against any person, firm, trust or corporation, shall be admissible into evidence as an admission against interest or admission of liability by such party or self insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event. . . . Provided further, That the period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder.”
This court has determined that in order to implicate the statute tolling provision of K.S.A. 40-275, the advance payment by Rison must constitute an accommodation to Church Mutual. Bryan v. Davis, 11 Kan. App. 2d 691, 693, 732 P.2d 805 (1987). Accommodation has been defined as “to help” or “to do a service or favor” for someone. 11 Kan. App. 2d at 693. Rison’s restitution payments made into court were not made “to accommodate” as “to help” or “to do a service or favor for” Church Mutual. Restitution was paid by Rison as a condition of his probation and, in part, to avoid revocation of probation. This court has found that the purpose of “the statute-tolling proviso of K.S.A. 40-275 is ‘obviously ... to protect an injured party who receives advance or partial payments. It prevents a party from negotiating with the injured person and making partial payments until the statute of limitations has run and then refusing further negotiation or payment.’ ” 11 Kan. App. 2d at 694. Rison’s payments were not the result of negotiations with Church Mutual. Those payments were court-ordered and a condition of his probation.
Church Mutual has allowed the applicable statute of limitations to run. As a result, its civil action against Rison is barred.
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BULLOCK, J.:
Thomas Gilmore appeals his conviction of driving while under the influence of intoxicating liquor, in violation of City of Hutchinson ordinance No. 23-401a, alleging insufficient evidence to support his conviction and a conflict of interest by the prosecutor.
Officer James Rayburn testified that at about 11:50 p.m. on August 21, 1989, he noticed a 1974 Chevrolet Impala cross the center line of the road and observed other signs of erratic driving as he followed the car. Rayburn stopped the Impala and learned that Gilmore was the driver. Rayburn detected the strong odpr of alcohol and asked Gilmore to perform field sobriety tests, which Gilmore did not do satisfactorily. At this point, Gilmore suggested they do some negotiating. Rayburn arrested Gilmore, using force because Gilmore would not cooperate. Gilmore tried to kick out the windshield of the police car as he was being transported to the police station. At the station, Rayburn informed Gilmore of the consequences of refusing a breath test, but Gilmore refused to take the test, citing “religious insanity” as his reason.
According to Gilmore, he had spent most of the day driving a tractor in a farm field with two co-workers. He testified that he drank two beers during his lunch break and two beers at the end of the day, which was about 10:00 or 10:30 p.m. Gilmore then drove one of his co-workers home. He stated he was driving in a “normal fashion” and had not crossed the center of the road. He pulled his car to the side of the road when he saw the red light on the police car. After giving Rayburn his driver’s license, Gilmore was asked to perform tests and he recited the ABC’s forward and backward. Gilmore thought he had performed the tests correctly. Gilmore alleges he did not ask to negotiate. He was taken to the police car, where his feet were kicked out from under him by Rayburn. When they reached the police station and entered the elevator, Gilmore contends Rayburn kicked and beat him while he was handcuffed. Gilmore alleges he then passed out and, when he awoke, he was being asked to take a breath test and he was “a bit flustered.”
Thomas A. Dower was appointed to represent Gilmore, who was indigent. Dower discovered Gilmore had been on the opposing side of a bitter litigation battle in which Dower’s law firm had taken part. Dower informed Gilmore of this connection and Gilmore stated he did not want Dower to represent him. Richard Rome was then appointed as attorney for Gilmore. Gilmore was found guilty in municipal court and appealed to the district court. Dower became the city prosecutor for Hutchinson and represented the City at Gilmore’s de novo trial before the district court. Gilmore moved for a change in prosecutor, alleging a conflict of interest, but the motion was denied. Gilmore was also found guilty by the district court.
Gilmore first contends that a rational factfinder could not find him guilty based on the evidence submitted at trial.
“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).
Rayburn testified that Gilmore was asked to perform a number of field sobriety tests and none were performed satisfactorily. Rayburn also stated that, when he approached the car, he detected the strong odor of alcohol and that Gilmore fumbled for his driver’s license when it was requested. Looking at this evidence in the light most favorable to the prosecution, we conclude that a rational factfinder could find Gilmore guilty beyond a reasonable doubt.
Gilmore next alleges the district court erred in failing to grant his motion to change prosecutors because Dower’s involvement was a conflict of interest. Gilmore claims that, because Dower first met with him as his appointed counsel, he cannot now represent the City as opposing counsel in the same case. Dower argues that, although he met with Gilmore, the primary matters discussed were Dower’s association with a law firm which had opposed Gilmore in the past and whether Gilmore would prefer that another attorney be appointed. Gilmore agrees this was the primary discussion, but states they also reviewed the police report.
Rule 1.9 of the Model Rules of Professional Conduct (1991 Kan. Ct. R. Annot. 250) defines conflict of interest with regard to a former client:
“A lawyer who has formerly represented a client in a matter shall not thereafter:
“(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.”
To be disqualified under this rule, Dower must meet four requirements: Dower and Gilmore must have had an attorney-client relationship; the present litigation must include the same or a substantially related matter where Dower previously represented Gilmore; the interests of Dower’s present client, the City, must be materially adverse to Gilmore; and Gilmore must not have consented to the representation. Geisler by Geisler v. Wyeth Laboratories, 716 F. Supp. 520, 524 (D. Kan. 1989). The last three requirements are not disputed. The issue is whether Dower “formerly represented” Gilmore and therefore cannot now represent the City as “another person” in the same matter.
Dower denies that he ever represented Gilmore and refers to Black’s Law Dictionary 1301 (6th ed. 1990) for a definition of the word “represent”: “To represent a person is to stand in his place; to speak or act with authority on behalf of such person; to supply his place; to act as his substitute or agent.”
In our view, the dictionary definition in the present context is entirely too general. In a case such as the one before us, the question of conflict in reality arises from the preliminary question of confidentiality and attorney-client privilege. MRPC 1.9; MRPC 1.10 (1991 Kan. Ct. R. Annot. 251);' K.S.A. 60-426. Under K.S.A. 60-426(c)(l), a person becomes a client for purposes of privilege and confidentiality rules when that person contacts an attorney seeking legal advice. If confidential or privileged information is exchanged, a conflict would arise if that attorney then switched sides, even if no actual employment resulted from the initial conference. MRPC 1.9, 1.10.
These questions were considered by our Supreme Court in the important case of Parker v. Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, 781 P.2d 1099 (1989):
“Where a motion to disqualify an attorney under MRPC 1.10(b) (1988 Kan. Ct. R. Annot. 210) has been filed, the trial court must hold a full evidentiary hearing and determine whether the attorney in question acquired material and confidential information during his or her former employment. The court must then make specific factual findings whether the attorney had knowledge of material and confidential information.” Syl. ¶ 4.
“On a motion to disqualify, the burden of proof lies with the attorney or firm who is sought to be disqualified.” Syl. ¶ 5.
Thus, when challenged, an attorney carries the burden to establish in a fact hearing that no confidential or privileged information was acquired in an initial consultation. If that burden is sustained, there is no conflict in the attorney switching sides. If the burden is not sustained, a conflict exists and the attorney must step down.
A Kansas case very much on point to the present situation is State v. Leigh, 178 Kan. 549, 289 P.2d 774 (1955). In that case, an attorney consulted with a defendant about his case and discussed whether he would be defendant’s attorney. As there was some question whether the case could be completed before the attorney took office as county attorney, he apparently declined to represent defendant. The attorney later prosecuted the case as county attorney. He admitted consulting with defendant, but stated that he took no notes and the information he received had nothing to do with his preparation and prosecution of the case as he received all evidence from outside sources. The Supreme Court held that “[a]n attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.” 178 Kan. at 552. The court also noted:
“The authorities are to the effect that in a criminal action, even where no fee has been agreed upon, demanded or asked, and though the services rendered are gratuitous, yet if an attorney has discussed the case with his client or proposed client, or voluntarily listens to his statement of the case prepáratory to the defense, he is thereby disqualified to accept employment on the other side as a prosecutor or assistant prosecutor. [Citations omitted.]” 178 Kan. at 553.
In the case at bar, no hearing was held in the district court to determine whether Dower acquired confidential or privileged information. Accordingly, we must remand for that hearing to be held. If at that hearing Dower sustains his burden to prove no suspect information was conveyed, this conviction should stand. If not, a new trial should be granted with new prosecuting counsel, inasmuch as jeopardy would not have attached. See In re Habeas Corpus Petition of Lucas, 246 Kan. 486, 491, 789 P.2d 1157 (1990); State v. Hanks, 236 Kan. 524, 535, 694 P.2d 407 (1985); State v. McCowan, 226 Kan. 752, 763-65, 602 P.2d 1363 (1979), cert. denied 449 U.S. 844 (1980); State v. Bloomer, 197 Kan. 668, 675, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967).
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Briscoe, C.J.:
Richard Smith appeals from a jury conviction of one count of rape (K.S.A. 21-3502[l][a]). He alleges several trial errors denied him a fair trial and that his conviction violates constitutional provisions regarding double jeopardy. He also challenges the jury selection process. After considering all of the issues raised, we affirm.
I. Double Jeopardy
Smith’s jury trial began on April 24, 1990, with the selection of 12 jurors to hear the case. The jurors were impaneled and sworn and some evidence was taken before the court granted a defense motion for mistrial because the trial judge had incorrectly limited the defense to six peremptory challenges instead of the statutorily required eight. See K.S.A. 22-3412(l)(b). The second trial began on August 7, 1990, and ended two days later with Smith’s conviction of one count of rape. Smith contends the second trial violated his constitutional right to be free from double jeopardy.
A subsequent prosecution is barred under K.S.A. 21-3108(l)(c) if jeopardy has attached (the jury is impaneled and sworn) and a trial is terminated without the consent of the defendant. Exceptions exist if trial is terminated because of illness or death of an indispensable party, if the jury cannot agree, or if it is impossible for the jury to arrive at a verdict. K.S.A. 21-3108(l)(c)(i)-(iii). Here, jeopardy had clearly attached in the first proceeding because the jury was impaneled and sworn. Thus, the question is whether the trial terminated with or without Smith’s consent.
Smith acknowledges the general rule that a second trial does not violate a defendant’s double jeopardy rights when the first trial is terminated because of some action by the defendant , or the conviction is set aside by defendant’s appeal or motion: See Price v. Georgia, 398 U.S. 323, 26 L. Ed. 2d 300, 90 S. Ct. 1757 (1970). He also acknowledges that a retrial is possible after a mistrial is entered without the defendant’s consent if the trial judge exercised sound discretion in determining that a mistrial was a manifest necessity or public justice required it. See State v. Crowley, 220 Kan. 532, 534-35, 552 P.2d 971 (1976). However, > Smith argues his rights were not protected because he was not personally given the option to proceed with the original jury or to have the court- declare a mistrial. Essentially, he argues he did not consent - to the granting of the mistrial, • although his attorney did so on his behalf by filing the motion.
Nothing in the record indicates whether Smith was personally given the opportunity to consent to. the mistrial or to withhold his consent. Even if he did not consent, the. tactical decision of whether to go ahead with the first jury or to seek a mistrial is within his attorney’s discretion, after consultation with his client.A defendant in a criminal case has the ultimate authority to determine ho.w to plead, whether to waive a jury trial, and whether to testify. Model Rules of Professional Conduct 1.2(a) (1991 Kan. Ct. R. Anriot. 229). Otherwise, tactical decisions are largely up to the attorney. Comment to MRPC 1.2 (1991 Kan. Ct. R. Annot. 230). In the absence of any evidence that Smith desired to proceed with the first trial, it is presumed he consented to the mistrial and his double jeopardy argument has no merit.
Even if Smith’s personal consent were required before his counseF could request a mistrial, the trial court properly terminated the first proceeding. K.S.A. 22-3423 provides in relevant part:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(a) It is physically impossible to proceed with the trial in conformity with law; or • . . • .....
- “(b) There is a legal defect in the proceedings which would make any judgment entered upon .a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial.”
Here, the court did not abuse its discretion in declaring a mistrial to terminate a proceeding that would have produced a verdict that one of the parties could upset at will. The court’s failure to allow Smith a proper number of peremptory challenges made it “physically impossible to proceed with the trial in conformity with law.” K.S.A. 22-3423(l)(a).
II. Fair Trial — Ineffective Assistance of Counsel
Smith contends that several errors deprived him of his constitutional right to a fair trial. He essentially argues his appointed counsel was ineffective and points to four instances to illustrate this claim.
To prove a claim of ineffective assistance, a defendant must show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances and that, but for the ineffective assistance, a reasonable probability existed that the result in the case would have been different based on a consideration of the totality of the evidence. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985).
a. Pretrial bond conditions
First, Smith argues two pretrial bond conditions improperly limited his ability to investigate the case. The journal entry of bond reduction contains the following conditions:
“3. [Smith] is not to discuss the alleged offense, with anyone except for immediate family of Defendant,, unless his attorney is present.
“4. The potential witnesses shall be talked to only in the presence of their attorney.”
Smith alleges these conditions were improper and unduly restricted his investigation of the case against him.
Condition 4 certainly goes beyond the authorized bond conditions listed in K.S.A. 1991 Supp. 22-2802(1). Literally read, it prohibits Smith from speaking to any potential witness unless the potential witness’ attorney is present. However, Smith has not shown how this error affected his attorney’s ability to investigate the case. The attorney’s billings show that he contacted several potential witnesses prior to trial and conferred with the prosecutor on numerous occasions. Further, the case essentially came down to the issue of consent. The only witnesses who reasonably could testify in this regard were Smith and the victim, and Smith knew the victim would testify that she did not consent. Defense counsel’s failure to object to the language in the conditions does not fall below an objective standard of reasonableness.
b. Composition of jury panel
Smith next alleges that his attorney should have objected to the makeup of the jury panel. He argues the lack of minorities on the panel should raise a question in any attorney’s mind as to whether a black defendant could get a fair trial. Whether the jury was improperly selected in this case is addressed on its merits in issue III below.
c. Failure to interview and call potential witnesses
Smith also contends his counsel should have interviewed and called several defense witnesses. Smith filed nine affidavits in support of his motion attacking the judgment. Basically, the affidavits attested to Smith’s good character and the possibility that Smith was not the instigator. As the State properly points out, trial strategy is left up to the trial attorney, and the character evidence Smith sought to have admitted may not have helped but may actually have harmed him by opening his character to cross-examination.
The billings submitted by defense counsel indicate he interviewed several potential defense witnesses, although he called only one at trial. That witness, basically testified that he saw Smith and the alleged victim arrive at school just after the rape allegedly occurred and that the victim appeared to be acting normally.
Coimsel’s assistance as regards the intérviewing and calling of witnesses was not ineffective. Smith admitted he and the victim had had intercourse. Therefore, the only issue at trial was consent. The victim testified she did not consent and several prosecution witnesses testified that she showed physical signs consistent with that of a rape victim shortly after the rape allegedly occurred. Further, Smith’s statements to police officers did not clearly indicate that the victim consented. Counsel’s failure to present evidence of Smith’s good character did not fall below an objective standard of reasonableness, and, in any event, no reasonably probability exists that the result would have been different based on a totality of the evidence.
d. Speedy trial
Lastly, Smith contends he was . denied the constitutional right to a speedy trial and that his counsel was ineffective because.this issue was not raised.
K.S.A. 22-3402(2) generally requires trial to begin 180 days following arraignment for persons out on an appearance bond. Subsection (4) of the statute provides: “In the event a mistrial is declared . .. . the time limitations provided for herein shall commence to run from the date the mistrial is declared.” Here, the trial court declared a mistrial, on April 24; 1990, and the second trial began on August 7, 1990,. • 105 days later. Smith was not denied the right to a speedy trial, and no ineffective assistance of counsel is shown.
III. Jury Selection Process
Smith- contends the Harvey County jury selection system is deficient in several respects, all of which • deprived him of . his right to be tried by a jury of his peers. He also contends, his counsel was ineffective because he failed to object to the makeup of the jury panel. Because this claim-is included in Smith’s ineffective assistance of counsel claim, we will address the merits of this issue and not find the issue is waived because of defense counsel’s failure to timely object. - .-
' The legislative's stated purpose in adopting the Petit and Grand Jurors Act is set out -in K.S.A. .43-155: ,
“The public' policy of this state is decláred to be that jury service is the solemn obligation of all qualified citizens, and that excuses from the discharge of this responsibility should be granted by the judges of the courts of this state only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health or safety; that all litigants entitled to trial by jury shall have the right to juries selected at random, from a fair cross section of the community in the district wherein the court convenes; and that all citizens shall have the opportunity to be considered for service on juries in the district courts of Kansas.” (Emphasis added.)
Generally, the Act requires the “jury commissioner” to prepáre a “jury list” of those persons in the county eligible for jury service. K.S.A. 43-162. A “jury commissioner” is defined as “the judge or judges of the district court- in each county, or a person appointed to serve as jury commissioner by a district court.” K.S.A. 43-157(b). A “jury list” is “a list of those persons qualified- for jury duty in a county as such list is prepared in accordance with this act.” K.S.A. 43-157(a). K.S.A. 43-156 sets out a person’s right to sérve on a jury:
“No person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of race, color, religion, sex, national origin, or economic status.' Every juror, grand and petit, shall be á citizen of the state, resident of the county and possess the qualifications of an elector as now, or in the future established.”
Jury lists may be compiled from one of several sources or a combination of those sources. Sources used in compiling jury lists are governed by K.S.A. 43-162:
“Jury lists shall be prepared from voter registration records of the county, lists of licensed drivers residing in the county or enumeration or census records for the county, in accordance with the intent and purposes of this act. On and after January 1, 1985, lists of holders of state-issued nondrivers’ identification cards who reside in the county may also be used in the preparation of jury lists. Jury lists prepared from multiple sources may be used if one or more of the foregoing records is used as a material source in preparing the list.”
Once a jury list is compiled, a jury panel is drawn from the list by use of a “wheel,” defined as “a container in which may be placed cards bearing the names of persons on the jury list of a county.” K.S.A. 43-157(c). The jury commissioner is required to place the name of each person on the jury list on a card of uniform kind and size, and those cards are then mixed in the wheel. K.S.A. 43-163. The district judge, or a person appointed by the court for such purpose, then draws names from the wheel. K.S.A. 43-164. “The person drawing names from the wheel shall be so situated that he is unable to see the name on any card before it is drawn.” K.S.A. 43-164. Alternative methods for drawing panels exist:
“In the event that a county has appropriate base information programmed as' part of its computer operations so that it might comply with the spirit of the jury selection laws- of Kansas the jury commissioners may by local rule provide alternate methods for securing jury panels directly from the computer without the necessity of drawing names or cards from a wheel manually.” K.S.A. 43-163.
Here, Smith contends Harvey County’s jury selection process fails to follow the stated public policy. He argues that all qualified citizens are not considered, but only those who register to vote. He also points out there were no blacks on the jury panel.
In State v. Campbell, 217 Kan 756, 767, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975), the court held the use of voter registration records as the sole source for jury lists results in juries selected from a fair cross-section of the community and is not statutorily or constitutionally invalid. The court reiterated this holding in State v. Sandstrom, 225 Kan. 717, 730-31, 595 P.2d 324, cert. denied 444 U.S. 942 (1979). Smith acknowledges these cases in his brief, but suggests that a 1983 amendment to 43-162 was intended to limit the effect of the cases. He alleges the statute now requires multiple sources for jury lists. We disagree.
A review of the legislative history of 43-162 does not justify Smith’s conclusion. As originally adopted, the statute stated: “Jury lists shall be prepared from voter registration records and enumeration or census records.” (Emphasis added.) L. 1971, ch. 176, § 8. The 1981 legislature amended the statute by changing the “and” to “or,” and adding: “Jury lists prepared from multiple sources may be used if one or more of the foregoing records is used as a material source in preparing the list.” L. 1981, ch. 202, § 1. The present statute, as amended in 1983, is quoted above.
Had the legislature intended to limit the effect of Campbell and Sandstrom, it could have easily required that jury lists be prepared from voter registration records and driver’s license lists, and could have deleted the sentence that states lists prepared from multiple sources may be used if one or more of the designated records is used as a material source. The clear language of the present statute leads us to conclude that use of voter registration lists as the sole source of jury lists is not statutorily or constitutionally invalid.
Smith also argues the deputy clerk of the district court makes nearly all decisions as to which potential jurors to excuse and that Harvey County’s failure to use a jury wheel is a fatal flaw in the selection of the jury panel.
Highly summarized, the evidence showed the county’s jury lists are generated from the voter registration list and no other source is considered. The county has been receiving “mag tape[s]” of licensed drivers since 1988 and expects to add those names to the list of persons for jury service. The jury list is generated by a computer, but it is unclear as to how the computer selects the individuals who appear on the list. The jury commissioner testified that the voter registration list is constantly updated and, when a jury list is needed, the number of persons on the voter registration list is divided by the number of jurors needed, and the machine selects names for the jury list, apparently according to a preset factor. The jury list for the court term in which Smith’s case was heard contained 400 names.
After receiving the jury list, the deputy clerk mails a summons for jury duty and an áttached questionnaire to each person' on the list. The clerk’s internal instructions provide that persons are excused if they will be on vacation, are ill, or have a death in the family and that any other excuse is considered by the judge. As questionnaires are returned, the clerk arranges them alphabetically in a stack. When asked to describe how she woiild pick 40 names for a jury panel, the clerk testified: “I just start at the top of the stack and pull one, skip a few, pull another, skip a few, so that I get "some of each alphabet.”
Smith is Correct in his contention that Harvey County’s jury panel selection process does hot comply with the statute. K.S.A. 43-163 clearly requires use of a wheel or a computer selection program. However, this fact in itself did not deprive Smith of the right to have his jury drawn “at random from a fair cross section of the community.” K.S.A. 43-155. The list was drawn at random from a computer listing’ of registered voters. From that list, the clerk drew the panel from the returned questionnaires. The clerk testified that she did hot consider age, race, or income, nor did she consider whether she personally knew or disliked any of the potential jurors.
.Smith makes much of the fact that the county has no local rule governing a computer method of jury selection. This argument is without merit. According to 43-163, a local rule is only required where the jury panel, not the jury list, is selected by computer.
In Sandstrom, 225 Kan. at 731, the court pointed out that no one arbitrarily chose which persons would be on the jury list, there was nothing in the record to show systematic exclusion of members of any particular class, and defendant failed to show any prejudice by the method used. Such is the case here as well. While Smith does not prevail on this issue because there is nothing in the record to show that anyone arbitrarily chose which persons would be on the jury list or jury panel, that there was a systematic exclusion of members of a particular class from the jury list or jury panel, or that he was prejudiced by the method used to select the jury list or jury panel, the district court should take appropriate action to comply with the jury panel selection procedure set out in 43-163.
Smith argues the method of granting excuses from jury service in Harvey County violates 43-155. The statute requires that judges grant excuses from jury service, and only for the reasons set out in the statute. The record in this case reveals that the clerk grants excuses based upon internal operations instructions. These instructions appear to be nothing more than a checklist generated by the clerk or her predecessor.
While the procedure for granting excuses is in violation of 43-155, Smith does not prevail on this issue for the same reasons he does not prevail on his argument concerning selection of the jury panel. Smith has failed to establish that the clerk’s method of excusing jurors resulted in arbitrary selection of who would serve on the jury, systematic exclusion of members of a particular class, or prejudice to him.
The internal feature of the procedure used by the clerk creates the appearance that the clerk decides whom to excuse. District court judges wishing to grant excuses for frequently recurring reasons, as provided in 43-155, should do so by published local court rules. See Standard 6(d), Standards Relating to Jury Use and Management (1991 Kan. Ct. R. Annot. 58-59) (judges of each judicial district should adopt guidelines for determining requests for excusal and deferral from jury service).
Having determined that Smith was not prejudiced by the county’s failure to follow the procedures set out in 43-155 and 43-163, his claim that his counsel was ineffective for failure to raise these issues must also fail.
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Pierron, J.:
G.M. and E.B. appeal the order of the court severing their parental rights.
G.M. and E.B. have three children — two boys, J.A.B., born September 5, 1985, and G.K.B., born October 21, 1984, and one daughter, J.M.B., born December 20, 1983. In addition, E.B. has a son by D.D., J.J.B., bom September 11, 1982. E.B. had not seen D.D. since shortly after J.J.B. was conceived. D.D. was then living in Los Angeles. D.D.’s parental rights were also severed. This has not been appealed, D.D. was not present at the hearing but was represented by counsel. G.M. and E.B. are not married.
On September 30, 1988, G.M. filed a petition alleging the children were in need of care because he could not provide for them financially and because E.B. lacked the parenting skills and intelligence to provide hygiene and nutrition for the children. G.M. stated he instigated the proceedings because he believed child rearing and housekeeping were E.B.’s responsibility.
A hearing was held on October 7, 1988. As a result of this hearing, the court ordered SRS to provide informal supervision of the family and family services, ordered the parents to attend parenting classes, and set a review hearing for November 14, 1988.
At the November 14 hearing Karen Huffman, an SRS social worker, testified that she first met the family about three months before, when one of G.M.’s sisters reported the situation to SRS. She visited their home then and found the children and the house to be very dirty. Since the hearing on October 7, she had visited the home every day. During this time the family had moved around, living with different friends. She recommended that the children be placed in SRS custody. She also reported that E.B. had completed parenting classes and was keeping the children and the house they were staying in cleaner. However, she then stated there was no improvement. She believed the children were being fed, but that E.B.’s money could be better managed to feed them better food. Her chief complaint was lack of hygiene.
Based solely on Huffman’s testimony, the trial court found the children were in need of care and placed them in SRS custody with liberal visitation provided to the parents.
On December 20, 1988, SRS reported that the foster parents had reported suspicions that J.J.B. and G.K.B. had been sexually abused. E.B. and G.M. were questioned about this. A review hearing was held on January 26, 1989, at which time the court ordered the children to be placed in foster care and the parents to obtain counseling at the Counseling Center.
Counsel was appointed to represent E.B. on June 5, 1989. On September 5, 1989, E.B. filed a request through counsel for a review hearing alleging that the criminal investigation of sexual abuse of the children by G.M. resulted in no charges being filed and that SRS had not attempted to return the children. She requested the court either to order SRS to provide a reintegration plan or immediately to return the children to the home. On September 27, 1989, counsel was appointed to represent G.M.
A review hearing was held on October 19, 1989. At the hearing SRS presented reports from the children’s and parents’ counselors and the foster parents. SRS conceded that the parents had done what was required but, because of the allegations of sexual abuse, SRS and the counselors were recommending that visitation with G.M. be terminated until the matter was resolved and that E.B.’s visitation be supervised by Betty Skinner of the Counseling Center. The court granted SRS’ request and further ordered G.M. and E.B. to undergo psychiatric evaluation.
The next review hearing occurred on January 16, 1990. Michelle Rupe, an SRS social worker and case manager for the children, was the sole witness. She presented results of the psychiatric examinations, which showed E.B. needed long term counseling for childhood traumas, participation in Narcotics Anonymous, and drug screenings. Because of these problems and low intellectual level and self insight, her prognosis for being an adequate parent was poor. The psychologist recommended severing her parental rights.
Regarding G.M., the tests showed he would be in need of therapy for sexual relations with his children, if he had been engaged in that activity, and it was recommended that he be screened more carefully for the possibility of substance abuse. The children’s counselor recommended they remain in foster care. SRS recommended that the parental rights be severed. Rupe testified that no supervised visits with E.B. and Betty Skinner had occurred as ordered at the previous hearing. The county attorney moved to withdraw because of a conflict of interest. The court allowed the county attorney to withdraw and “advised” SRS to either provide a reintegration plan or file a motion to sever parental rights by January 26, 1990.
SRS did not appear at the January 26, 1990, hearing. At this point, no further acts towards a reintegration or severance had been made. Although the county attorney had disqualified herself because of a conflict of interest, she argued against resuming visitation for E.B. Another hearing was set for February 14, 1990.
On February 8, 1990, SRS filed a motion to sever the parental rights of both E.B. and G.M. Hearings on the motion were heard on April 11, 1990; May 17, 1990; and May 23, 1990. The evidence produced at those hearings will be discussed as needed to resolve the issues. On July 25, 1990, the court severed the rights of both parents. E.B. and G.M. filed timely notices of appeal.
The question of legal representation of indigent parents in Kansas juvenile actions seeking custody of children under the Code for Care of Children (K.S.A. 38-1501 et seq. and its predecessors) has been the subject of significant legislative and judicial concern.
Regarding an action under the child in need of care (CINC) provisions, K.S.A. 38-1505(b) states in part:
“If at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent. It shall not be necessary to appoint an attorney to represent a parent who fails or refuses to attend the hearing after having been properly served with process .... A parent or custodian . . . may waive counsel either in writing or on the record.”
By enacting this provision, the legislature underlined the importance of legal representation where the parent’s rights may be jeopardized. Such a provision is appropriate in light of the usual CINC situation where the State may be requesting tern porary or permanent deprivation of parental custody and the parents may lack the education and experience to represent themselves and not have the resources to obtain representation. While we presume the State’s attorney and the guardian ad litem wifi act in the best interests of the children and with due regard to the rights of the parents in most instances, nothing can adequately replace independent representation in contested legal matters..
. To be sure, many CINC actions are, resolved expeditiously through assistance to the family in various ways which re-estafilishes the viability of the family unit. In such circumstances, counsel for the parents may not provide anything that is needed and may even slow down a unanimously desired disposition and involve an unnecessary party which creates an unjustified' .expense. Of course, the child always has independent representation through its guardian ad litem under K.S.A. 38-1505(a). ..
To give the system the flexibility to avoid unneeded involvement by another party, K.S.A. 38-1505 allows for a waiver of counsel by a parent competent to make such waiver. Our courts, in balancing all of these factors,. have fleshed out and clarified the right of counsel in these situations. The two most important cases , accomplishing this are In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), and the recent In re S.R.H., 15 Kan. App. 2d 415, 809 P.2d 1 (1991). Cooper was an appeal from a deprived child finding under the , previous juvenile code where no permanent severance of parental rights was attempted and the custody,, of the child had been restored to the parents prior .to the appeal being heard. S.R.H. was an appeal from a termination of parental rights that had been preceded by a CINC finding. In bpth. cases the appellant had not been represented .by counsel at the hearing where the deprived child/CINC finding was madé and neither had requested counsel up to that point.
Both cases emphasized that parents’ rights of custody anfi control of their children are liberty interests protected by the Fourteenth Amendment D.ue Process Clause of the United States Constitution. S.R.H., 15 Kan. App. 2d at 419 (citing Cooper, 230 Kan. at 64).. The opinion in S.R.H. noted that the statutory provisions concerning appointment of counsel for parents .involved in juvenile proceedings in effect at the time of Cooper, did not require appointment of counsel for indigent parents. Notwith standing a lack of specific statutory authority, the Cooper court ruled:
“In deprived child hearings the district court should safeguard the due process rights of an indigent parent and have counsel appointed at the expense of the county when the circumstances appear to require it and, should a request for counsel be refused, grounds for such refusal shall be stated in the record so that a meaningful judicial review can be had.” 230 Kan. at 69.
The court further stated:
“In some deprived child hearings the parent or parents involved may voluntarily waive their rights to appointed counsel after being fully advised of their rights. Such waiver should be entered on the record of the proceedings and, in such case, violation of due process rights could not successfully be raised later when the evidence of the deprived child hearing is used to support a petition to sever parental rights.” 230 Kan. at 67-68.
Analyzing Cooper’s mandate as it applied to the facts in S.R.H., the court stated:
“Employing the balancing test, the trial court must make a determination as to whether an indigent parent is entitled under the Due Process Clause of the United States Constitution to be represented by counsel in a deprived child hearing. Not unlike Cooper, we deal with a hearing that will determine whether a minor child is to be adjudicated a child in need of care. While such adjudication does not necessarily always lead to severance, clearly, under some circumstances, such adjudication may, in fact, lead to severance. Because such hearing at least raises the issue of whether the parent is entitled to the appointment of counsel under the Due Process Clause, the failure of the district court to inquire into this issue as required by Cooper requires us to reverse this case.
“It is clear to us that Cooper requires the court to consider on the record the parent’s representation by counsel in cases of temporary deprivation even though the statute then did not provide for appointment of counsel. Likewise, under the Code for Care of Children, Cooper remains good law. The right of an indigent parent to be represented by counsel in a hearing to determine whether the parent’s minor child shall be adjudicated a child in need of care is not dependent upon a request by the parent to be represented by counsel. While the statute speaks in terms of a desire, it also speaks in terms of waiver on the record or in writing. The Cooper case, while not requiring the appointment of counsel in every case of temporary deprivation, certainly requires a court hearing a petition to declare a child in need of care to make an independent determination as to whether the parent should be represented by counsel in this proceeding.
“ ‘At the onset of every deprived child proceeding the court should require the State to make an opening statement outlining the evidence which the State expects to introduce in support of the petition, and making suggestions as to recommended solutions for those problems which the State believes necessary and in the best interest of the child. In any case where the conditions outlined prior to the hearing appear to be serious and have remained so for a considerable time counsel should be appointed for the indigent parent or parents. In such cases if no attorney is appointed for the parents any evidence introduced at the deprived child hearing may well be inadmissible in a later severance hearing. Without an attorney to represent the parents, the evidence would be taken in violation of the due process rights of the parent.’ 230 Kan. at 67.” 15 Kan. App. 2d at 421-22.
The Cooper court, in addition to the balancing test, set forth four additional factors when considering whether to appoint counsel:
“(1) length of anticipated separation the parents may face, (2) the presence or absence of parental consent to State assistance, (3) the presence or absence of disputed facts, (4) the parents’ ability to cope with relevant documents and to question the State’s witnesses at the hearing.” 230 Kan. at 68.
We are, of course, aware that the trial judge did not have the benefit of the decision in S.R.H. at the time these matters were being litigated. We believe applying the Cooper!S.R.H. factors to the instant case requires it to be reversed. We have no doubt the court’s intention was reintegration until it became clear that severance was a possibility. However, the circumstances here occurred such that the parents have been denied due process due to lack of counsel. We note the original CINC petition (September 30, 1988) was filed on the suggestion of the father. Immediate efforts were made to provide the family with services so as to maintain the family unit. By November 14 it was clear that matters were not improving markedly and further placement in foster care was necessary. The December 20 report of suspected child abuse by the parents should have sounded an alarm that the situation was much more serious than originally believed.
When the review hearing was held January 26, 1989, it was clear that the court was looking at prolonged placement outside the family home. A criminal investigation was apparently in progress and reintegration was not on the horizon. At that point, where it was clear there were serious issues to be resolved and the prospects of reintegration were problematical, counsel should have been appointed. The court obviously hoped that matters would improve and so delayed appointment of counsel for E.B. until June 5, 1989. After appointment, the counsel, who was faced with a CINC determination and a family that had been separated for seven months, apparently attempted to work for reintegration for three months and then filed for a review which ultimately led to the trial of the matter.
It appears the parents’ rights were clearly compromised by their failure to have counsel appointed immediately after the January 26, 1989, hearing. The longer a family is separated, the more problems there can be with reintegration.
We acknowledge that significant substantial evidence was presented in support of the severance petition. The parents are limited intellectually and had, at best, minimal parenting skills at the beginning of the process. Abuse is a definite possibility and the prospects for change are not rosy. It is also open to question whether the delay in appointment of counsel was critical. After appointment, ten more months passed before trial was commenced, arguably giving counsel plenty of time to prepare.
Balanced against this is the difficulty in calculating the prejudice caused by the lack of counsel from December or January when obvious and serious concerns about the situation arose until the appointments in June and September. During this time the rights of the parents were not being safeguarded by counsel, with unknown and unknowable ramifications.
There is no good remedy available. We believe the best that can be done is to remand the matter for retrial on the severance petition before a new judge who has not heard the evidence nor been involved in the proceedings. We are keenly aware of the fact that this will constitute yet another delay in a time-sensitive situation, but we see no other alternative.
Due to this finding we do not reach the question of the sufficiency of the evidence presented at trial.
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Lewis, J.:
In this action, the Kansas Commission on Civil Rights (KCCR) is attempting to assert jurisdiction over the Zion Lutheran Church of Prairie Village, Kansas (Church). Senate Bill 456 changed the name of KCCR to “Kansas Human Rights Commission,” effective July 1, 1991. For the purposes of this opinion, however, we will continue to refer to the commission as “KCCR. ” A complaint was filed before KCCR, alleging race and sex discrimination was practiced by the Church in the operation of a child day care center.
The trial court determined that KCCR had no jurisdiction over the Church and enjoined KCCR from proceeding on the discrimination claim noted above. KCCR appeals from that ruling.
The Church is a non-profit religious corporation, organized under the laws of the State of Kansas, with its principal office located in Prairie Village. The Church is a sectarian corporation whose articles of incorporation state that its purpose is “to carry on religious, benevolent, educational and missionary work in agreement with the principles of the Lutheran Church, Missouri Synod, as set forth in the Unaltered Augsburg Confession.” In pursuance of that purpose, the Church owns and operates a church facility at 7501 Belinder in Prairie Village.
The Church also operates a child day care program in the Church building at the address listed above. This program is administered by the Zion Child Care Administrative Board.
The Church employed various individuals in the operation of its child care program. One of those individuals, a former employee, filed a verified complaint, alleging that race and sex discrimination was practiced by the Church when his employment was terminated. This complaint was filed under the Kansas Act Against Discrimination (KAAD) before KCCR, which took jurisdiction over the complaint.
KCCR determined that probable cause existed to conduct a hearing on the complaint and notified the Church of that decision.
Prior to any hearing being conducted or to any discovery procedures being conducted, the Church filed a motion to dismiss the pending KCCR action on the grounds that KCCR lacked subject matter jurisdiction over the Church. Attorneys for KCCR opposed that motion and filed an appropriate response to it.
The hearing examiner for KCCR concluded that he would defer all action on the motion to dismiss until the conclusion of the public hearing on the complaint.
After the hearing examiner failed to rule on the Church’s motion to dismiss, the Church resorted to the courts of this state by filing the instant matter in the district court, seeking injunctive relief.
The trial court conducted a hearing on the Church’s petition and ruled that the petition was meritorious. Accordingly, the trial court held that KCCR has no jurisdiction over the Church and enjoined KCCR from further proceedings on the complaint filed against the Church.
JURISDICTION
The first issue we must determine is whether the trial court had jurisdiction over the action filed by the Church.
KCCR argues that the Church failed to exhaust its administrative remedies. It relies on the decision of Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 906, 528 P.2d 1232 (1974), for the proposition that all administrative channels miist be exhausted before a trial court would have jurisdiction to issue orders in a case of this nature.
We agree with KCCR that the Church had not exhausted its administrative remedies prior to the filing of the present action in the district court. We further agree that Jarvis, .in general, does require a litigant to exhaust all administrative remedies available before seeking relief from the courts. Despite our general agreement on these issues, we hold that, in this case, KCCR’s argument is misplaced. We conclude that this case is governed by an exception to the general rule stated in Jarvis and that the trial court did have jurisdiction to grant the injunctive relief.
Determining whether the trial court had jurisdiction in the present controversy is a question of law and, as such, our review 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).
We hold that the question in this case is controlled by our decision in R. D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982). In that case, we held:
“It is a well-recognized exception to the rule in Jarvis that judicial review of interlocutory rulings of an administrative agency is proper if the agency has exercised authority in excess of its jurisdiction or acted in some manner that is contrary to its statutory grant of authority. [Citations omitted.]” 7 Kan. App. 2d at 456.
In R. D. Andersen, a claim for wages was filed against Andersen before the Kansas Department of Human Resources. Andersen responded to that claim by seeking injunctive relief from the district court on the theory that an administrative agency had no jurisdiction over it. The district court agreed and granted the relief sought.
In that case, as here, the decision was appealed to this court on the theory that administrative remedies had not been exhausted. We affirmed the action of the trial court and said: “The rule of Jarvis is not questioned in this case, but it has no application here. The issue in this case is whether there were any administrative remedies provided at all, not whether they had been exhausted.” 7 Kan. App. 2d at 456. We went on to say that the rule of law allowing “extraordinary judicial remedies to curtail or prohibit unlawful action by an administrative agency” has been recognized by the Kansas Supreme Court since 1916, where, in State, ex rel., v. Mohler, 98 Kan. 465, 472, 158 Pac. 408 (1916), the court stated: “ Tf this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus.’ ” 7 Kan. App. 2d at 457.
The present action mirrors R. D. Andersen. The Church claims that, as a sectarian corporation, it is exempted from the coverage of KAAD and, as a result, the issue presented to the trial court was whether KCCR had jurisdiction to proceed through the administrative process. Based upon our decision in R. D. Andersen, we hold that the trial court had jurisdiction to hear and rule on the Church’s petition for declaratory judgment and injunctive relief.
DOES KAAD APPLY TO SECTARIAN CORPORATIONS?
In ruling in favor of the Church, the trial court in the present matter held that KCCR had no jurisdiction over a sectarian corporation. KCCR argues that, even assuming the trial court had jurisdiction to determine the issues involved, it erred in its determination that KCCR had no jurisdiction over the Church.
KCCR argues that the legislature intended for sectarian organizations to be subject to the provisions of KAAD. It additionally contends that, in this case, the child care program does not serve any religious purpose and that it should at least have jurisdiction over that aspect of the Church’s operation.
K.S.A. 44-1009(a) provides:
“(a) It shall be an unlawful employment practice:
“(1) For an employer, because of the race, religion, color, sex, physical handicap, national origin or ancestry of any person to refuse to hire or employ, or to bar or to discharge from employment such person or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; or to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive.”
It would seem to follow that, if the Church is an employer within the purview of KAAD, then it would be subject to the proceedings of KCCR. In order to determine this issue, we must construe K.S.A. 44-1002(b), which defines employer as:
“(b) The term ‘employer’ includes any person in this state employing four (4) or more persons, and any person acting directly or indirectly for an employer as herein defined, and labor organizations, nonsectarian corporations, and organizations engaged in social service work, and the state of Kansas and all political and municipal subdivisions thereof, but shall not include a non-profit fraternal or social association or corporation.” (Emphasis added.)
The statute clearly covers nonsectarian corporations as employers within the purview of KAAD. In the instant matter, the Church is a sectarian corporation, and the question is whether a sectarian corporation is' included within the definition of “employer” cited above. This question has been decided, and this case is controlled by the decision of Van Scoyk v. St. Mary’s Assumption Parochial School, 224 Kan. 304, 580 P.2d 1315 (1978). In that case, two Protestant teachers at a Catholic school operated by St. Mary’s Church were released and no reason was given for their termination. The two aggrieved former teachers filed suit, claiming that St. Mary’s was guilty of religious discrimination. St. Mary’s countered by arguing that it was exempt from the provisions of KAAD because it was a sectarian corporation.
The Kansas Supreme Court held in favor of the position taken by St. Mary’s and stated that the definition of employer in the statute did not include sectarian employers:
“K.S.A. 1977 Supp. 44-1002(b) defines ‘employer’ as follows:
“ ‘The term “employer” includes any person in this state employing four (4) or more persons, and any person acting directly or indirectly for an employer as herein defined, and labor organizations, nonsectarian corporations, and organizations engaged in social service work, and the state of Kansas and all political and municipal subdivisions thereof, but shall not include a non-profit fraternal or social association or corporation.’ (Emphasis supplied.)
“Bv specifying and including nonsectarian corporations under the act, the legislature obviously intended to exclude sectarian employers.” 224 Kan. at 307.
We are unable to distinguish the current case from Van Scoyk. Van Scoyk is clearly on point and is controlling. Based on the law of Van Scoyk, the Church is exempt from the provisions of KAAD, and the trial court did not err in reaching that conclusion.
KCCR argues that Van Scoyk is ambiguous and that the opinion is “cryptic,” out of date, and unreliable. It further asserts that the decision is out of line with the law of other jurisdictions and that it should strictly be limited to its facts. We do not agree.
The decision in Van Scoyk is neither ambiguous or cryptic. It very clearly and precisely interprets K.S.A. 44-1002(b) and holds that it does not include sectarian employers. This court is required to apply the law established by the decisions of our Supreme Court, absent some indication that the court is departing from its previously expressed position. Mercer v. Fritts, 9 Kan. App. 2d 232, 235, 676 P.2d 150, aff'd 236 Kan. 73, 689 P.2d 774 (1984). We have no reason to suspect that our Supreme Court has any intention of departing from its decision in Van Scoyk. Further, we agree with that decision and hold that it controls our decision in the present matter.
We further note that Van Scoyk was decided in 1978. The legislature is presumably well acquainted with the opinion and with its ramifications. Since 1978, the legislature has met a number of times and has, on several occasions, amended KAAD. Despite the opportunity to do so, the legislature has not seen fit to enact legislation which would nullify or alter the decision in Van Scoyk. We consider this inaction by the legislature to be significant and indicative of legislative satisfaction with the definition of “employer” adopted by Van Scoyk. In our judgment, if KCCR wants to include sectarian corporations within its jurisdictional grasp, it should seek appropriate action by the legislature.
Finally, KCCR argues that, while the Church may be a sectarian corporation, its child care program is somehow separable and not sectarian. We consider this argument untenable for a number of reasons. First of all, this argument was not presented to the trial court. We have examined the record and can find nothing in the record to indicate that this argument was ever presented to the trial court. The law is clear that a point not raised before the trial court cannot be considered for the first time on appeal. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987). Further, if the record fails to show that an issue was raised before the trial court, this court is precluded from considering that issue on appeal. See State v. Trotter, 245 Kan. 657, Syl. ¶ 1, 783 P.2d 1271 (1989).
There was apparently no testimony, and there is nothing in the record to indicate, that the child care program operated by the Church was anything other than sectarian in nature. We believe it is reasonable to conclude that, if the purpose of the Church is to honor and carry out the will of God; to carry on religious, educational, and missionary work; and to manifest the unity of the congregation’s faith in Jesus Christ as God and Savior, the child care program run by the Church will attempt to meet those goals. These purposes are all clearly set forth in the-Church’s articles of incorporation and in its constitution.
There is simply no evidence in the record to indicate that the child care program can be separated from the other operations of the sectarian corporation which is known as the Zion Lutheran Church. The record does not support, in any manner, the contention of KCCR in this regard. Because it is the duty of the appellant to designate an adequate record to support its contentions, the failure of KCCR to do so requires this court to presume that the findings of the trial court are correct. See Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 671, 809 P.2d 1216 (1991); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989).
Affirmed. | [
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Rulon, J.:
Michael J. Farmer, defendant, appeals the district court’s denial of his motion to dismiss an order rescinding an earlier order discharging him from probation. We reverse.
A brief outline of the underlying facts is helpful to our discussion of the issue presented.
In January 1985, defendant was charged with attempted first-degree murder and aggravated battery. The State eventually dismissed the aggravated battery charge and amended the attempted murder charge to attempted second-degree murder. Defendant entered a plea of no contest to this charge. On December 4, 1985, he was sentenced to 3 to 10 years’ incarceration and ordered to undergo an evaluation by the State Reception and Diagnostic Center.
Defendant then moved the court for sentence modification, requesting probation because he claimed probation would allow him to continue treatment at the Veterans Administration Hospital for post-traumatic stress syndrome from his service in Viet Nam. The court granted defendant’s motion and placed him on five years’ probation subject to certain conditions. The journal entry was filed March 31, 1986.
On October 3, 1988, the district court filed an order of early discharge from probation. The order stated that defendant had complied with all conditions of his probation and had reported as scheduled to his probation officer, that probation was no longer necessary, and that discharge would be an added incentive for defendant to continue to function in the role of a law-abiding citizen. Defendant was discharged from probation. The discharge was recommended by the court services officer and approved by the district attorney.
On December 14, 1988, the district court filed an order rescinding the earlier order discharging defendant from probation. The order placed defendant back on probation under the conditions specified in the March 1986 order. This order is very brief and states no reasons for the rescission. There is no document in the record on appeal indicating why the court rescinded its earlier order of discharge.
At a hearing conducted on April 27, 1990, to determine whether defendant’s probation should be revoked, defense counsel objected to the proceeding because the defendant had been discharged from probation and the court was thus without jurisdiction in the matter. The State argued that the court had properly vacated the order of discharge from probation because the discharge had been fraudulently obtained. Defense counsel responded that he knew nothing about any fraud or false statements by defendant in being discharged from probation. In rejecting the defendant’s argument, the district court essentially reached the conclusion that the order discharging the defendant from probation had been “improvidently signed.”
Defendant filed a motion on March 26, 1991, seeking dismissal of the order rescinding discharge from probation. The court denied the motion.
Before us, the kernel of defendant’s argument is that the district court’s jurisdiction over him ended with its termination of his probation. The State responds that the district court has the power to correct errors in the record, and that the court was simply exercising this power when rescinding the earlier order of discharge from probation.
K.S.A. 21-4611(1) briefly discusses the termination of probation:
“21-4611. Period of suspension of sentence, probation or assignment to community corrections; parole of misdemeanant. (1) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases or two years in misdemeanor cases, subject to renewal and extension for additional fixed periods not exceeding five years in felony cases, nor two years in misdemeanor cases. In no event shall the total period of probation, suspension of sentence or assignment to community corrections for a felony exceed the greatest maximum term provided by law for the crime, except that where the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. Probation, suspension of sentence or assignment to community corrections may be terminated by the court at any time and upon such termination or upon termination by expiration of the term of probation, suspension of sentence or assignment to community corrections, an order to this effect shall be entered by the court.” (Emphasis added.)
This statute is the only utterance in Chapter 21, Article 46 of the Kansas Statutes Annotated on the subject of termination of probation by the court. There is no language in this statute that could be construed as allowing the court to continue to exercise jurisdiction over a probationer who either has been discharged from probation before the end of the probationary period or has completed probation pursuant to the court’s order.
The State cites six cases from other jurisdictions as support for the district court’s authority to rescind the order discharging Farmer from probation: Weydeveld v. Weydeveld, 100 Colo. 301, 67 P.2d 72 (1937); E.C. Robinson Lumber Company v. Hazel, 271 S.W.2d 610 (Mo. App. 1954); Gottwals v. Rencher, 60 Nev. 47, 98 P.2d 481 (1940); State v. Cannon, 244 N.C. 399, 94 S.E.2d 339 (1956); Caprita v. Caprita, 145 Ohio St. 5, 60 N.E.2d 483 (1945); Highland v. Strosnider, 118 W. Va. 647, 191 S.E. 531 (1937). These cases are not persuasive authority supporting a conclusion that a court’s jurisdiction over a probationer continues after his or her discharge from probation. These cases merely apply the rule that a court may correct errors in records of proceedings had before it. In each of these cases, an action or order of the trial court failed to be recorded into the record of the proceeding. The trial court simply ordered that the record be amended to accurately reflect its judgment or action. “The errors which a judge or court has inherent power to correct at any time, except as restrained by statute, are limited to clerical and such other errors of record, as prevent it from expressing the judgment rendered.” Highland, 118 W. Va. at 648. A court may correct records “insofar as they fail to record, or improperly record, a judgment rendered by the court,' as distinguished from the correction of an error in the judgment itself, or in the failure to render the judgment.” Caprita, 145 Ohio St. at 7.
Here, in the order rescinding defendant’s discharge from probation, the district court made no findings indicating the court was correcting a clerical error in the record. Indeed, the order of discharge is very explicit and clear in the language used to terminate defendant’s probation. There is nothing in the record before us to support a conclusion that this language did not accurately reflect the court’s order of October 3, 1988, discharging defendant from probation. The October 3, 1988, order is an absolute discharge from or termination of probation. “A defendant placed on probation is under the court’s supervision pending further order or final judgment.” Commonwealth v. Brandano, 359 Mass. 332, 336, 269 N.E.2d 84 (1971). The trial court maintains continuing jurisdiction over a probationer during the time he or she is on probation. People v. Lampkins, 28 Ill. App. 3d 254, 256, 328 N.E.2d 106 (1975).
The district court’s jurisdiction over defendant ceased with the termination of his probation on October 3, 1988. The court therefore acted without jurisdiction when rescinding the order of discharge and ordering defendant back on probation on December 14, 1988. A judgment is void where the court is without jurisdiction to decide the issue. See State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983). Essential to the validity of a criminal sentence is the presence of jurisdiction by the court over the defendant, the offense charged, and the question its judgment assumes to decide. State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966). If defendant violated the law after his discharge from probation, the district court could acquire jurisdiction to adjudicate his guilt and sentence him only through the commencement of prosecution for the particular crime. See K.S.A. 22-2301(1) (“Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate.”). The order of the district court affirming the rescission of defendant’s discharge from probation is reversed.
The judgment of the district court is reversed, and the case is remanded with directions to enter an order that defendant’s probation was terminated as of October 3, 1988. | [
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PlERRON, J.:
This appeal arises out of a workers compensation claim made by Steven Matthew Killingsworth for death benefits from Claude C. Killingsworth, his father. Benefits were awarded by the administrative law judge (ALJ), whose award was upheld by the Director of Workers Compensation and the district court. The City of Wichita appeals that award, claiming that Steven was not dependent on his father at the time of his father’s death and is, therefore, not entitled to death benefits under the Workers Compensation Act, K.S.A. 44-501 et seq.
Claude Killingsworth, a firefighter for the City of Wichita, died while fighting a fire on December 31, 1988. Prior to his death, SRS had initiated a paternity action against him on behalf of Steven in an effort to recoup aid to dependent children benefits it had paid to Steven’s mother. Killingsworth died during the paternity suit, and SRS continued the action against his estate. Ultimately, after receiving evidence of DNA test results, the district court declared Killingsworth to have been Steven’s natural father.
Steven then brought this workers compensation action in an attempt to collect death benefits as a dependent of an employee who died while in the course of employment. In this action the City stipulated that Killingsworth was Steven’s natural father.
The ALJ found that since Steven was without any support other than public assistance, and since he was the natural child of Claude Killingsworth, there was no reason why he should not be held to be a wholly dependent child under K.S.A. 1991 Supp. 44-508. The Director found there was no evidence that this father/ son relationship had been severed by adoption; and since there was no limiting language in the workers compensation statutes to disqualify a natural child who had not been supported by his parent in the past, the award of the ALJ should be affirmed. The district court adopted and affirmed the order of the Director. The City timely appealed.
The issue presented is whether K.S.A. 1991 Supp. 44-510b and K.S.A. 1991 Supp. 44-508(c) should be interpreted to include a child as wholly dependent even though the child was not receiving financial support from the birth parent/employee at the time of the employee’s death and a duty of support had not been determined.
The City requests this court to construe 44-510b and 44-508(c) to mean that unless an employee (as of the time of death) is giving financial support to a child, or at least has been ordered by a court to do so, the child is not financially dependent on the employee under these statutes. A close look at the historical progress of the statutes and the amendments subsequent to certain cases reveals this to be an incorrect interpretation.
Neither the City nor the claimant denies that as of the time of Killingsworth’s death, Steven had not received any support payments from Killingsworth. As of the time of Killingsworth’s death, Steven was being supported by SRS payments to his mother.
What “wholly dependent child,” as used in 44-510b and 44-508(c), means is a question of law. Our scope of review on a question 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). Of course, in interpreting a statute “it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
We must note initially there is no indication in the record that Steven Bruce, the common-law husband of Steven’s mother who was presumed to be Steven’s father for almost 10 years, has any objection to Killingsworth being named as the child’s father. Bruce did appear in the paternity action, although he was not a party to that action. We presume the district court judgment regarding Steven’s paternity was in compliance with In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), and that it was in the best interests of the child.
It would appear this is an issue of first impression as there are no Kansas cases which have expressly ruled whether a child must be receiving support or that there be a legally established duty of support at the time of a parent’s death in order for the child to claim workers compensation death benefits. K.S.A. 1991 Supp. 44-510b provides:
“Where death results from injury, compensation shall be paid as provided in K.S.A. 44-510 and amendments thereto, and as follows:
“(a) If an employee leaves any dependents wholly dependent upon the employee’s earnings at the time of the accident, all compensation benefits under this section shall be paid to such dependent persons. . . .
“(1) If the employee leaves a surviving legal spouse or a wholly dependent child or children, or both, who are eligible for benefits under this section, then all death benefits shall be paid to such surviving spouse or children, or both, and no benefits shall be paid to any other wholly or partially dependent persons.”
The appellant would have us construe 44-510b to mean that Steven must have been financially dependent on Killingsworth’s earnings at the time of the accident. The statutory definition of “wholly dependent child,” however, does not support the appellant’s contention:
“ ‘Dependents’ means such members of the employee’s family as were wholly or in part dependent upon the employee at the time of the accident.
“(3) Wholly dependent child or children means:
“(A) A birth child or adopted child of the employee except such a child whose relationship to the employee has been severed by adoption;
“(B) a stepchild of the employee who lives in the employee’s household;
“(C) any other child who is actually dependent in whole or in part on the employee and who is related to the employee by marriage or. consanguinity; or
“(D) any child as defined in subsections (3)(A), (3)(B) or (3)(C) who is less than 23 years of age and who is not physically or mentally capable of earning wages in any type of substantial and gainful employment or who is a full-time student attending an accredited institution of higher education or vocational education.” K.S.A. 1991 Supp. 44-508(c)(l) and (3).
A plain reading of the statute convinces us a wholly dependent child includes a birth child (or natural child), whether financially dependent or not.
Steven was a birth child of Killingsworth and is, therefore, according to the statutory definition, a “wholly dependent child.” By defining a “wholly dependent child” simply as a birth child or adopted child and by not requiring that such child show a financial need or dependency, the legislature has clearly spoken. Legislative intention is expressed by omission as well as by inclusion, and when the legislature intends to make an exception or qualification to a general right, it does so expressly. See, e.g., Clintsman v. St. Joseph Hosp. of Concordia, 11 Kan. App. 2d 199, 717 P.2d 1074 (1986).
Workers compensation statutes are to be interpreted, in favor of the worker if more than one construction is possible and the construction is compatible with the legislative intent. Houston v. Kansas Highway Patrol, 238 Kan. 192, 195, 708 P. 2d 533 (1985). Assuming this, it is even more clear that a birth child is a “wholly dependent child” regardless of whether the child was relying on that employee’s earnings at the time of the employee’s death. The statutes authorizing the determination of parenthood, for instance, indicate that once a man is determined to be a child’s father “the court may include a requirement that an additional amount be paid to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered and the necessary medical expenses incident to the birth of the child.” K.S.A. 1991 Supp. 38-1121(d). (Emphasis added.)
Case law in accord with this parental support theory includes State ex rel Secretary of SRS v. Castro, 235 Kan. 704, 684 P.2d 379 (1984). In Castro the court recognized that since 1869 this state has acknowledged the obligation of parental support and that the father has a particular duty when he is the wage earner. 235 Kan. at 711. Relying on earlier Kansas cases, the Castro court stated that fathers have no right to permit their children to become public charges, and fathers of illegitimate children are still under a nonstatutory obligation to support their children who are too young to care for themselves. 235 Kan. at 711-713 (citing Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646 [1956]). See Sterling v. Mann, 4 Kan. App. 2d 520, 608 P.2d 1038 (1980).
Lending additional support to the proposition that a father’s child is a dependent regardless of whether the child is financially dependent at the time of death is Routh v. List & Weatherly Construction Co., 124 Kan. 222, 225, 257 Pac. 721 (1927). In Routh the court held that a child born after an employee’s accident and before the employee’s death resulting from the accident is still a dependent of the employee under Kansas workers compensation law even though the child was unborn and not yet financially dependent at the time of the accident. The holding of Routh was expanded in Green v. Burch, 164 Kan. 348, 189 P.2d 892 (1948). In Green the court held that an illegitimate posthumous child could recover compensation as a dependent under Kansas workers compensation law. The appellant had argued that recovery for workers compensation should be limited to legitimate children only. Once the court held that illegitimate children had not been excluded from recovery by the legislature (as it had done by limiting recovery to “legal widows” only, 164 Kan. at 354), it further concluded that illegitimate children bom both before and after the worker’s death were dependents within the meaning of the law and were entitled to maintain actions for workers compensation. 164 Kan. at 357-58. This is in accord with our general principles about interpreting workers compensation statutes.
“Throughout our many decisions construing the workmen’s compensation act since its enactment, this court has been firmly committed to the rule of liberal construction of the act in order to award compensation to the workman where it is reasonably possible to do so, and to make the legislative intent effective and not to nullify it.” Brinkmeyer v. City of Wichita, 223 Kan. 393, 396, 573 P.2d 1044 (1978).
A historical analysis of 44-508 and 44-510b further supports the interpretation suggested.
The issue in Brinkmeyer was whether a “surviving legal spouse,” who had been separated from her husband, could claim his death benefits. Just before the husband was killed, he had decided to reunite with his wife. The City of Wichita resisted paying the death benefits because it felt that the wife, who was employed, was not “dependent” upon the husband’s salary. The controlling statute in effect in Brinkmeyer, K.S.A. 1974 Supp. 44-510b, read as follows:
“Where death results from injury, compensation shall be paid ... as follows: :
“(a) If a workman leaves any dependents wholly dependent upon his earnings at the time of the accident, all, compensation benefits under this section shall be paid to such dependent persons.”
The statute goes on to determine how the money should be distributed between a surviving legal spouse and dependent children. The court found a conclusive presumption of dependency for surviving legal spouses and held that it conformed with the definition of “dependent” contained in K.S.A. 1974 Supp. 44-508. The court said, “Such a construction gives meaning to the act’s reference to surviving spouses on the . one . hand and dependent children on the other, which explains the absence of provisions for partially dependent spouses.” 223 Kan. at 397. Brinkmeyer was announced January 21, 1978.
The 1979 Kansas Legislature amended.K.S.A. 44-508 and 44-510b. The relevant changes included substituting “surviving legal spouse and children” in 44-508 for the prior language of “legal widow or husband, as the case may be, and children.” Additionally, an entirely new section was added as 44-508(c)(3), defining “wholly dependent child or children.” At that time 44-508(c)(3)(A) read: “A natural or adopted child or a stepchild of the employee who lives in the employee’s household.” The latter amendment could have been subject to two interpretations: First, that a natural child, an adopted child, and a stepchild were all required to, live in the employee’s household to be “wholly dependent”; second, that a natural or adopted child was simply considered to be “wholly dependent,” while a stepchild was required to live in the employee’s household in order to be “wholly dependent.”
After the 1979 amendments, Hegwald v. Clarkson Constr. Co., 7 Kan. App. 2d 375, 642 P.2d 573 (1982), was decided. The issue in Hegwald was whether the children of the deceased worker were “wholly dependent” on their father’s earnings as required by 44-510b at the time of his death. The trial court found this was a question of fact and looked for substantial competent evidence. It found that the father was under a legal obligation to support the children as there had been a divorce and the father had been ordered to pay child support. In that case the court found that a natural father has a legal duty to support children and that duty gives children a reasonable expectation of future support. The court held there was substantial competent evidence to support the trial court’s determination that the children had a reasonable expectation of support from their father and were “wholly dependent” upon him for their support at the time of his death, despite the fact that the father had not been paying support and the children were actually receiving money from SRS through their mother. 7 Kan. App. 2d at 377.
After Hegwald, the legislature again amended 44-508 and 44-510b. Hegwald was filed March 18, 1982, and the 1983 legislature redefined a “wholly dependent child” as “[a] natural or adopted child of the employee except such a child whose relationship to the employee has been severed by adoption.” L. 1983, ch. 167 § 1. Noticeably absent from the new definition of a wholly dependent child was the requirement that the child live in the employee’s household. “Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect.” [Citation omitted.] Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
Subsequent amendments have made the statute clearer. The definition of a wholly dependent child was amended by the 1991 legislature to read: “A birth child or adopted child of the employee except such a child whose relationship to the employee has been severed by adoption.” K.S.A. 1991 Supp. 44-508(c)(3)(A). The most recent amendment makes it even more apparent that the statute intends to include a person s biological child as a “wholly dependent child” of that person as far as the Kansas Workers Compensation Act is concerned. That child then is entitled as a dependent to make a claim when the worker dies.
The City construes language in 44-510b which requires that the dependent be wholly dependent “at the time of the accident” to require a financial dependency on Killingsworth at the time of his death. This contention simply is not supported by the statute. The statute uses the words “wholly dependent child” and chooses to define those words. The legislature has chosen the words and the definition, and we must structure our interpretation in accordance thereto.
Our decision is in accord with the deference that we should give the Director s order. While the Director’s order is not binding on this court, his opinions are subject to this court’s careful consideration since he is the person charged with day-to-day administration of the Workers Compensation Act. Brinkmeyer, 223 Kan. at 397. It is also in accord with the obvious purpose of the Act, which is “to secure workmen and their dependents against becoming objects of charity by allowing reasonable compensation for all such calamities as are incidental to employment.” Green v. Burch, 164 Kan. 348, 356, 189 P.2d 892 (1948).
We affirm the trial court’s order affirming the order of the Director of Workers Compensation. | [
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Prager, C.J.
Retired: Lloyd D. Farr (defendant-appellant) appeals a judgment of the district court ordering that the joint income tax refunds of the defendant and his wife, Lola Farr, be applied to satisfy a judgment against Lloyd alone and in favor of Eldon Parkman (plaintiff-appellee).
The facts in the case are undisputed and are as follows: On March 29, 1985, Parkman was granted a judgment against Lloyd Farr and Care Systems, Inc., for $1,288.72 plus costs and interest. On December 18, 1989, a hearing in aid of execution was held before a district magistrate judge. Lloyd and Lola Farr were ordered to file income tax returns for the years 1986 through 1989 and to deliver any tax refunds received to the district court for credit upon the prior judgment. The Farrs filed joint income tax returns for 1986 through 1988. Copies of the tax returns indicated the Farrs were due federal tax refunds in the total amount of $2,845.53 and Kansas state tax refunds in the amount of $816.73- All refund checks were payable jointly to Lloyd and Lola Farr.
Lloyd Farr filed a motion in district court for release of the income tax refunds on April 12, 1990, claiming that only $37.50 of the tax refunds belonged to him personally, with the balance belonging solely to his wife, Lola. The magistrate judge dismissed the motion and ordered Lloyd Farr to pay all refunds to the clerk of the district court within 10 days.
Lloyd appealed to a district judge, who held that the tax refunds were the joint property of Lloyd and Lola Farr and denied the appeal. Lloyd then appealed to the appellate courts.
The sole issue presented on the appeal is whether the district court erred in holding that the tax refunds in question were the joint property of the defendant and his spouse and so could be taken and applied on a judgment against the defendant alone.
We hold that the district court was in error and that, under the undisputed facts contained in the record, the case must be reversed. The tax forms introduced into evidence show that only Lola Farr had wages from which monies for federal and state income taxes were withheld. These withholdings from Lola’s wages were the only source for the tax refunds made to the Farrs.
Kansas law prevents one spouse’s separate earnings and property from being subjected to payment for the other spouse’s debts. The law subjects only the husband’s property for payment of a debt incurred by him alone. See K.S.A. 23-201(a).
The law is well established that the existence of any property rights in a tax refund from the filing of a federal or state joint income tax return is determined under state law. See Duden v. United States, 467 F.2d 924, 929 (Ct. Cl. 1972); Estate of Trecker, 62 Wis. 2d 446, 450, 215 N.W.2d 450 (1974).
Section 6013 of the Internal Revenue Code provides for the filing of joint tax returns. The purpose of section 6013 is to equalize the tax burden for married persons in all states, eliminating disparities between common-law and community property states. In re Carson, 83 N.J. Super. 287, 290, 199 A.2d 407 (1964). Congress did not intend this provision to affect or change the ownership of property rights between taxpayers. In re Wetteroff, 453 F.2d 544, 547 (8th Cir.), cert. denied 409 U.S. 934 (1972). “[TJhe filing of a joint return does not have the effect of converting the income of one spouse into the income of the other” and “a joint income tax return does not create new property interests for a husband or wife in each other’s income tax overpayment.” Rosen v. United States, 397 F. Supp. 342, 344 (E.D. Pa. 1975).
It is likewise true that “the mere filing of a joint tax return by a husband and wife does not render the property taxed or the tax paid joint property or property held by the two as tenants by the entireties.” McClelland v. Massinga, 786 F.2d 1205, 1210 (4th Cir. 1986). Income tax refunds cannot be granted or devised and so it has been held that, under Kansas law, no tenancy in common or joint tenancy can be created in them. In re Ballou, 12 Bankr. 611, 612 (Bankr. D. Kan. 1981). See K.S.A. 58-501.
In the present case, the refund checks returned the excess of funds withheld solely from Lola Farr’s earnings. “It is well settled that ‘[s]pouses filing a joint return have separate interests in any overpayment, the interest of each depending on his or her income, i.e., an overpayment is apportionable to a spouse to the extent that he or she contributed to the overpaid tax.’ ” Gens v. United States, 615 F.2d 1335, 1342 (Ct. Cl. 1980), cert. denied 459 U.S. 906 (1982). The case law of other jurisdictions seems in agreement that the interest of each spouse to a refund on a joint return should be allocated proportionate to the respective withholdings of earnings contributed. See Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir. 1985); Rosen v. United States, 397 F. Supp. at 343; In re Buchholtz, 259 F. Supp. 31, 32 (D. Minn. 1966); In re Levine, 50 Bankr. 587 (Bankr. S.D. Fla. 1985); Matter of Crum, 6 Bankr. 138, 140 (Bankr. M.D. Fla. 1980). The fact that the filing of a joint return made additional tax credits or deductions available does not change the fact that all the monies withheld and creating the overpayment were Lola Farr’s earnings. We hold that all the tax refunds are the sole property of Lola Farr and that the court erred in finding them to be the joint property of the Farrs and accessible to Lloyd Farr’s judgment creditor.
The judgment of the district court is reversed. The case is remanded to the district court with directions to release all income tax refunds to Lola Farr as her separate property. Costs are taxed to the appellee.
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Briscoe, C.J.:
Defendant Miguel Aleman appeals the sentence imposed following his nolo contendere plea to possession of cocaine (K.S.A. 1991 Supp. 65-4127a). Aleman contends the court improperly applied K.S.A. 1991 Supp. 21-4608(3) to conclude that a consecutive sentence was mandatory. He argues the court should have relied upon K.S.A. 1991 Supp. 21-4608(8), which gives the court discretion to impose either a consecutive or a concurrent sentence. Aleman seeks remand to the district court for resentencing.
Aleman also appeals from the denial of his post-conviction motion filed pursuant to K.S.A. 60-1507. In his motion, he alleged there was insufficient evidence to support his plea and also made indirect allegations concerning the adequacy of his counsel. On this issue, Aleman seeks reversal of the denial of his 60-1507 motion and remand to the district court for appointment of counsel and an evidentiary hearing.
Aleman was on probation from a deferred sentence for aggravated assault with a deadly weapon in Wyoming when he committed the crime alleged in the present case. The district court sentenced Aleman to 3 to 10 years’ imprisonment on the present charge and ordered the sentence to run consecutively to any sentence that was imposed or reimposed by the state of Wyoming. The court stated it was imposing a consecutive sentence because the present offense was committed while Aleman was on parole, probation, or deferred sentence from the state of Wyoming and, as a result, a consecutive sentence was mandated by 21-4608.
Approximately three months after sentencing, Aleman filed a 60-1507 motion alleging he was being held in custody unlawfully because of insufficient evidence. He also alleged he had been inadequately represented by his trial counsel. The district court summarily denied the motion by stating that the record amply supported the conviction and that Aleman had failed to assert grounds and supporting information sufficient to grant his requested relief.
While this appeal was pending, Aleman was paroled from his Kansas sentence and returned to Wyoming on a detainer. Therefore, before reaching the merits of the issues presented, we must first determine whether his subsequent release on parole renders this appeal moot. An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy. State v. Zirkle, 15 Kan. App. 2d 674, 676, 814 P.2d 452 (1991).
Were Aleman to prevail on the issues raised in this appeal, the result could be an order allowing the withdrawal of his plea and/or the imposition of a concurrent father than a consecutive sentence. These events would directly affect either Aleman’s conviction of possession of cocaine or the length of sentence Aleman would serve if his parole were revoked. Therefore, Aleman’s release on parole does not render this appeal moot. See Zirkle, 15 Kan. App. 2d at 677.
Mandatory Consecutive Sentence
It is undisputed that Aleman was on probation from a felony conviction in the state of Wyoming at the time he committed the present crime in Kansas. K.S.A. 1991 Supp. 21-4608(3) provides:
“Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole or on conditional release for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or' on parole or conditional release.”
Aleman contends 21-4608(8) applies and affords the sentencing court discretion as to whether to impose consecutive or concurrent terms:
“(8) When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant’s sentence in a Kansas state court, the court may direct that custody of the defendant may be relinquished to federal or other state authorities and that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed.”
As regards the decision to sentence Aleman to a consecutive sentence, the court ordered that the sentence in the present case “run consecutively pursuant to K.S.A. 21-4608 to any sentence which may be imposed or reimposed by the state of Wyoming since this offense was committed while on parole, probation or deferred sentence from the state of Wyoming.” The court exr plained the sentence by saying:
“I could have sentenced you to a minimum of five years and . a maximum of 20 years. I chose to sentence you to the minimum-minimum of three and a minimum-maximum of 10 as provided by our statutes on the basis that I have had to invoke 21-4608 as mandated by our legislature.”
From these statements, it is clear the court believed it had no discretion to impose a concurrent sentence which would allow Aleman to serve his present sentence concurrently with any senténce that may bé imposed or reimposed by Wyoming for violation of, probation.
The State argues the court did riot err in applying 21-4608(3), which mandates imposition of a consecutive sentence for a crime committed while on probation. Further, the State argues 21-4608(8) does not apply to Aleman because he was not “under sentencé” or “subject to sentence” in Wyoming. While the State admits Aleman was on probátiori for a Wyoming conviction, it argues that, absent some “adjudicatory action” to revoke Aleman’s probation, he is not “under sentence” or “subject to sentence” as required by 21-4608(8). Aleman relies upon Zirkle to argue “under. sentence” or “subject to sentence” clearly encompasses parole and probation.
K.S.A. 1991 Supp. 21-4608(3) governs sentencing of those, who commit crimes while on probation and mandates that new sentences be served consecutively to terms for which persons are on probation. K.S.A. 1991 Supp. 21-4608(8) governs sentericing of those “under sentence’’ or “subject to sentence” in other jurisdictions and allows the court to use its discretion in determining whether sentences should be served consecutively or concurrently with sentences ordered in other jurisdictions.. There is a potential conflict iri the statutes because a person on probation in another jurisdiction is arguably also “under sentence” in that jurisdiction. When such a person is sentenced in Kansas for a crime' committed while on probation from a sentence iri another jurisdiction, as Aleman is in this case, both statutes arguably apply.
The rules of statutory construction are well known to this court. “When a penal statute is questioned, the cpurt is required to strictly construe the act in favor of the accused.” State v. Magness, 240 Kan. 719, 721, 732 P. 2d 747 (1987). “The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.” State v. Carmichael, 240 Kan. 149, 159, 727 P.2d 918 (1986), aff'd on other grounds 247 Kan. 619, 801 P.2d 1315 (1990): “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988).
“ ‘When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. [Citations omitted.]’ ” State v. Wilcox, 245 Kan. 76, 78, 775 P.2d 177 (1989) (quoting lit re K.J., 12. Kan. App. 2d 188, 189, 737 'P.2d 874 [1987]).
There is a conflict between 21-4608(3) and 21-4608(8) only if we conclude persons who are on probation can also fall within the definition of those persons who are “under sentence” and “subject to sentence.” Probation is defined in K.S.A. 1991 Supp. 21-4602(3):
“ ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the coúrt after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court. In felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of probation.”
A reading of this statute leads to the conclusión‘that probation is not a sentence; rather, it is a procedure followed after sentence is imposed. Probation is one way a person can serve the sentence imposed. Thus, using the common definitions of the words in the statutes, a person on probation is also “under sentence.” Given this conclusion, there is a conflict between the statutes.
We next must determine the meaning of “under sentence” and “subject to sentence” as this language is used in 21-4608(8). First, we have already concluded a person on probation is “under sentence.” Second, it is common for persons charged with crimes in two jurisdictions to be tried and sentenced in one jurisdiction and then transferred to the second jurisdiction to be tried and sentenced if convicted. In those cases, when the person is sen tenced in the second jurisdiction, that person is clearly “under sentence” in the first jurisdiction. Third, in Zirkle, 15 Kan. App. 2d at 676-77, this court held that a person on parole is still governed by the sentence imposed. Although the interpretation of 21-4608(8) was not at issue or addressed in Zirkle, the import of our holding in Zirkle was that a person on parole is still “under sentence.”
Since the . phrases “under sentence” and “subject to sentence” as used in 21-4608(8) can apply in at least three different situations, we must conclude this statute is a general statute governing the various situations when a person convicted of a crime in Kansas is “under sentence” or “subject to sentence” in another jurisdiction. In contrast, 21-4608(3) applies only to those persons who are convicted of committing crimes while on probation or parole. Therefore, 21-4608(3) governs a specific aspect of the situations generally governed by 21-4608(8).
The final question is whether the legislature intended the general statute to govern the specific. We find no basis for such a conclusion. Since 21-4608(8) leaves determinations about consecutive or coiicurrent sentences to the district court’s discretion and 21-4608(3) mandates consecutive sentences, it would appear the legislature intended the specific statute to govern when persons commit crimes while on probation or parole. That position is reasonable, logical, and consistent with traditional rules of statutory construction and makes sense in light of the legislature’s intent as gleaned by reading the statutes at issue.
Probation. from serving a sentence is an act of grace by the sentencing judge and is granted as. a privilege, not as a matter of right. State v. Walbridge, 248 Kan. 65, 68, 805 P.2d 15 (1991). Likewise, parole is a privilege, not a constitutional right, and mere eligibility for parole does not entitle the prisoner to parole at the end of a minimum term. Parker v. State, 247 Kan. 214, 217, 795 P.2d 68 (1990). When reviewing the language of both 21-4608(3) and 21-4608(8), we, see an intent expressed by the legislature to punish more severely those persons who commit additional crimes while enjoying the. privilege of conditional release on probation or parole.
Aleman argues that 21-4608(3) applies only to persons who commit crimes in Kansas while on probation or parole from a Kansas court or pároling authority i If we were tó adopt the raT tionale suggested by Aleman, persons who commit additional crimes in the state of Kansas while on probation or paróle from a Kansas conviction would suffer more severe consequences than their counterparts who have been released on probation or parole in other states. It is more logical to conclude that in adopting this provision the legislature intended to treat all-persons coming before Kansas courts the same and, further, tó address in a more severe way those persons who commit crimes in Kansas 'while on parole or probation regardless of the location of the releasing authority. The district court did not err in concluding 21-4608(3) controls in this case and that a consecutive sentence is mandated.
Denial of K.S.A. 60-1507 Motion
Finally, we address whether the district court erred in denying Aleman’s 60-1507 petition. The only question directly raised in the motion is whether there was sufficient evidence to support his nolo contendere plea. Aleman did not directly assert ineffective assistance of counsel as a ground for overturning his conviction. However, in answer to- the question on the form as to whether the motion is based upon inadequate representation, Aleman responded: “Didn’t bring up all the facts about them not having no fingerprints, no márk money, no recording and no cocaine in my possession when searching my premises or me.” This statement could be interpreted to mean that Aleman felt his counsel did not sufficiently inform him of the lack of evidence against him. The district court addressed this issue and concluded “the record amply supports the conviction.” The court also commented that “the transcript of said arraignment and plea reflects the petitioner was fully apprised of his Constitutional rights and the nature and penalty of the allegations against him.”
Aleman claims his counsel failed to inform him of the lack of evidence against him and, therefore, his plea was not entered knowingly. The parties agree that, to set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, Aleman must show that counsel’s performance fell below the standard of reasonableness and there is a reasonable probability that, but for counsel’s unprofessional errors, the re- suits of the proceedings would have been different. Hill v. Lock-hart, 474 U.S. 52, 57, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985).
The record of the preliminary examination reveals that Aleman was present with his attorney. On cross-examination of the officer by defense counsel, the following occurred:
“Q. The hundred-dollar bill that you say you gave to Mike, do you know its serial number or did you make any identifying marks on it?
“A. No, I did not.
“Q. Okay. Do you know where that money is today?
“A. No, sir, I do not.
“Q. Any of the conversations that you had allegedly with Mike as to the formation of this purchase contract, were they recorded?
“A. No, sir, they were not.
“Q. Were there any other witnesses to the transaction?
“A. No, sir, there was not.
“Q. Was there any attempt to secure any fingerprints off of that package?
“Q. No, sir.”
Aleman’s presence during this proceeding gave him the opportunity to hear what evidence the State had against him on the charge of possession of cocaine. When Aleman heard the testimony of the officer, he was put on notice of the evidence against him.
Aleman has failed to prove his counsel’s conduct fell below the objective standard required in Hill. He has also failed to prove the second prong of prejudice which is required in Hill.
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Rees, J.:
Defendants Lance D. Hedrick and Nancy E. Hedrick appeal from a conditional order of enforcement of an installment land contract forfeiture clause. The Hedricks defaulted by ceasing to make payments. We affirm.
The contract with which this litigation is concerned is a contract for deed entered into by and between plaintiff John P. Dallam III, as seller, and the Hedricks, as buyers, on December 12, 1986. These are the now pertinent provisions of the contract:
“[F]or the consideration hereinafter specified, the seller hereby sells, and agrees to convey to [the] buyer, the following described land . . . [7435 Woodson, Overland Park, Kansas].
“IN CONSIDERATION WHEREOF, [the] buyer hereby promises to pay the seller [$57,400] as follows:
[$4,000] in hand and [$53,400] as follows: [1] $42.85 on the 1st day of January, 1987, and $42.85 on the 1st day of each succeeding month thereafter with interest at the rate of 11 percent per annum, with the remaining unpaid balance, if any, due in full on or before December 1, 1992, or until the principal amount of $4,500.00 has been paid in full, and [2] $467.56 on the 1st day of January, 1987, and $467.56 on the 1st day of each succeeding month thereafter. Said amount [$467.56] is the principal and interest payment on the 1st mortgage held by Rothschild Financial. [The $467.56 payment] shall be due until the above first mentioned $4,500.00 has been paid in full. At that time, buyer shall assume said first mortgage [held by Rothschild]. . . . The buyer [is] to have possession of said real estate from this time.
“On full payment of the sums of money and interest aforesaid, . . . the seller shall convey said land to the . . . buyer by [warranty] deed ....
“It is expressly understood and agreed that Time Is the Essence of This Contract and that if the buyer shall fail to pay any installment, [or] interest . . . for a period of 11 days after said payment shall become due and payable, then the amount theretofore paid by the buyer shall ... be forfeited to the seller as liquidated damages for breach of this contract, and on such default, it will be lawful and proper for the seller, . . . without notice, to take possession of said premises . . . .” (Emphasis added.)
The contract plainly entitles the Hedricks, the buyers, to the possession and occupancy of the subject residence as of thé date of the contract and thereafter , throughout the period for satisfaction of the $57,400 purchase price. However, within the contract are a punctuality of payment (“time is of the essence”) provision and a forfeiture clause.
The Hedricks timely made 24 monthly payments of $510.41 ($42.85 + $467.56 = $510.41) from and after the execution of the contract. They made no payments thereafter. Their last payment was made as of December 1, 1988. They vacated the premises as of March 17, 1989. On June 20, 1989, the trial court ordered enforcement of the contract forfeiture clause but granted to the Hedricks the right to avoid that outcome if they would bring their payments current by July 31, 1989, a date 41 days after the trial court decision, 136 days after they vacated the premises, and some seven months after they defaulted upon failing to make payments as of January 1, 1989. The order made was of the sort approved in Vaughn v. Kauer, 147 Kan. 189, 75 P.2d 228 (1938).
Under the contract, the purchase price principal is to be paid by payment of (1) $4,000 upon execution of the contract, (2) $4,500 through monthly payments of $42.85 each to Dallam, and (3) $48,900 first through monthly payments of $467.56 each to Dallam until the $4,500 is paid and then through payment of $467.56 each month pursuant to their assumption of Rothschild’s first mortgage. The contract provision concerning the $4,500 to be paid to Dallam contemplates 72 monthly payments January 1, 1987, through December 1, 1992) subject to possible prepayment(s).
The contract effectively provides that the Hedricks are to pay 11% interest incident to their payments in satisfaction of the $4,500 element of their payment obligation and interest at an unspecified rate incident to their payments in performance of the $48,900 element of their payment obligation.
We find it to be beyond sincere dispute that each monthly payment of $42.85 and $467.56 is to be first applied to the payment of interest then due with the balance of the payment to be applied to reduction of the unpaid principal balance. To illustrate, the first $42.85 payment would be applied to interest payment of $41.25 (V12 X .11% X $4,500 = $41.25) with $1.60 ($42.85 — $41.25 = $1.60) applied to reduction of principal, leaving an unpaid principal balance of $4,498.40 ($4,500 — $1.60 — $4,498.40). The second $42.85 payment would be applied to interest payment of $41.24 (V12 X 11% X $4,498.40 = $41.24) with $1.61 ($42.85 — $41.24 = $1.61) applied to reduction of principal, leaving an unpaid principal balance of $4,496.79 ($4,498.40 — $1.61 = $4,496.79). Our calculations reveal that, upon the Hedricks’ twenty-fourth monthly $42.85 payment 0anuary 1, 1987, through December 1, 1988), they had paid interest in the total amount of $985.67 and $42.73 toward reduction of principal, leaving a then unpaid principal balance of $4,457.27. Assuming there had been continued regular payments through December 1, 1992, (72 months) and no prepaid payment(s) of principal, the then unpaid principal balance would be $4,337.85 after total payment of $2,923.05 in interest and an aggregate reduction of principal in the amount of $162.15. A total sum of $3,085.20 (72 X $42.85 = $3,085.20 and $2,923.05 + $162.15 = $3,085.20) would then have been expended by the Hedricks in making the $42.85 payments. According to the contract, as of December 1, 1992, the last monthly $42.85 payment and the $4,337.85 unpaid principal balance would both then be due and owing and, upon their payment, the Hedricks’ performance of the $4,500 element of their purchase price obligation would be completed.
As to the first mortgage held by Rothschild, neither the terms thereof nor the applicable rate of interest is revealed by the contract or elsewhere in the record on appeal. (For some presently unexplained reason, neither party has seen to it that any hearing transcript is included in the record on appeal.) Nonetheless, by his brief Dallam has represented to us that the interest rate is 11%. Inasmuch as the Hedricks have not challenged that representation by way of a reply brief or otherwise, we take the representation to be correct. Thus, upon using the same arithmetic calculations as previously described in regard to the $4,500 element of the purchase price obligation of the Hedricks, we find that upon 24 months’ timely payments of $467.56, or a total expenditure of $11,221.44 (24 X $467.56 = $11,221.44) by the Hedricks, interest in the aggregate sum of $10,705.70 was paid and $515.74 in the aggregate was paid toward satisfaction of the $48,900 element of the purchase price obligation leaving $48,384.26 in unpaid principal. Had there been timely monthly payments of $467.56 for 72 months, $33,664.32 (72 X $467.56 = $33,664.32) would have been expended by the buyer with interest in the total sum of $31,707.37 having been paid and the aggregate sum of $1,956.95 having been paid toward satisfaction of the $48,900 element of the purchase price obligation, leaving $46,943.05 ($48,900 — $1,956.95 = $46,943.05) in unpaid principal.
After the Hendricks had made their 24 payments of $510.41 ($42.85 + $467.56 = $510.41), the aggregate payment by them toward satisfaction of the $57,400 purchase price was $4,558.47 ($4,000 + $42.73 + $515.74 = $4,558.47) or 7.9% of the purchase price. To treat the Hedricks’ total expenditure of $16,249.84 ($4,000 + $1,028.40 + $11,221.44 = $16,249.84) as the aggregate fractional part of the purchase price paid simply is incorrect factually. Otherwise put, it was incorrect for the Hedricks to represent and the trial court to consider that the Hedricks had paid 28% ($16,249.84 -r- $57,400 = 28.3%) of the purchase price when they defaulted.
Fifty years ago, our Supreme Court had this to say in Stevens v. McDowell, 151 Kan. 316, 319-20, 98 P.2d 410 (1940):
“The bench and bar of this state have long been familiar with a form of real-estate contract between two parties, whom for convenience we will name as the owner-vendor and the tenant-vendee, in which the former names a price at which he will sell the property and names a specified amount to be paid monthly, and in which he agrees to let the latter into possession upon condition that if the monthly payments are made until their aggregate sum amounts to the specified purchase price the property shall be . conveyed to the latter; but if the tenant-vendee fails in his monthly payments then ... he shall have no interest in the property .... If the down payment by the tenant-vendee has been negligible, and his monthly payments have been but few or have only been paid irregularly, to the manifest loss of the owner-vendor, the contract will ordinarily be enforced according to its terms. [Citations omitted.]
“But if the monthly payments have been made with reasonable promptness and have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial payment of the purchase price . . . then equity may not permit the interest of the tenant-vendee to be summarily extinguished . . . but will deal with the situation according to equitable principles, and may require proceedings as in equitable foreclosure before the interest of the latter can be extinguished. Cases illustrating various- aspects of this doctrine run through all our reports. [Citations' omitted. ]
“The logical deduction from the doctrine stated above is that where the periodical payments by the tenant-vendee in their aggregate amount to a substantial part of the purchase price he . . . acquires ... an equitable” interest in the property
In the comprehensive Kansas Law Review article oh the subject of forfeiture of installment land contracts, Hines, Forfeiture of Installment Land Contracts, 12 Kan. L. Rev. 475, 485 (1964), this is found:
“If the: down payment by the vendee has been negligible, and his periodic payments have been .but few or have only been paid irregularly, to the manifest loss of the vendor, the contract will ordinarily be enforced according to its terms. Oh the other hand if the monthly payments have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial páyment on the purchase price, or where substantial payment on the purchase price . . . [has] been made by the vendee, then equity may not permit the interest of the vendee to be summarily extinguished, but will deal with the situation according to equitable principles. Proceedings as in equitable foreclosure may be required before the vendee’s interest is extinguished.”
The dispositive issue for our resolution on this appeal is whether the trial court abused its discretion in concluding that the Hedricks had not made “substantial payment on the purchase price” which would have precluded forfeiture. With no hesitance, we find that the trial court did not abuse its discretion in concluding the Hedricks had not made “substantial payment” and, therefore, did not commit reversible error.
As demonstrated, the proportion of the purchase price paid here was only some 8%. We have been referred to and know of no cases rejecting forfeiture where the proportion of the purchase price paid was so little. For example, see cases cited at 12 Kan. L. Rev. at 485 n.52.
No reversible error occurred stemming from the trial court’s mistaken consideration of 28% as the proportion of the purchase price paid by the Hedricks.
The Hedricks assert that “where the residence in question is transferred pursuant to a contract for deed, the defendants are entitled to an equitable foreclosure.” They rely on Mustard v. Sugar Valley Lakes, 7 Kan. App. 2d 340, 642 P.2d 111 (1981), rev. denied 230 Kan. 818 (1982), as their authority for that assertion. Their reliance is misplaced. Although Mustard’s Syl. ¶ 1 states that “[a] purchaser of land under an installment contract for deed is entitled to equitable foreclosure,” no more than a cursory reading of that opinion is required to discern that it simply does not support the unqualified proposition expressed in the syllabus statement.
“[Statements in a judicial opinion or syllabus thereof must be read and interpreted in light of the issue involved and the facts giving rise to what is said.” Hartman v. Nordquist, 8 Kan. App. 2d 213, 214, 653 P.2d 1199 (1982). “What is said in an opinion or the syllabus thereof always is to be read and interpreted in the light of the facts and questions present in the case. [Citations omitted.] Otherwise, language meaningful for one case may erroneously become dogma for other cases despite essential differences. [Citation omitted.]” State v. Reed, 8 Kan. App. 2d 615, 623-24, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983) (Rees, ]., dissenting and concurring). See McKinney, Administrator v. Miller, 204 Kan. 436, 437, 464 P.2d 276 (1970).
The Hedricks complain that they were granted too short a “redemption period.” They assert they should have been allowed time on the order of 60 days following June 20, 1989. Of course, that argument simply suggests that a statutory period for redemption from foreclosure sale should have been allowed here. Statutory redemption periods are inapplicable to cases such as the one before us. “It is well settled that the statutory redemption period has no place in the enforcement of land contracts unless the vendor seeks to foreclose his lien by sale.” 12 Kan. L. Rev. at 486.
The trial court did not err.
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Rulon, J.:
Guy Agnew, the plaintiff in a personal injury action, appeals from the district court’s grant of a directed verdict in favor of the defendant Dillons, Inc., claiming the court erred in: (1) holding that Dillons did not breach the duty of care owed by a business proprietor to an invitee; and (2) refusing to admit evidence that Dillons failed to provide a handrail. We affirm in part, reverse in part, and remand for further proceedings.
The essential facts are as follows:
On the morning of February 1, 1988, plaintiff stopped at a Dillons grocery store in Olathe around 7:45 a.m., spending ap proximately 15 minutes inside the store purchasing some items. An ice storm was in progress that morning. The entrance to Dillons was approached by walking up a ramp. On this particular morning, a red carpet mat was placed on the ramp. While leaving the store and walking down this ramp, plaintiff slipped and fell, incurring several injuries.
Among other allegations, plaintiff alleged in his petition that Dillons was negligent in not removing ice and snow from the mat and entrance to the store. At trial, Captain Steven Blackwell of the Olathe Fire Department testified he was among the emergency personnel dispatched to Dillons the morning of plaintiff’s fall. The team was dispatched- at 7:55 a.m., but response time was delayed because of icy streets. Blackwell testified there was an ice storm that morning and the streets were icy, although he did not recall the specific condition of the pavement at Dillons. While Blackwell could not remember at trial whether ice was falling at the time of his arrival at Dillons, he testified in a deposition about six months after the incident, that ice was falling when he arrived at the store and continued to fall while he was at that location.
Robert Maib, manager of the Dillons store, testified that he arrived at the store around 7:30 a.m. on February 1, 1988, and that a sleet-type precipitation was falling and freezing as it accumulated. Maib further testified that when he arrived at the store, someone had already placed a mat on the ramp because of the ice. (A mat is not usually kept on the ramp.) The mat was a thick cloth carpet, about three-fourths of an inch high, and actually intended for indoor use.
Plaintiff testified precipitation was falling as he drove to. the Dillons store and as he entered the store, but he had no trouble walking up the entrance ramp. He further testified that probably no precipitation was falling when he left the store. Plaintiff additionally testified that as he left the store, he began sliding' on the ramp, reached for a handrail, and fell. After falling, he testified he ran his hand across the mat and felt an accumulation of ice. According to plaintiff, precipitation was falling when he was taken to the hospital by ambulance.
Plaintiff made a proffer, in chambers, that he grabbed for a handrail as he fell and would have perhaps avoided the fall if a handrail had been in place.
After the close of plaintiffs evidence, Dillons moved for a directed verdict, essentially claiming plaintiff failed to meet his burden of proof because a business proprietor has no duty to remove or clean an area of snow while precipitation is falling and for a reasonable time thereafter. The district court granted Dillons’ motion.
Additional facts, as needed, will be included in our discussion of the issues.
THE DUTY
Plaintiff s argument that a business proprietor breaches the duty owed to invitees by not removing snow or ice during an ongoing winter storm is contrary not only to Kansas law, but to the law in a majority of jurisdictions.
Clearly, a proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. Knowles v. Klase, 204 Kan. 156, 157, 460 P.2d 444 (1969). However, a propriétor or operator of a trade or business is not an absolute insurer of the safety of customers. Steinmeyer v. McPherson, 171 Kan. 275, 278, 232 P.2d 236 (1951).
When confronted with the precise issue of whether a business proprietor breaches this duty of ordinary care by not removing accumulated ice, snow, or other precipitation from outside areas during a storm, other jurisdictions have held the duty is not breached. Walker v. The Memorial Hospital, 187 Va. 5, 45 S.E.2d 898 (1948), is a case often cited in support of this rule. In Walker, the plaintiff arrived at the hospital at 4:30 p.m. to visit her husband, a patient. The steps outside the hospital entrance were not ice covered, but snow had been swept to the sides of the steps and the platform leading to the door. 187 Va. at 9. Snow had fallen that morning and between the hours of 2 p.m. and 5 p.m. The steps were wet although not frozen at 6 p.m. About 6 p.m., freezing rain fell, and the steps became slippery about 7 p.m. Around 8:30 p.m., a light freezing rain fell. 187 Va. at 10-11. The plaintiff did not know snow had fallen during the afternoon. She left the hospital at 9 p.m. and, as she started down the steps, she placed her hand on the handrail. There appeared to be no ice on the steps, but as the plaintiff stepped down on the second step, she slipped and fell. The area had not been treated with an ice-melting substance nor had any warning signs been posted. No precipitation was falling at the time of the plaintiff’s slip and fall. 187 Va. at 9.
The Walker court noted “there was a fairly continuous condition of freezing rain or sleet from before seven o’clock until eleven-thirty p.m., and that the conditions on the city sidewalks, and on the platform and steps of the hospital, were slippery, and that this was known to the hospital authorities.” 187 Va. at 11. The court then concluded that a business establishment, absent unusual circumstances, may await the end of a storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier. 187 Va. at 13.
The court further reasoned that “[e]very pedestrian who ventures out at such time knows [he or she] is risking the chance of a fall and of a possible serious injury.” 187 Va. at 22. A requirement that a business proprietor continually expend effort during a winter storm to remove precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden which is beyond that of ordinary care. Furthermore, “since the storm had not finally terminated, the exercise of reasonable care no more required defendant to warn of the result of the weather than it did to remedy the result.” 187 Va. at 24. Ultimately, the Walker court affirmed the action of the trial court in setting aside the jury’s verdict for the plaintiff. 187 Va. at 24.
The Minnesota Supreme Court, citing Walker as well as cases from Iowa, Pennsylvania, and New York, adopted the same rule in Mattson v. St. Luke's Hospital, 252 Minn. 230, 233, 89 N.W.2d 743 (1958). The Mattson court held: “The fact that the possessor [of property] may have attempted to take corrective measures during the storm’s progress does not change the situation even though such measures were temporarily effective.” 252 Minn. at 233.
Although.no published Kansas cases discussing the precise issue before us were found, our Supreme Court has held that a municipality has no duty to clear streets and sidewalks of ice that has accumulated and become rough and rutted, absent sufficient notice and opportunity to remedy the situation. Speakman v. Dodge City, 137 Kan. 823, 829, 22 P.2d 485 (1933). In Speakman, more than four inches of snow had fallen on December 14. On December 17, the plaintiff was crossing an alley between two city streets when she slipped and fell. She alleged the City negligently allowed the snow and ice to remain and become ridged and uneven.
In reaching its holding, the Speakman court stated as follows:
“The general rule with respect to snow and ice is that municipal corporations are not held liable for injuries to persons occasioned by accumulations of snow and ice which at the time of the accident have been so recent that in the exercise of that reasonable and continuing inspection which the law requires it would not have discovered it in time to remedy it by the exercise of reasonable care. The city has a reasonable time for the removal of the snow after it has ceased to fall and may even wait for a change of temperature where the conditions are such as to render the work of removal impracticable. [Citations omitted.]” 137 Kan. at 828-29.
Additionally, the Speakman court discussed the unreasonable and heavy burden in requiring municipalities to remove naturally accumulating snow and ice from their miles of sidewalks and streets. 137 Kan. at 825, 826. The court further stated: “ ‘[W]hen these conditions exist generally they are obvious, and everyone who uses the sidewalks at such times is on his [or her] guard and is warned by the surroundings and the danger of slipping at every step.’ ” 137 Kan. at 825 (quoting Evans v. Concordia, 74 Kan. 70, 73, 85 Pac. 813 [1906]). Ultimately, the court reversed the district court’s denial of a motion for a judgment notwithstanding the verdict and ordered judgment for the City. 137 Kan. at 830.
While plaintiff cites various cases arguing support for the rule that a business proprietor does breach the duty of ordinary care by not removing precipitation accumulating on outside surfaces during a storm, the facts of these cases are distinguishable from the present case. In six of the cases, the plaintiffs slipped and fell due to water or slush puddles located on interior floors of the defendant businesses. Customers entering the businesses dur ing bad weather had brought in water or slush, and the plaintiffs alleged the businesses failed to clean the floors or warn of the puddles. The respective courts, on the facts presented, either held that a jury question existed on whether the duty of ordinary care was breached or that a verdict for the plaintiff was . supported by the evidence. Mooney v. United States, 619 F. Supp. 1525, 1526-27, 1528 (D.N.H. 1985); Scott v. Alpha Beta Co., 104 Cal. App. 3d 305, 307, 308, 163 Cal. Rptr. 544 (1980); Carder v. K-Mart, Inc., 185 Ga. App. 143, 144-45, 363 S.E.2d 593 (1987); Wal-Mart Discount City v. Meyers, 738 S.W.2d 841, 842, 845 (Ky. App. 1987); Peralta v. Schwegmann Bros. Gt. Supermkts, 406 So. 2d 720, 721, 722 (La. App. 1981); Felder v. K-Mart Corp., 297 S.C. 446, 447, 450, 377 S.E.2d 332 (1986).
Plaintiff cites two cases that involve accumulation of precipitation on outside surfaces. City of Baldwyn v. Rowan, 232 So. 2d 157 (Miss. 1970), is distinguishable on the facts. There the City allowed water to continuously drain from an alley across a sidewalk at the corner of City Hall, and then dbwn a shbrt ramp to the street. On the morning of the plaintiffs fall, this portion of the sidewalk and the ramp was covered with a thin layer of ice. There was no ice anywhere else on the streets and sidewalks. The plaintiff slipped and fell on the ramp. 232 So. 2d at 158. In determining whether the trial court erred by refusing to direct a verdict for the City, the Mississippi Supreme Court stated the hazard causing plaintiffs fall was not totally created by natural causes. The City had allowed the water to drain across the sidewalk and down the ramp for years, despite the drainage problem being easily remedied. The court affirmed the jury’s finding that the City failed in its duty of reasonable care and the trial court’s denial of the motion for directed verdict. 232 So. 2d at 160. Here, the condition of the mat placed on the ramp outside the Dillons store was caused solely by the ice storm.
Next, plaintiff cites Capener v. Duin, 173 N.W.2d 80 (Iowa 1969), where a plaintiff postal carrier slipped and fell on the ice-covered porch steps of a residence. On appeal the verdict was affirmed for the postal carrier. 173 N.W.2d at 87. While the opinion notes there were intermittent periods of snow and sunshine the week the fall occurred, with icy conditions generally prevailing, the opinion gives no indication that it was storming at the time of the fall. 173 N.W.2d at 82. Furthermore, the case does not consider the specific issue of a business proprietor’s duty of ordinary care to remove accumulations of ice or snow from exterior surfaces during a storm. When Iowa was confronted with that issue, the court adopted the rule enunciated in Walker. In Reuter v. Iowa Trust & Savings Bank, 244 Iowa 939, 57 N.W.2d 225 (1953), a guest of a tenant in an office building slipped and fell on steps as he was leaving the building. The day was snowy, intermingled with periods of rain, sleet, wind, and subfreezing temperatures. 244 Iowa at 941. The Reuter court adopted the Walker rule, holding that the plaintiff-guest was an invitee to whom the landlord owed a duty of ordinary care to keep the office building in a reasonably safe condition. 244 Iowa at 940.
The reasoning of the cited cases holding that a business proprietor, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter is . sensible and persuasive. A business would have to continuously devote time and effort to keep outdoor surfaces precipitation-free during a storm. We believe such an effort to be quixotic. Additionally, invitees using or traversing outdoor areas should be aware of the weather and its probable effect on those surfaces. As the Virginia Supreme Court stated in Walker, “[Ejvery pedestrian who ventures out at such time knows he [or she] is risking the chance of a fall and of a possible injury. ” 187 Va. at 22. We are convinced a business proprietor does not breach the duty of ordinary care owed to invitees to keep premises in a reasonably safe condition by not removing accumulated precipitation from exterior surfaces during a winter storm and a reasonable time thereafter, absent unusual circumstances.
THE DIRECTED VERDICT
Our standard of review is well settled.
“ ‘The standard of appellate review of a motion for directed verdict requires this court to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. [Citation omitted.]’ ” Snodgrass c. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 157, 804 P.2d 1012 (1991).
(a) DUTY TO REMOVE
Plaintiff argues that under our standard of review, reasonable minds could differ on whether precipitation was falling when he slipped and fell because conflicting evidence was presented to the jury. Therefore, the jury should have been allowed to determine whether Dillons had a duty to remove the accumulated ice from the ramp.
Based upon the record before us, we believe reasonable minds could only conclude plaintiffs fall occurred during the winter storm. Even if the freezing precipitation had stopped when plaintiff fell, such cessation was brief in duration because clearly precipitation was falling when plaintiff entered the store and when emergency personnel arrived.
We are satisfied reasonable minds could not conclude either that the storm had ended or even that a reasonable time had passed after the cessation of the storm to activate Dillons’ duty to remove the accumulated ice from the ramp.
(b) DUTY TO PREVENT ACCUMULATION
As we understand, plaintiff claims Dillons was negligent in both placing the mat on the ramp and in not applying an ice-melting substance to the mat.
We believe plaintiff s contentions are merely repetitious of earlier assertions. Under the facts here, Dillons had no duty to remove ice from outside areas during the winter storm, and thus no duty to keep the mat free of ice during the storm. We have difficulty understanding how the ramp was more dangerous with the mat than without it. The record here indicates that at the moment of plaintiffs fall, city streets, Dillons’ parking lot, and sidewalks approaching the store were icy and slick. Under the existing weather conditions, we believe it is more likely than not that the outside ramp leading into the store would have been icy and slick if not covered by the mat.
We conclude the district court did not err in directing a verdict on these points.
LACK OF HANDRAIL
During trial, plaintiff made a proffer of evidence to the court concerning the absence of a handrail on the entrance ramp at the time of his fall and Dillons’ subsequent installation of a hand rail on the ramp. The court ruled the evidence inadmissible. Plaintiff contends that his proffer of evidence concerning the lack of a handrail was not to show that a subsequent remedial measure had been effected.
Clearly the district court was correct in holding that Dillons’ subsequent installation of a handrail was not admissible to establish fault. However, we believe the court erred in not permitting plaintiff to introduce evidence that a handrail was not present when he slipped and fell.
In addressing this issue, we have reviewed the cases cited by Dillons and conclude they are of no avail here. Instead, we believe the facts and holdings of Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971), are more persuasive.
In Noland, the plaintiff lost her balance and fell as she was going down some steps. She alleged inter alia that the defendant’s failure to provide handrails was negligence. At the conclusion of plaintiff s evidence, the district court sustained defendant’s motion for dismissal. 207 Kan. at 73.
On appeal, our Supreme Court noted the following:
“Turning to the evidence, Mrs. Noland testified it was her usual practice when she walked down steps where there was a handrail, to walk right beside it or at least to put her hand on top of it; that when she lost her balance on the Sears’ steps, there was nothing she could do to regain her balance or steady her balance without falling; that she lost her balance and had nothing to hang onto; there was no way for her to regain her balance.” 207 Kan. at 75.
The Noland court, in remanding the case, concluded “the evidence in its entirety, even though it may not have been robust, would have been sufficient under the surrounding circumstances to justify the jury in drawing an inference of causation, had the case been submitted to it.” 207 Kan. at 76.
Plaintiffs proffer of evidence here is strikingly similar to the testimony found in Noland. As in Noland, plaintiffs proffer may not have been robust, but we believe it was sufficient under the facts to justify the jury in drawing an inference of causation, had the district court submitted the issue to the jury.
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Gernon, J.:
This appeal raises the issue of whether a utility, Kansas Power and Light Company (KP&L), is required to pay sales tax for repairing its own equipment, thereby making a tortfeasor, the defendants here, liable for such sales tax as part of a damage award or settlement.
The ten defendants here were sued by KP&L on a negligence theory after each damaged KP&L’s property with their automobiles. The only issue contested by any of the defendants was whether KP&L was required to pay sales tax for the repair of the property, making such tax an element of damages.
The facts, as well as the same parties, were before this court in Kansas Power & Light Co. v. State Farm Mut. Auto. Ins. Co., No. 63,987, unpublished opinion filed February 23, 1990, in which KP&L brought a declaratory judgment action to determine its liability under the Kansas sales tax statutes. We reversed and remanded with directions to dismiss, finding that no controversy existed between the parties. We also noted that the Kansas Department of Revenue could still pursue any appropriate action, since the Department was not a party to the declaratory judgment action.
KP&L then sued Aarens and nine others (Aarens), not asking for an interpretation of the sales tax statutes, but rather to recover all damages, including sales tax, as a result of Aarens’ acts which damaged the property of KP&L. KP&L does not contest the payment of sales tax, but Aarens did. Aarens did not implead the Department of Revenue under K.S.A. 60-214(a) as a party.
Actual Controversy
Aarens argues that the district court had no jurisdiction to hear the case because the same issue being raised here was raised in the prior case, but by a different approach. KP&L states that this is an action to recover damages, of which the sales tax is one element. We agree with KP&L that an actual controversy exists. KP&L claims Aarens owes sales tax as part of the damages. Aarens denies the sales tax is an element of damages and refuses to pay it.
Sales Tax on Repairs to Own Property
K.S.A. 79-3603 states in part:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act,' there is hereby levied and there shall be collected and paid a tax at the rate of 4.25% upon:
“(1) the gross receipts received from the sales of tangible personal property to all contractors, subcontractors or repairmen of materials and supplies for use by them in erecting structures for others, or building on, or otherwise improving, altering, or repairing real or personal property of others;
“(q) the gross receipts received for the service of repairing, servicing, altering or maintaining tangible personal property, except computer software described in subsection (s), which when such services are rendered is not being held for sale in the regular course of business, and whether or not any tangible personal property is transferred in connection therewith. The tax imposed by this subsection shall be applicable to the services of repairing, servicing, altering or maintaining an item of tangible personal property which has been and is fastened to, connected with or built into real property.” (Emphasis added).
Aarens argues that, when KP&L uses its own employees to repair its own property, no taxable event has occurred under the Kansas Retailers’ Sales Act, K.S.A. 79-3601 et seq. Aarens contends that KP&L did not sell any services to Aarens as the “ultimate consumer,” KP&L argues that the sales tax is part of the gross receipts which it is obligated to collect and Aarens is obligated to pay, regardless of who performs the repairs or causes them to be made.
Several Kansas decisions have addressed sales tax issues. The Kansas Supreme Court stated in Southwestern Bell Tel. Co. v. State Commission of Revenue and Taxation, 168 Kan. 227, 233, 212 P.2d 363 (1949), that:
“There is one basic principle about our sales tax act. It is that the ultimate consumer should pay the tax and no article should have to carry more than one sales tax. The intention was that in the various steps between a loaf of bread and the wheat field the person who bought the wheat from the farmer should not pay a sales tax nor the mill that bought it from the elevator man nor the jobber who bought the flour from the mill nor the baker who bought the flour from the jobber. ... It should be noted that for each step from the wheat field to the bakery the title to the wheat and flour passed. It was bought each time with the idea of the title passing and there being a resale. This is not true of the property in question here. When the telephone company buys a pole and sets it in the ground the pole belongs to it and the title does not pass to anyone of the telephone company’s service. When the baker buys a new oven or the shoemaker a new machine or the shirt-maker a new sewing machine, he pays a sales tax on these purchases because they are the ultimate consumers, the title has come, to rest,- no further transfer of title is contemplated." (Emphasis added).
The court noted that the retail sales tax was to be levied “upon the privilege of selling tangible personal property at retail in this state or rendering or furnishing certain services therein.” 168 Kan. at 230-31. The court stated the test for determining whether sales tax is due is “whether the sale in question is for resale or to be finally consumed by the buyer.” 168 Kan. at 235..
Applying the holding in Southwestern Bell to the instant case, it is clear that KP&L is the final and ultimate consumer of the goods used to repair the damage Aarens caused. Therefore, KP&L is obligated to pay sales tax on the actual property used.
Whether a tax is owed on the service of repairing the damage and whether it is owed on all or part of the service has been considered in other Kansas cases.
.This court considered the sales tax assessment on services in In re Tax Appeal of Black, 9 Kan. App. 2d 666, 667, 684 P.2d 1036, rev. denied 236 Kan. 876 (1984). In Black, we reviewéd the legislative history of K.S.A. 1983 S.upp. 79-3603(q), which is still applicable to K.S.A. 1989 Supp.' 79-3603(q). We stated that “the legislative intent was to clearly and specifically include the services of repairing, servicing, altering or maintaining fixtures within the sphere of taxability.” Black, 9 Kan. App. 2d at 669.
A similar result is found in In re Tax Appeal of AT&T Technologies, Inc., 242 Kan. 554, 562, 749 P.2d 1033 (1988). AT&T furnished repair services and equipment to Southwestern Bell, repairing telephones for Bell which could not be repaired in the field. AT&T contested the imposition of sales tax on the service of repairing telephones for Southwestern Bell. The Kansas Supreme Court held that the telephone company was the final user or consumer of the equipment used to enable it to provide services to its customers and, therefore, the repairs were subject to the sales tax.
Most recently, this court affirmed the retailers sales tax assessed and the severance of certain contracts into taxable and nontaxable components in In re Tax Appeal of Bernie’s Excavating Co., 13 Kan. App. 2d 476, 481, 772 P.2d 822, rev. denied 245 Kan. 784 (1989). The nontaxable event was the excavation part of the service provided.
The controlling factor in these cases is that the tangible goods were under the control and had come to rest with the final, ultimate consumer and were not possessed for resale.. Who or what entity performed the repair work is immaterial. Whenever the goods come to rest with the ultimate consumer, a taxable event occurs which requires the payment of the sales tax on both the goods and on all taxable components of the repair service.
Isolated or Occasional Sale
Finally, Aarens argues that the repair work is exempt from sales tax under K.S.A. 79-3606(1), which excepts isolated or occasional sales. Aarens contends that, because KP&L is not in the business of selling its repair services to others and the work is performed on a nonrecurring basis, it should be considered as an isolated or occasional sale.
This issue is moot, given our conclusion that KP&L, under these facts, is the ultimate consumer. Once this conclusion is reached, KP&L is liable for the sales tax on the tangible property and on the repairs.
Even if not moot, KP&L consumes and repairs many poles, gas meters, and other tangible property. As the ultimate consumer, KP&L is responsible for the sales tax as part of its normal business consumption.
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ELLIOTT, J.:
Gwendolyn M. Mayer appeals her conviction of violating Topeka City Ordinance § 8-45(a)(2) (1991), which prohibits a dog owner from permitting a dog to attack or bite any person upon the owner’s premises.
We affirm.
Tayha Fager, a mail carrier, delivered mail to the Mayer residence. As she was leaving the property, a German Shepherd dog ran from the garage and allegedly attacked and bit Fager.
Mayer was originally charged with allowing her dog to run at large and with permitting her dog to bite a person not upon the premises of the owner. The municipal court found her guilty on both charges.
On appeal, the district court permitted the City to amend the complaint to charge permitting a dog to bite a person upon the premises of the owner. At trial, Fager testified that Mayer told her there had been previous problems with the dog. Mayer testified that as the dog approached Fager, Fager “jammed her arm in the dog’s mouth.”
The district court dismissed the dog-at-large charge and found Mayer guilty of permitting a dog to bite a person while on her premises.
Mayer contends the district court should not have allowed the City to amend the complaint prior to trial to charge an attack committed on the premises of the owner, rather than off the owner’s premises.
When cases are tried in district court de novo after a municipal court proceeding, the original pleadings may be amended if they are found to be defective. K.S.A. 22-3610(a).
Black defines defective pleadings as “complaint, answer, cross-claim, counterclaim, etc. which fail to meet minimum standards of sufficiency or accuracy in form or substance. Such defects may usually be cured by amendment.” Black’s Law Dictionary 418 (6th ed. 1990).
The City contends the original complaint was defective because it failed to accurately set forth an essential element of the charge: It stated that the dog was off, rather than on, the owner’s premises at the time of attack.
There are few Kansas cases which address appeals to district court from municipal court. But in Topeka v. Durein, 78 Kan. 661, 97 Pac. 967 (1908), our Supreme Court interpreted a precursor to K.S.A. 22-3610. After considering a 1903 statute dealing with appeals from police court and a statute covering appeals from justices of the peace, the court held that the district court on appeal may allow a new complaint to be filed before trial without any Order having been made quashing or setting aside the original complaint. 78 Kan. at 662-63.
Additionally, because defendant was properly before the district court, issuance of a new warrant was not necessary. 78 Kan. at 663. The Durein court’s ruling that the prosecution may amend a complaint virtually at will between trial at the municipal court level and district court level applies to the present case.
State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975), also supports the City’s position that it was fine to amend the complaint before Mayer’s trial de novo in district court.
On trial de novo, Mayer was not charged with a different crime, but with an alternative method of violating the ordinance against attack by dogs. Under Durein and Osburn, the City had liberal authority to amend the complaint against Mayer prior to trial.
Mayer next contends she was subjected to double jeopardy because she was convicted of separate crimes for the same conduct in municipal court and district court.
The complaint against Mayer was permissibly amended prior to the district court trial. She was not tried for two separate crimes for the same conduct. Her double jeopardy claim has no merit.
Mayer also argues that Topeka City Code § 8-45 is unconstitutionally vague. We disagree.
Topeka City Code § 8-45 states in pertinent part:
“(a) Prohibited. It is unlawful for any owner, harborer, keeper or possessor who keeps any dog within the city limits to allow the following, and the same are declared to be public nuisances and prohibited:
“(1) To permit such dog to attack or bite any person or animal that is not upon the premises of the owner, harborer, keeper or possessor.
“(2) To permit such dog to attack or bite any person or animal that is upon the premises of the residence of such owner, harborer, keeper or possessor.”
Mayer contends that “permit” is not adequately defined in the statute and therefore the ordinance is unconstitutionally vague.
A penal statute or regulatory ordinance will be void for vagueness “unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice.” City of Wichita v. Wallace, 246 Kan. 253, 258, 788 P.2d 270 (1990). Further, it is our duty to uphold an ordinance if there is any reasonable way to construe it as constitutionally valid. State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P. 2d 630 (1980).
“To permit” commonly means to give consent, to authorize, to make possible, or to give an opportunity. See Webster’s Third New International Dictionary 1683 (1986); Black’s Law Dictionary 1140 (6th ed. 1990).
The word “permit” makes the ordinance broad, but not necessarily vague-. It prohibits an owner from commanding a dog to attack, as well as inadequately restraining a dog and thereby giving it an opportunity to attack.
In Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758, cert. denied 493 U.S. 976 (1989), the court upheld an ordinance regulating the ownership of pit bulls within the city. In upholding the ordinance, the court ruled it must be shown to be vague “ ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ ” 244 Kan. at 641.
In the present case, Topeka City Code § 8-45 does not limit constitutionally protected conduct. The ordinance is somewhat imprecise, but it does not fail to specify any standard of conduct. Simply put, if an owner fails to restrain a dog and the dog attacks a person on or off the owner’s property, and the specified exceptions and affirmative defenses are absent, then the ordinance is violated.
Laws regulating ownership and possession of dogs are within the city’s police power. See Hearn, 244 Kan. at 645-46. And scienter is not required for such offenses. See State ex rel. v. Fairmont Foods Co., 196 Kan. 73, 81, 410 P.2d 308 (1966).
While the ordinance may be imprecise, it gives sufficient warning to a person of average intelligence that a person responsible for a dog will be held liable if he or she allows the dog to attack another person. This is sufficient to withstand a constitutional challenge; the ordinance passes constitutional muster.
Finally, Mayer argues the evidence is insufficient to support a conviction beyond a reasonable doubt. The question on appeal is whether a review of all the evidence, when viewed in the light most favorable to the prosecution, convinces us that a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
Mayer contends there is no evidence that she directed, commanded, or gave the dog permission to attack Fager. But as discussed above, merely giving her dog the opportunity to attack Fager is within the definition of “permit.”
There was evidence at trial that the dog belonged to Mayer; that the dog was unrestrained in the garage; and that the dog bounded from the garage, knocked Fager to the ground, and bit her arm. This is sufficient to support Mayer’s conviction.
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Lewis, J.:
Norman Anderson and Commemorative Services Corporation (CSC) appeal from the entry of judgment against them.
This action concerned the sale of burial markers on a pre-need basis by Anderson, CSC, and a number of related but separate corporations. The litigation has a long history, with roots reaching back to similar litigation in 1965. The present action which was filed' in 1980, has been dealt with by two different district judges, one of whom is now retired. There were numerous other parties to the action, but Anderson and CSC are the only parties remaining.
This action was commenced in 1980 against several defendants. At the time the action was filed, neither Anderson nor CSC were named defendants. Over the next ten years, four amended petitions were filed, and numerous individuals, municipal corporations, and cemetery corporations, including Anderson and CSC, were added and/or dismissed as defendants. As this point, only Anderson and CSC remain.
Procedurally, the State filed for summary judgment on at least three occasions. In 1987, the State was granted summary judgment on the issue of liability by Judge Page W. Benson, who has since retired. In 1991, the matter was tried on the question of damages before Judge John E. Sanders. As a result of the last trial,. damages in excess of $210,000 were assessed against 'Anderson personally and against CSC. This appeal is from the summary judgment determination of liability and from the damages awarded.
Anderson has been active in the business of founding, selling, and operating cemeteries for over 40 years. He has also developed and sold funeral plans and funeral and burial merchandise on a pre-need basis. His activities in the sale of pre-need funeral plans and merchandise has attracted the attention of several attorneys general in this state. Prior to 1965, Anderson was the defendant in a lawsuit similar to the present litigation. In that action, it was concluded that his activities violated several statutes of this state, including K.S.A. 16-301 (Gorrick). See State, ex rel., v. Anderson, 195 Kan. 649, 408 P.2d 864 (1965) (Anderson I).
Between 1955 and 1962, Anderson incorporated nine cemetery corporations in the State of Kansas. The exact name of each of these corporations is unimportant, and we shall refer to them as the nine CCs. Anderson owned all of the stock in the nine CCs until 1964, when this stock was purchased by Sacred Gardens, Inc:, (SGI). After the sale of stock to SGI, Anderson remained as president and CEO of the nine CCs! Anderson was also president and majority stockholder of SGI when it purchased the stock of the nine CCs, and he remained in that capacity until 1974 when SGI was dissolved.
CSC is a California corporation. In 1972, CSC purchased the stock of SGI. When SGI was dissolved in 1974, CSC took over direct ownership of the stock in the nine CCs. Although Anderson was a shareholder and a director in CSC when it purchased SGI, he was not an officer of CSC until 1977. In 1977, Anderson purchased the majority stock of CSC and became its president and CEO. He remains, at this time, president and CEO of CSC.
Between 1955 and 1973, the nine CCs formed by Anderson entered into 1,247 contracts for the sale of pre-need burial markers and other merchandise. These contracts were computed to have a wholesale cost of $173,332. Three of these contracts are included in the record, two from 1967 and one from 1962. Each contract contained a “guarantee of performance” clause, which read:
“That in order to assure performance of the delivery of the merchandise and service covered by this Agreement, the Company agrees that it will set aside and place in a Trust Fund, separate and apart from all other funds, sufficient money, based on its present wholesale price with reliable manufacturers, to pay for said merchandise and services when delivered.” (Emphasis added.)
It is conceded that, after 1965, no trust fund was established as required by the guarantee of performance clause. Indeed, no monies to fund the purchase of burial markers sold had been set aside as required by the contract and the clause, which is quoted above, when this action was filed.
Between 1974 and 1977, CSC sold the nine CCs to third parties. None of these purchasers is a party to the present action. According to Anderson, the purchaser of each CC was advised of the outstanding marker liability on pre-need contracts sold by that particular corporation. At the time of sale of each CC, the purchaser of that corporation agreed to accept the liability of that corporation with regard to pre-need burial markers sold.
It should be pointed out that some of the markers sold on a pre-need basis have been supplied. It does not appear that there was any evidence of a refusal or failure to supply any markers upon a demand being made.
The State contended that the failure to place in trust the funds collected from the sale of pre-need burial markers violated K.S.A. 16-301 (Corrick), and this action was filed to recover damages under that statute. The State also contends that the actions of Anderson and CSC violated the Kansas Consumer Protection Act (KCPA) (K.S.A. 50-623 et seq.) and sought to recover civil penalties and costs of the action under that Act.
The trial court granted the relief sought by the State. It granted an award of damages under 16-301 in the amount of $173,332. These damages were calculated by arriving at the wholesale cost of the burial markers sold by Anderson on a pre-need basis. The order of the trial court required Anderson to place the amount of funds awarded as damages in trust to fund the purchase of burial markers sold on a pre-need basis.
In addition to granting damages under 16-301, the trial court assessed a civil penalty, or fine, under the KCPA in the amount of $31,175 and awarded the attorney general the sum of $10,000 for expenses incurred in the investigation and trial of the lawsuit.
Although the contracts in question were all negotiated by the various CCs in question, the court assessed personal liability for damages and fines against Anderson. It also held CSC to be liable for the judgment granted.
The defendants raise various issues on this appeal.
IS K.S.A. 16-301 (CORRICK) APPLICARLE?
As originally written, K.S.A. 16-301 (Corrick) read as follows:
“Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be paid to and held by a bank or trust company which is authorized to do business in this state, and subject to the terms of an agreement for the benefit of the purchaser of said agreement, contract or plan.” (Emphasis added.) L. 1953, ch. 54, § 1.
During the time the pre-need burial markers involved in this litigation were sold, the statute remained in the form quoted above. In 1973, the following sentence was added to K.S.A. 16-301:
“For the purposes of this act, personal property or funeral or burial merchandise shall include caskets, vaults and all other articles of merchandise incidental to a funeral service, but shall not include grave lots, grave spaces, grave memorials, tombstones, crypts, niches and mausoleums.” (Emphasis added.) L. 1973, ch. 86, § 1.
With this addition, and some changes not pertinent herein, the statute remained essentially as originally written.
It is not contested by any party to this action that, since 1973, burial merchandise does not include burial markers. As a result, the sale of burial markers on a pre-need basis after 1973 would not violate the statute.
In this case, the alleged violations of 16-301 all took place prior to the 1973 amendment of the statute. The question before the trial court was whether 16-301, as it read prior to 1973, controlled the “pre-need” sale of burial markers. The, trial court held that it did and that the failure to comply with the trust fund provisions of 16-301 in the sale of pre-need burial markers was a violation of the statute.
The defendants argue that 16-301 has never applied to the sale of burial markers. They submit that the 1973 amendment did nothing more than clarify the issue. If the defendants are correct, the lawsuit is totally unfounded, and all relief granted to the plaintiff would be reversed. Such a result would greatly simplify this opinion and the disposition of this case. However laudable such a result might be, we disagree with the defendants’ reading of the statute and hold that it encompassed and regulated the sale of burial markers during the period of time involved in this litigation.
The statute, prior to 1973, regulated contracts for “the furnishing of personal property or funeral or burial merchandise” on a “pre-need” basis. While we are unaware of any clear definition of the term “burial merchandise,” we are hard pressed to imagine that a burial marker would not be included in such a definition. We conclude that a burial marker is included in the term “burial merchandise” as that term would be interpreted by a reasonable person. To hold that 16-301 does not, on its face, include burial markers within its ambit seems to us to be a nonsensical construction of the statute.
“ ‘[Interpretation of a statute is a question of law and it is the function of a court to interpret a statute to give it the effect intended by the legislature.’ ” State, ex rel., v. Unified School District, 218 Kan. 47, 49, 542 P.2d 664 (1975). Our review on issues of law is unlimited, and we are not bound in any way by the interpretation reached by the trial court. Utility Trailers of Wichita, Inc. v. Citizens Nat’l Bank & Tr. Co., 11 Kan. App. 2d 421, 423, 726 P.2d 282 (1986).
The argument of the defendants is that, by adding one sentence to the statute in 1973, the legislature only intended to clarify and not change the effect of the statute. Thus, they argue, the language added was only intended to make it clear that burial markers were never intended to be covered by the statute. We disagree. In the context considered, it appears to us that the 1973 amendment was clearly intended to remove the sale of burial markers from regulation by the statute.
' The rules of statutory construction employed by this court are well known:
“The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent ‘even though words, phrases or clauses at some place in the statute must be omitted or inserted. ’ [Citations omitted. ] 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. [Citations omitted.] Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect. This presumption, however, may be strong or weak according to the circumstances, .and may be wanting altogether in a particular case. [Citations omitted.]” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
In Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, Syl. ¶¶ 1, 2, 557 P.2d 1286 (1976), the court dealt with the interpretation of K.S.A. 16-301.. In so doing, it left the following guidelines:
“In determining whether K.S.A. 16-301 applies to particular contracts under facts stipulated by the parties, this court must ascertain and give effect to the intent of the legislature. In so doing we must consider the language of the statute; its words are to be understood in their plain and ordinary sense.” Syl. ¶ 1.
“When a statute is plain and unambiguous this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.” Syl. ¶ 2.
In applying the rules of construction cited above, we conclude that the presumption referred to in Citizens State Bank of Grain-field v. Kaiser, 12 Kan. App. 2d 530, is not present in the instant matter.
We are cited to legislative history by the defendants to support their contention. We have examined that history and do not find it supportive of the argument advanced.
The history cited consists of letters from the Kansas Cemetery Association (KCA) in support of the amendment adopted in 1973. The letters indicate that this organization did not want any of the products its members sold to be encumbered by the terms of K.S.A. 16-301. Those products were primarily gravesites or lots, tombstones, and burial markers. The KCA. strongly supported the amendment to take its products out of the statute. It did what any organization would do if it felt its products were or could be included within the statute. It sought an amendment to take them out.
We are cited to minutes of a house committee where Oscar Brewer, executive director of the Kansas Funeral Directors and ■Embalmers Association, is quoted as saying, “The amendment does not change the existing law but does have the approval of the Kansas Funeral Directors and Embalmers Association and the KCA.” With all due respect to Mr. Brewer, his comments do not seem to us to be particularly illustrative of legislative intent.
The legislative history cited is of the type that can be viewed either way, depending upon the eye of the beholder. As we read it, it is nothing more than the lobbying effort of two groups who want their products removed from the grip of the statute. We view the change in 1973 as substantive in nature and not merely a clarification of how the statute already read.
In Anderson 1, 195 Kan. at 663, the court stated:
“Upon the facts presented in this record we think the principal object and purpose of the business of defendants is basically that of selling cemetery lots, burial vaults and markers, and not that of assumption of risks; the latter being merely incidental to the former, or as the parties themselves put it, a ‘sales gimmick’ or an inducement to the potential customer to buy the merchandise. We have just held defendants accountable under K.S.A. 16-301 for all moneys received for burial vaults and markers not delivered, and under K.S.A. 17-1311 for at least ten percent of money received for lots.” (Emphasis added.)
Since Anderson 1 dealt only with burial vaults and did not litigate the issue of burial markers, the statement from the court cited above is nothing more than dicta. However, that statement does infer that the court believed burial markers were to be considered burial merchandise under the statute.
In Lakeview Gardens, Inc. v. State ex rel. Schneider, 221 Kan. 211, the court took a look back to Anderson I:
“Both parties rely heavily on quoted portions of our opinion in State, ex rel., v. Anderson, 195 Kan. 649, 408 P.2d 864. Our discussion in that opinion was not limited to the sale of caskets, as it must be in the present opinion. In Anderson the provisions of the cemetery corporation contracts examined by this court covered the sale of cemetery lots, the sale of caskets and memorial grave markers . . . .” (Emphasis added.) 221 Kan. at 214.
The defendants also rely on Lakeview Gardens, pointing out the following language of pages 217-18 of that opinion:
“Both parties rely upon certain abortive legislative proceedings which occurred in 1963 and 1966 in the area of prearranged or preneed funeral contracts. The wording of the statute which is being considered in the present case has remained unchanged, for all practical purposes, since its enactment in 1953. The change adopted by the legislature in 1973 merely added the last sentence of K.S.A. 16-301 defining burial merchandise.”
The defendants cite the emphasized portion of that statute as being supportive of their argument. They submit that the statement means that the Supreme Court agrees that the 1973 change was nothing more than a clarification. We do not agree. The statement is factual and correct. It does not interpret the statute, nor does it infer that the 1973 change was not substantive but merely a clarification.
Our examination of the statute, its history, and the various authorities which have touched upon it constrains us to hold that the pre-1973 version of 16-301 did cover burial markers. Any other holding would require us to conclude that burial markers are not “burial merchandise.” Such a conclusion is untenable and would twist those words beyond their plain wording and ordinary understanding.
The trial court did not err in holding that the sale of burial markers on a pre-need basis between 1955 and 1973 was governed by the terms of K.S.A. 16-301 (Corrick).
DOES THE KCPA APPLY?
The trial court found that the defendants’ actions were violative of the KCPA, K.S.A. 50-623 et seq. The application of the KCPA permitted the court to invoke civil penalties and assess costs of the State’s investigation against the defendants. Under this authority, the defendants were fined $31,175 and assessed some $10,000 for the State’s cost and investigation expenses.
The defendants point out that the actions for which they were penalized under the KCPA all took place prior to 1973. This is highly significant since the KCPA did not become effective until January 1, 1974. Accordingly, the defendants argue that it was error to assess civil penalties under the KCPA.
The question before this court is whether, under the facts shown, the KCPA could be given retroactive application to punish actions which took place prior to its enactment. After careful consideration, we reverse and hold that the KCPA should not have been given retroactive application and that the judgment against the defendants for civil penalties and costs under that act was error.
“A general rule of statutory construction is that a statute operates prospectively unless there is clear language that it will operate retrospectively. This rule, however, is modified if the statutory change is procedural only and does not affect substantive rights of the parties.” (Emphasis added.) Stevenson v. Topeka City Council, 245 Kan. 425, Syl. ¶ 1, 781 P.2d 689 (1989). We believe that the rule quoted above mandates our conclusion that the trial court erred in its application of the KCPA. We have examined the statutory enactments and can find no language indicating that the legislature intended that it should be applied retroactively. In addition, we fail to see how it can be argued that the retroactive application of the KCPA to mete out some $41,175 in fines and penalties did not affect the substantive rights of the defendants.
There is no clear legislative intent to require application of anything other than- the general rule which has been in effect in this state for more than 85 years. That rule is that a statute will always operate prospectively in the absence of clear legislative intent to the contrary. State v. Augustine, 197 Kan. 207, 210, 416 P.2d 281 (1966); Beeler & Campbell Supply Co. v. Warren, 151 Kan. 755, 100 P.2d 700 (1940); International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 P.2d 311 (1934); Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028 (1906).
The effect of the application of the KCPA in the instant matter is to subject these defendants to civil penalties under a law that did not exist when the wrongful acts were committed. The trial judge attempted to justify this application on the theory that the actions of the defendants created harm which was ongoing, extending past the enactment of the KCPA. We can find no authority to support this rationale. We can surmise that many wrongful acts may continúe to have adverse consequences for years after they have been committed: However that may be, with the few exceptions not relevant here, our law does not permit imposing penalties on a defendant many years after ah offending act has been committed.
At the time the pre-need plans were sold, the KCPA was not in existence and the liabilities sought to be imposed did not exist. “As a general rule retroactive construction will not be given a statute so as to impose liabilities not existing at the time of its passage.” (Emphasis added.) Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 569, 552 P.2d 998 (1976) (citing 82 C.J.S., Statutes § 418).
“The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively. This rule is normally applied when an amendment to an existing statute or a new statute is enacted which creates a new liability not existing before under the law or which changes the substantive rights of the parties.” (Emphasis added.) Nitchals v. Williams, 225 Kan. 285, Syl. ¶ 1, 590 P.2d 582 (1979).
The imposition of civil penalties under the KCPA effectively created a new liability which did not exist at the time the wrongful acts were committed, and application of the act to these facts is not permissible.
The State argues that the KCPA was a successor to the Kansas Buyer Protection Act of 1968, K.S.A. 50-602 et seq. It submits that Act, as well as the common law, allowed remedies for the wrongful acts of Anderson. This argument is without merit. This action was not prosecuted either under the common law or the Kansas Buyer Protection Act. Those antecedents do not legitimize the retrospective application of the penalty provisions of the KCPA. This argument also overlooks the fact that the $2,000 civil penalty created under the KCPA was an entirely new statutory remedy which simply did not exist prior to January 1, 1974.
Our system of justice does not permit the imposition of ex post facto penalties for actions committed prior to the creation of those penalties. We hold the application of the KCPA to impose penalties in this case was error, and we reverse that action by the trial court.
PERSONAL LIABILITY OF ANDERSON AND CSC
The defendants contend that the trial court erred in granting summary judgment against them on the question of liability. We disagree. .
The issue arises as to Anderson based upon the trial court’s assessment of personal liability against him for his activities while he was president and chief executive officer of the nine CCs and SGI.
Any discussion of liability for corporate debts starts with the basic premise that the corporation and its stockholders are presumed separate and distinct. “Debts of a corporation are not the individual indebtedness of its stockholders.” Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 593, 567 P.2d 1337 (1977). “It is true, of course, that an officer of a corporation is not personally liable for a conversion committed by the corporation or one of its officers merely by virtue of the office he holds.” Patrons State Bank & Trust Co. v. Shapiro, 215 Kan. 856, 862, 528 P.2d 1198 (1974).
The liability of Anderson for damages stemming from a violation of the law involving the sale of pre-need funeral plans cannot be predicated on the fact that he was president and CEO of the corporations who sold the plans.
The Kansas Supreme Court has defined what must be shown to impose personal liability upon a corporate officer for wrongful actions of the corporation. “ ‘The approval or sanction by the directors or officers of a corporation to acts of fraudulent misrepresentation is a sufficient basis for holding them personally liable for damages arising from such fraudulent acts.” Meehan v. Adams Enterprises, Inc., 211 Kan. 353, 355, 507 P.2d 849 (1973) (citing with approval Klockner v. Keser, 29 Colo. App. 476, 488 P.2d 1135 [1971]). “The directors and officers of a corporation may be held liable for their fraudulent acts to persons dealing with the corporation and suffering damages as a result of their own false representations as to material matters.” State, ex rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, Syl. ¶ 7, 512 P.2d 416 (1973). See Hanson v. Murphy, 208 Kan. 297, 491 P.2d 551 (1971); Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 99, 490 P.2d 615 (1971); Annot., 32 A.L.R.2d 231 § 26. It has been held that “a corporate officer or director acting on behalf of a corporation is personally liable for damages caused by his willful participation in acts of fraud or deceit to one directly injured.” Speer v. Dighton Grain, Inc., 229 Kan. 272, Syl. ¶ 6, 624 P.2d 952 (1981). See McFeeters v. Renollet, 210 Kan. 158, Syl. ¶ 2, 500 P.2d 47 (1972); Kirk v. H.G.P. Corporation, Inc., 208 Kan. 777, 494 P.2d 1087 (1972).
The law in this state is well settled. An officer of a corporation is personally liable for wrongful actions of that corporation if he approved or sanctioned the action. He is liable if he is personally guilty of making false representation as to material matters in connection with the corporation’s action. He is personally liable if he willfully participated in acts of fraud and deceit. This liability does not depend upon piercing the corporate veil or upon the application of any alter ego theory.
In the instant matter, the trial court granted summary judgment against Anderson on the theory that he willfully participated in deceptive acts or misrepresentations. Our review indicates that the trial court did not err in reaching this conclusion.
. The rules concerning the granting of summary judgment are well known in this state and need not be recited in this opinion. See Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶ 3, 674 P.2d 1054 (1983).
Procedurally, the State of Kansas filed its uncontroverted statements of fact and the defendants filed their response thereto. This procedure is dictated by Rule 141 of the Kansas Supreme Court (1991 Kan. Ct. R. Annot. 117). That rule has been strictly enforced in this state. If the party opposing summary judgment fails to properly controvert the moving party’s statements of fact, those facts are deemed admitted. Slaymaker v. Westgate State Bank, 241 Kan. 525, 529, 739 P.2d 444 (1987). “Rule 141 is not just fluff — it means what it says and serves a necessary purpose.” McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984). The Kansas Supreme Court has stated on many occasions that, in order to survive a motion for summary judgment, the party against whom the motion is filed must do more than simply controvert the facts set forth in the motion. Indeed, that party has an affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988); Willard v. City of Kansas City, 235 Kan. 655, Syl. ¶ 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983).
A party cannot satisfy Rule 141(b) by merely stating that the facts are “controverted” or “contested.” A statement that is not properly controverted with citation to factual authority is deemed admitted. Danes v. St. David’s Episcopal Church, 242 Kan. 822, 829-30, 752 P.2d 653 (1988).
In support of its summary judgment motion, the plaintiff offered the following, none of which were effectively controverted by the defendants:
“20. Contracts for the sale of merchandise on a pre-need basis by the cemetery corporations contained a ‘Guarantee of Performance’ clause whereby a separate trust fund would be created containing sufficient money to pay the wholesale cost of the vaults and marker so purchased. . . .
“21. Norman Anderson was familiar with such guarantees of performance, and knew them to be contained in the sales agreements. . . . ,
“25. After 1965, no new merchandise trust accounts were set up . . . although representations continued to consumers that such accounts would be set up. . . .
“28. Norman Anderson knew of the procedure by which, after 1965, burial marker payments were deposited in general corporate accounts rather than in trust accounts, and were considered as general liabilities.”
In addition to those facts, the defendants either did not controvert or did not controvert sufficiently the following facts: (1) the nine CCs sold burial markers on a pre-need basis; (2) Norman Anderson was the incorporator and president of each CC during the time in question; (3) from July 1, 1964, until February 1974, the nine CCs were owned by SGI; (4) during that time, Norman Anderson owned the majority of the stock in SGI and was its president; (5) on February 29, 1972, CSC acquired the stock of SGI; (6) in February 1974, SGI was dissolved and CSC became the sole owner of the nine CCs; (7) Norman Anderson had a role in establishing the company policy of SGI; and (8) at one time, funds to purchase burial markers were held in trust but, in 1967, Norman Anderson, as president of each cemetery corporation, withdrew all of the funds held in trust and diverted those funds to other purposes.
In addition to the facts admitted on the summary judgment motion, Anderson testified in the damage phase of the trial. On this appeal, we have the entire record before us. In the damage phase of the trial, Anderson also admitted that he was aware that each pre-need contract negotiated contained a “guarantee of performance clause.” He further admitted that he was aware of the fact that the guarantee of performance clause was not being complied with and that the funds were not being placed in trust as required by the contract.
We have reviewed the record in this case and conclude that the uncontroverted facts established at the time of summary judgment were sufficient to indicate that Anderson was. the president, sole shareholder, and CEO of the nine CCs which were selling the pre-need plans. As such, he was clearly involved in establishing policies for those corporations, including policies in dealing with funds received from the sale of pre-need burial markers. He admitted in his testimony that he knew the company was promising consumers that it would place funds in trust and hold them in trust until the time came that the consumer would need the merchandise. In 1967, he personally withdrew the funds his corporation had promised to hold in trust and applied these funds to ofher liabilities. From 1965 on, he knew that the pre-need plans sold contained a “guarantee of performance” clause, and he knew that, despite that clause, the corporations were not placing the consumers’ .funds in trust.
Anderson was an active participant in the sale of the pre-need pláns by his corporations. He knew the funds were not being kept in the manner required by the contracts and did nothing to correct the situation. He was an active and' willful participant in' a scheme in which merchandise was being sold to consumers in violation of the law and in violation of agreements entered into -with those consumers. The personal liability of Anderson is clearly established, and the trial court did not err in so holding.
We are not so interested in determining whether Anderson's actions fit the exact legal definition of fraud or misrepresentation. That does not appear to us to be vital. Whatever his action is labeled, the fact is, he participated in taking people’s money under the pretext that it would be held in trust. He then becamé an active participant in dealing with this money in a manner that violated the contractual obligations which were offered to obtain me funds in the first place. To permit him to hide béhind the corporate structure under these circumstances would be a miscarriage of justice.
The trial court also assessed personal liability for the damages in this case against' CSC. The situation of CSC is considerably different from that of Anderson. During the time the pre-need plans were being sold, CSC was not involved in any way that we can discern from the record. The pre-need plans were being sold by the nine CCs which were owned by SGI. It' is obvious that SGI and the nine CCs incurred corporate liability to the consumers for the violation of K.S.A. 16-301 (Corrick) and breach of the agreements entered into with the various consumers.' In 1972, CSC acquired the stock of SGI. In 1974, SGI was dissolved, arid CSC then owned the stock of the various CCs directly. The liability of CSC is not a direct liability that accrues to it by virtrie of it being involved in the sale of plans. The liability of CSC is a derivative liability. It comes about because of the purchase' by CSC of the stock of SGI. There is no question from our reading of the record that SGI would be’corporately responsible for the damages assessed in this action. When CSC purchased the stock of SGI, it also purchased its liabilities. We consider the “dissolving” of SGI and the transfer of all of its assets to CSC to be a merger or the functional equivalent thereof. K.S.A. 17-6709 provides:
“When any merger or consolidation shall have become effective under this act ... all debts, liabilities and duties of the respective constituent corporations shall thenceforth attach to such surviving or resulting corporation, and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it.”
Our Supreme Court recently discussed the concept of merger in Micheaux v. Amalgamated Meatcutters & Butcher Workmen, 231 Kan. 791, 797, 648 P.2d 722 (1982):
“In corporation law the ‘merger’ of two corporations is the absorption of one corporation by another, which retains its name and corporate identity with the added capital, franchises and powers of the merged corporation. It is the uniting of two corporations by the transfer of property to one of them which continues in existence, the other being merged therein. Cinocca v. Baxter Laboratories, Inc., 400 F. Supp. 527 (E.D. Okla. 1975).”
The Cinocca case cited by the Micheaux court discussed the liability of a corporation remaining after a merger, saying: “The surviving corporation assumes the liabilities, both ex contractu and ex delicto, of the merged corporation. 19 CJS Corporations 1630 (a).” Cinocca v. Baxter Laboratories, Inc., 400 F. Supp. 527, 530 (E.D. Okla. 1975).
We also note that K.S.A. 17-6709 is virtually identical to section 259 of the Delaware General Corporation Law from which it was taken. Del. Code Annot. tit. 8, § 259 (1971). It is, therefore, instructive that Delaware courts have also adhered to the principle of successor liability in corporate mergers. See Beals v. Washington Intern., Inc., 386 A.2d 1156 (Del. Ch. 1978) (“Since Formac is the corporation into which MLZ was merged, it is liable for all the debts, liabilities and duties of MLZ. 8 Del.C. § 259.”); Gould v. American Hawaiian Steamship Company, 331 F. Supp. 981, 998 (D. Del. 1971) (“Reynolds is the surviving corporation after the merger with McLean. As such, it possesses all rights and powers of McLean, as well as all liabilities and duties. See 8 Del.C. § 259.”).
Our interpretation of the record is that CSC is the surviving corporation from its merger with SGI. As a result, it assumed all of the liabilities of SGI, including those arising from the acts complained of in the present case. The trial judge was correct in finding CSC liable for the violations of K.S.A. 16-301 (Corrick).
We reach this conclusion, although it is not specifically enumerated in the trial court’s decision. We do so on the basis of the often-cited rule that, under the circumstances, if the trial court’s decision is right for the wrong reason, its decision will be affirmed. Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
WERE ACTUAL DAMAGES PROVEN?
The defendants contend that no actual damages were proven in the instant matter. It is true, as asserted by the defendants, that there was no evidence presented that there was any consumer who contracted for a burial marker for whom one was not available when needed.
The defendants cite Apperson v. Security State Bank, 215 Kan. 724, 735-36, 528 P.2d 1211 (1974), as authority for the fact that no recovery can be had unless it is shown with reasonable certainty that the party seeking recovery has suffered damages.
We agree with the defendants’ interpretation of the law in this regard. We do not agree that no damages were shown to exist in this case.
The consumers on whose behalf this action was instituted purchased burial markers under a promise guaranteed to them by a written contract and by the law of this state that the funds they paid would be held in trust until such time as the merchandise purchased was needed. The defendants in this case willfully and wantonly failed to comply with the law of the State of Kansas or the guarantee of performance clause of their own agreements. The consumers’ funds were not placed in trust and have not been placed in trust to this day, but the funds have been applied to other purposes.
We do not consider that it is necessary for the State of Kansas to show that a consumer has been denied a burial marker in order to prove consumers have been damaged by the wrongful acts of the defendants. The consumers have obviously been dam aged, and the contracts entered into by them with Anderson and his various corporations have been wantonly breached. The funds which they paid under the pretext that they would be held in safekeeping and trust until the merchandise' was needed have been applied to othér purposes. For this court to hold that they have no remedy simply because they have not as of yet lost their money or been denied a burial marker would be ludicrous. We decline to so hold, and we do hold that adequate damages were shown to exist by the plaintiff in the instant • matter. The trial court’s award of 'damages instructed the defendants to place the sum of money awarded in trust and to hold it in trust to fund the purchase of burial markers in the future. We think this to be an appropriate remedy for the damage suffered by the consumers, and we affirm the decision of the trial court in this regard and hold that the defendants’ contention that no damages were shown is without merit.
DEFENDANTS’ RIGHT OF SETOFF:
Finally, Anderson contends that he should have been allowed to set off amounts owed to him by the new owners of the nine CCs. We suspect that his argument in this regard would have some merit in the right context, but we conclude that it has none in the context in which it is raised.
The nine CCs are not parties to this action. The defendants cite no authority to this court to indicate that they would have the right to set off or counterclaim for amounts owed to them by individuals or corporations who are not parties to this action. It is impossible to litigate Anderson’s contract claims against the purchasers of the nine CCs without bringing those purchasers or those corporations into the action.
As the litigation now stands, Anderson and CSC are the only defendants. There is no one he can counterclaim against, set off amounts against, or make claims against other than the plaintiff, who is the attorney general of the State of Kansas. Obviously, under these circumstances, Anderson has no remedy to set off the amounts owed to him by the new owners of the nine CCs.
If, in the future, Anderson pays off liabilities which have been agreed to be assumed by the purchasers of one or more of the nine CCs, we presume he would have a cause of action against that corporation to recover for any debts he has paid on its behalf.
For the purposes of this opinion, we hold that Anderson’s contention is without merit. He seeks a remedy which is not possible within the context of the current litigation. The parties whom he contends he should be allowed to set off against are not parties to this action, and, obviously, he will have to seek another forum in which to assert those claims.
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Larson, J.:
Daniel Rodriquez appeals from the denial of his workers compensation claim against the City of Garden City.
Rodriquez suffered a compression fracture to his back as the' result of a fall that occurred while he was pulling an air compressor up a ladder during the repair of the Pershing Manor low income housing facility roof in Garden City, Kansas.
Pershing Manor is a Housing and Urban Development (HUD) subsidized project, which is operated by the Garden City Housing Authority pursuant to HUD guidelines.
The Garden City Housing Authority oversees the operation through a Board of Directors that employs a manager, Tresa Smith, a maintenance man, and a receptionist.
Due to a hailstorm, the roof of Pershing Manor required repairs. Insurance coverage existed. A check for $7,796.60 payable to the Housing Authority of Garden City and HUD was received, endorsed by HUD, then forwarded to the Garden City Housing Authority for use.
Bids were taken by the Garden City Housing Authority which culminated in a contract with John Russell Construction to make the necessary repairs to the roof. Russell employed Rodriquez, who was injured as previously described.
Russell did not maintain a gross annual payroll of $10,000 and appears not to be covered by the Workers Compensation Act. Rodriquez seeks compensation as a statutory employee of Garden City under the provisions of K.S.A. 44-503(a).
The administrative law judge (ALJ) denied coverage, concluding Rodriquez failed to prove that the work undertaken was part of the City’s trade or business, or was work the City had contracted to do for a third party. The trial court agreed with the ALJ. Rodriquez appeals.
The scope of our review is established by the Act for Judicial Review and Civil Enforcement of Agency Actions (K.S.A. 77-601 et seq.) and K.S.A. 44-556. Our review on questions of law is unlimited, but on questions of fact we are limited to determining if there is substantial competent evidence to support the findings of the trial court. Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989) (citing Williams v. Excel Corp., 12 Kan. App. 2d 662, 664, 756 P.2d 1104 [1988], and Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 [1987]).
Because the primary issue herein is whether Rodriquez is covered by the Workers Compensation Act, the legislative intent of that Act as adopted by the 1987 Kansas Legislature is of prime importance.
“It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” K.S.A. 1990 Supp. 44-501(g); L. 1987, ch. 187, § 1.
Representative Donna L. Whiteman, in writing the 1987 Legislative Summary for the Kansas Bar Journal, described our obligation under this provision in the following manner:
"The liberal construction provisions of the Workers’ Compensation Act are for the purpose of bringing employees and employers under the Act and once within the provisions of the Act, the Act shall be applied impartially to both the employer and the employee.” Whiteman, 1987 Legislative Summary Part II, 56 J.K.B.A. 24 (Sept./Oct. 1987).
Although this statement of legislative intent has yet to receive application by our appellate courts, the rule has long been stated in our reported cases that the Workers Compensation Act is to be liberally construed to allow coverage whether invoked by the worker or statutory employer. Baird v. Phillips Petroleum Co., 535 F. Supp. 1371 (D. Kan. 1982); Schafer v. Kansas Soya Prod- nets Co., 187 Kan. 590, 358 P.2d 737 (1961); Lessley v. Kansas Power & Light Co., 171 Kan. 197, 208, 231 P.2d 239 (1951).
The legal issue we must decide is whether Rodriquez became the “statutory employee” of Garden City. The applicable statute reads in pertinent part:
“Subcontracting, (a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.” K.S.A. 44-503(a).
The purpose of this statute is to prevent evasion of compensation coverage by subcontracting the employer’s normal work. 1 Larson, Workmen’s Compensation § 49.00 (1991). It has become common to speak of the relationship as one of a “statutory employer” to a “statutory employee.” This description arose because the legislature by statute desired to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has the ability to ensure appropriate compensation for its workers. Larson,. § 49.11.
Because the Workers Compensation Act is the exclusive remedy of an injured worker, this test is usually invoked for the benefit of an employer in defending a civil action for damages. See Woods v. Cessna Aircraft Co., 220 Kan. 479, 481, 553 P.2d 900 (1976), and Shuck v Hendershot, 185 Kan. 673, 347 P.2d 362 (1959). In Woods, the well-settled rule was restated: If a worker can recover workers compensation under the act, that remedy is exclusive and he cannot maintain a common-law action for damages against a party from whom he could have recovered workers compensation. 220 Kan. at 482.
The purpose of K.S.A. 44-503(a) is set forth in Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P.2d 613 (1946):
“A prime purpose of section 44-503 of the workmen’s compensation act is to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” 161 Kan. 345, Syl. ¶4.
The tests that must be applied to determine whether a task being performed by an employee is part of the principal’s trade or business were set forth in Hanna v. CRA, Inc., 196 Kan. 156, 159-60, 409 P.2d 786 (1966):
“(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.”
Most of the cases that discuss the “part of his trade or business” language apply the first test, but it is clear the second test also was intended to apply and an affirmative answer to either renders the Workers Compensation Act applicable. Woods, 220 Kan. at 484.
The cases contain no formula or list of factors deemed controlling. In Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 315, 564 P.2d 521 (1977), the Kansas Supreme Court, in finding that modification work contracted to be performed for Beech Aircraft by United Aircraft was an integral part of the latter’s trade or business, stated:
“K.S.A. 44-503(a) does not require the work undertaken to be the primary work of the principal contractor. It is sufficient if such work is a part of the overall operations of the principal contractor. A principal contractor may engage in several types of business activity, any one of which may constitute an integral part of its trade or business.” (Emphasis added.)
In Robinson v. Flynn's Ferry Service, Inc., 6 Kan. App. 2d 709, 633 P.2d 1166, rev. denied 230 Kan. 819 (1981), our court held that when one flying service contracted with another to ferry an aircraft, the pilot employee of the latter became the statutory employee of the former under 44-503(a). Judge Spencer opined that the fundamental premises upon which liability is predicated under 44-503(a) is the existence of a contract between the two employers, citing Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 3, 562 P.2d 75 (1977).
K.S.A. 44-503(a) has been applied to cases in which the work undertaken is not the primary work of the principal. In Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983), an employee of a roustabout service who was trenching ditches and installing a pipeline between a new well and a separator was deemed to be the statutory employee of the owner/producer of the oil and gas lease. Justice McFarland set forth the tests we have previously enumerated herein and opined:
“The provisions of the Workmen’s Compensation Act are to be liberally construed to bring workers under the act whether or not it is desirable for the specific individual’s circumstances. Orr v. Holiday Inns, Inc., 230 Kan. 271, 634 P.2d 1067, adopting 6 Kan. App. 2d 335, 627 P.2d 1193 (1981).” 233 Kan. at 65.
She went on to state:
“The business of Graves is leasing, developing, operating and producing oil and gas properties. The undisputed facts show the drilling of wells, their completion, and their hookup to tank batteries were integral parts of such business. Further, Graves, as producer/operator of the lease, had the responsibility of bringing the new well into production — either by performing the necessary work itself or hiring it done by outsiders.” 233 Kan. at 65.
We will not attempt to cite every Kansas case involving this issue. Many are collected in the Kansas Workers Compensation Handbook § 4.05 (1990) and several are cited at 6 Kan. App. 2d at 714. These cases consistently hold that employees of independent contractors performing work which is a part of the principal’s “trade or business” are statutory employees of the principal.
Garden City may be a municipal corporation but, when it becomes involved as a local housing authority, its trade or business becomes everything inherent to the ownership and operation of an apartment complex with a large number of tenants. It is clear that the repair, maintenance, and operation of the Pershing Manor apartment is a part of the primary trade or business of the Garden City Housing Authority. Roof repair was essential to protect the building and ensure that it remained habitable.
The construction placed on the statute by the trial court is too narrow and too restrictive. K.S.A. 1990 Supp. 44-501(g) and prior decisions direct us toward a liberal construction of the law when coverage is an issue.
Smith testified that in order to follow HUD guidelines, the Garden City Housing Authority was obligated to provide safe, decent, and sanitary living conditions for low income families. Smith said it is her responsibility “to see that the building is taken care of.” The repair of the roof damaged by a western Kansas storm was an integral part of the Garden City Housing Authority’s trade or business. Rodriquez is the statutory employee of the City of Garden City pursuant to K.S.A. 44-503(a) and is covered by the Workers Compensation Act.
Although we hold that maintenance and repair of the roof was within the trade or business of the Garden City Housing Authority in its capacity as the owner/operator of rental property we do not find, as Rodriquez argues, that the decision of Harper v. Broadway Mortuary, 6 Kan. App. 2d 763, Syl. ¶ 2, 634 P.2d 1146 (1981), construing the statutory wording relating to the contracting out to a third party of a contracted-for service, requires our finding that he was a statutory employee.
The relationship between HUD and the Garden City Housing Authority may be contractual, but there was no specific evidence that HUD contracted with Garden City, which in turn contracted with Russell Construction for the repair of the roof. Such would have to be the factual situation for Harper to apply. In Harper, a mortuary contracted with one of its customers for a funeral. The mortuary then contracted with Air Capitol Escort Service to provide an escort for the funeral procession. One of Air Capitol’s employees, who fell and was killed while providing this service, was held to be the statutory employee of the mortuary. This holding was proper because the specific wording of K.S.A. 44-503(a) provides that a principal shall be liable to any workman performing work “which he [the principal] has contracted to per form.” (Emphasis added.) The Garden City Housing Authority has agreed to follow HUD guidelines in the operation of the Pershing Manor low income housing project, but we find no evidence of HUD having the repair and maintenance obligation, which it in turn contracted to the Garden City Housing Authority.
Reversed and remanded with instructions to enter judgment that Rodriquez is the statutory employee of Garden City and covered by the Workers Compensation Act. The trial court is directed to determine the nature and extent of Rodriquez’s disability and the compensation to be awarded. | [
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Gernon, J.:
In this workers compensation appeal, Jorge A. Perez appeals the confirmation of a permanent partial disability award by the district court.
Perez was injured in a fall while working at IBP, Inc. He testified that' his injuries have prevented him from engaging in any type' of employment since he left IBP several weeks after the accident. He was examined by two physicians and a vocational rehabilitation consultant. The vocational rehabilitation consultant utilized a computer which contained the Dictionary of Occupational Titles, worker-trait factors. The consultant concluded that, prior to the injury, Perez was capable of performing 9,487 different jobs available in Kansas; but, after the injury, he was capable of performing only 4,351 different jobs.
The administrative law judge made an award to Perez with the following findings:
“Taking into consideration the entire record made in this matter, it is found that, as a result of the claimant’s accidental injury sustained on January 22, 1988, he possesses 8%, permanent partial disability to the body as a whole. Dr. Delgado’s testimony is considered to be the credible medical evidence in this matter. The claimant has.not proved by a preponderance of credible evidence that he has sustained any loss of ability to perform work in the open labor market and to- earn comparable wáges. Therefore, the claimant must be limited to the functional disability in so far as . compensation benefits [are] concerned..”
The director of workers compensation affirmed the administrative law judge’s award in all aspects, finding that Perez had not proved that he suffered from any work disability or that his functional disability was greater than the 8% awarded. After a timely petition by Perez, the district court conducted a de novo review of the record and found that Perez had suffered a permanent partial functional impairment of 12% of the body as a whole, but also found no work disability. Perez appeals the district court’s findings.
The standard of review for a workers compensation case was recently repeated by our Supreme Court in Hughes v. Inland Container Corp., 247 Kan. 407, 799 P.2d 1011 (1990):
“In a workers compensation proceeding, the claimant has the burden of proof to establish her right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K. S.A. 1989 Supp. 44-501(a). The burden of proof is ‘the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.’ K.S.A. 1989 Supp. 44-508(g). The scope of review by a district court in a workers compensation case is by trial de novo on the record. The district court hears no new or additional evidence, but makes an independent adjudication of the facts and law based upon the transcript of the proceedings before the director of workers compensation. [Citation omitted.]
“In an appeal from the district court in a workers compensation case, the scope of review by an appellate court is to determine whether the district court’s judgment is supported by substantial evidence. The evidence is viewed in the light most favorable to the party prevailing below, and, if substantial evidence supports the district court’s factual findings, the appellate court does not reweigh the evidence or reverse the final order of the district court.” 247 Kan. at 410.
Simply put, Perez failed to carry his burden of proof on the work disability issue. The district judge noted in his decision that Perez worked five hours the day after the accident, apparently worked a full shift in each of the next three days, and worked a total of 33 out of 57 possible work days after the accident before he was fired for poor attendance.
K.S.A. 1990 Supp. 44-510e(a) creates a presumption that no work disability exists under circumstances where the worker returns to the same work, for the same wage, after an injury.
Given the record before us and given our standard of review, together with the presumption contained in K.S.A. 1990 Supp. 44-510e(a), we conclude that there is a substantial basis for the trial court’s finding of no work disability and, therefore, we affirm.
Affirmed. | [
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Gernon, J.:
Mark E. Robinson appeals the denial of his motion for a new trial. The issue on appeal is whether the trial court erred by allowing peremptory challenges to remove the only three black jurors from the jury panel in this civil case.
The facts are not in dispute. Mark Robinson, then age five, was injured while playing ball in his backyard. Robinson chased after a ball and fell headfirst into an excavation at a home site under construction adjacent to his home.
Robinson filed suit against McBride Building Company, Inc., (McBride) the owner of the property, and Max Rieke Brothers, Inc., (Rieke Brothers) and Rieke Construction Systems, Inc., (later corrected to Rieke Concrete Systems, Inc.). Rieke Brothers was the excavation contractor and Rieke Concrete Systems, Inc., was the foundation subcontractor. Rieke Concrete Systems, Inc., obtained summary judgment and is not involved in this appeal.
Robinson’s counsel informed the trial judge before voir dire that he wanted to make a record of black and minority veniremen in the event defendants utilized their peremptory strikes to remove minorities from the jury panel.
After voir dire but before the jury was sworn, Robinson’s counsel noted that the defendants had used their peremptory challenges to strike all three black members remaining on the panel after the panel was examined for cause and contended that such use of peremptory challenges was a violation of his client’s right to due process. Robinson’s counsel stated that the defendants must articulate a valid reason that would “survive appropriate scrutiny” to justify removal of the black jurors from the panel. He further stated that he intended to appeal should the outcome disfavor his client. At the end of Robinson’s case, counsel for Robinson, outside the hearing of the jury and for the purpose of preserving the issue on appeal, raised again the peremptory strikes and asked the court for the record to reflect that Robinson was black.
The jury found none of the defendants at fault. Robinson moved for a new trial based on the alleged discriminatory use of the peremptory challenges by the defendants. The trial court denied the motion.
PRESERVATION OF APPEAL
The defendants assert that Robinson failed to properly preserve his claim for appeal. They contend that Robinson merely expressed a desire to make a record, stating an opinion and a feeling that the defendants should articulate a neutral reason for their peremptory challenges.
K.S.A. 60-246 states:
“Formal exceptions to rulings or orders of the court are unnecessary. 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 or she desires the court to take or his or her objection to the action of the court and his or her 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 the party.” (Emphasis added).
The defendants note that Robinson failed to object to the jury or request its discharge. They cite State, ex rel., v. Fadely, 180 Kan. 652, 660, 308 P.2d 537 (1957), and National Van Lines v. Jones, 192 Kan. 338, 341, 388 P.2d 660 (1964), for the proposition that a constitutional issue not duly raised, argued, and relied upon by the court is not preserved and will not be decided on appeal. Both cases dealt with the constitutionality of a statute and whether that issue had been preserved for appeal. The court in both cases recognized the general rule that only those questions presented to and decided at trial would be considered on appeal.
The question here is whether the record supports Robinson’s position that an objection was made and whether the record clearly shows that the court ruled on said objection.
The Kansas Code of Civil Procedure does not address challenging the jury panel, other than to allow peremptory strikes and strikes for cause.
The record reflects that, after voir dire was completed and before the jury was sworn in, a bench conference was held, at which time Robinson’s attorney again raised the point regarding the peremptory challenges and also stated that i.he defendants must articulate a valid reason that would survive appropriate scrutiny by the court to justify the removal of the three black jurors from the jury panel. A discussion then took place between the court and the defendants’ counsel in which defendants’ coun sel stated their position that it was unnecessary to articulate a reason for peremptory challenges in a civil case.
After more discussion between counsel for all parties and the court, the following took place:
“Mr. Dempsey: Judge, I would like the record to be crystal clear on this one factual point that there are no other blacks that have remained after the for cause strikes other than the three that were all removed by these defendants. The record, I think, needs to be crystal clear on that point.
“The COURT: I think it’s clear. Is there any question about it? I just don’t know of any rule that they have to articulate any reasons for peremptory challenges.
“Mr. Dempsey: I am making the record, and I realize that the Kansas Supreme Court has not ruled on this issue yet.
“The COURT: Okay. Anything else?
“Mr. Dempsey: Nothing, Judge. Thank you.”
Robinson’s attorney did not directly request the court to take any action on which the court could rule, nor did he object to the court’s failure to compel the defendants to explain the peremptory challenges in order to meet the requirements of K.S.A. 60-246. While the better practice certainly would have been for Robinson’s counsel to have requested the court to rule on whether defendants must explain the challenges or request that the jury be dismissed, our reading of the record leads us to conclude that both the court and counsel clearly understood that an objection was being lodged. We read the colloquy between court and counsel to be an argument on a specific objection, of which all parties had been put on notice even before the voir dire began and on which the court ruled when it stated that it knew of ho rule which made it necessary to articulate a reason for a peremptory challenge in a civil suit. We interpret this language tó be a statement overruling Robinson’s objection.
Given this analysis, we conclude that the issue was properly preserved for appeal.
RACIALLY MOTIVATED PEREMPTORY STRIKES'm A
CIVIL CASE
Robinson raises the issue of whether racially motivated peremptory strikes in a civil lawsuit are prohibited by the United States Constitution and Kansas statutes.
Robinson, in alleging the trial court erred by allowing defendants’ unchallenged peremptory strikes, relies on State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987), in which Kansas adopted the rule stated by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). In Batson, the United States Supreme Court ruled that a criminal defendant need only show that he or she is a member of a cognizable group and that the prosecutor has exercised peremptory challenges to remove from the venire members of that group. Further, Batson states that a defendant is entitled to rely upon the fact that peremptory challenges constitute a jury selection process that permits “those to discriminate who are of a mind to discriminate.” 476 U.S. at 96. Under Batson, the defendant must show that an inference is raised that the prosecutor used the practice to exclude the veniremen from the jury on account of their race or group. 476 U.S. at 96.
Recently, the United States Supreme Court, in Edmonson v. Leesville Concrete Co., 500 U.S. _, 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991), applied Batson to civil cases. In Edmonson, the Court found: “A traditional function of government is evident here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no attributes of a private actor.” 114 L. Ed. 2d at 676. The Court in Edmonson further stated:
“In the jury-selection process, the government and private litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and functions in [Polk County v.] Dodson [, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981)], so here a private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race.” Edmonson, 114 L. Ed. 2d at 677.
“If a government confers on a private body the power to choose the government’s employees or officials, the private body will be bound by the constitutional mandate of race-neutrality.” Edmonson, 114 L. Ed. 2d at 676.
Therefore, in light of Edmonson, it is necessary for us to decide whether Edmonson, which was decided five months after the January 3, 1991, judgment in Robinson’s case, should be retrospectively applied.
Kansas has addressed retrospective application of the Batson rule to criminal cases. In Hood, Batson was retrospectively applied in light of Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). “Batson must be applied retroactively to cases which are pending upon direct appellate review, or which were not final, at the time the new rule was established.” Hood, 242 Kan. at 117. That rule is being followed in Kansas criminal cases. State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991).
The United States Supreme Court noted in Griffith, 479 U.S. at 322, that civil retroactivity was governed by the standard in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). In Chevron, the United States Supreme Court dealt with nonconstitutional issues involving the Outer Continental Shelf Lands Act but noted that it had “recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.” Chevron, 404 U.S. at 106.
Chevron held three factors relevant to determining whether a judicial decision should be retroactively applied. These are:
“First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted] or by deciding an issue of first impression whose resolution was not clearly foreshadowed [citation omitted]. Second, it has been stressed that ‘[the court] must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Citation omitted.] Finally, [the court should weigh] the inequity imposed by retroactive application . . . .” Chevron, 404 U.S. at 106-07.
See In re Estate of McDowell, 245 Kan. 278, 281, 777 P.2d 826 (1989).
McDowell merely restated the Chevron factors, stating á “judicial decision may be applied prospectively only if: (1) the decision establishes a new rule of law; (2) retroactive application would not further the principle on which the decision is based; and (3) retroactive application would cause substantial hardship or injustice.” McDowell, 245 Kan. 278, Syl. ¶ 2.
Most recently, the United States Supreme Court, in James B. Beam Distilling Co. v. Georgia, 501 U.S. _, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991), limited the application of the Chevron analysis.
In Beam, the petitioner sought to retroactively apply the United States Supreme Court’s decision in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 82 L. Ed. 2d 200, 104 S. Ct. 3049 (1984), which held that a Hawaii law imposing an excise tax on imported liquor was unconstitutional, to a similar Georgia state law on a claim arising on facts antedating that decision. Beam, 115 L. Ed. 2d at 486. The question presented was “whether it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so.” Beam, 115 L. Ed. 2d at 491.
Under Beam, “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” Beam, 115 L. Ed. 2d at 493. Once a new rule of federal law is retroactively applied, “it is chosen for all others who might seek its prospective application.” Beam, 115 L. Ed. 2d at 493. Given Beam, the Chevron analysis need not be considered. The Chevron analysis applies only in cases where the Supreme Court applies a new rule prospectively and a state court then deals with the issue of whether to apply that new rule prospectively or retroactively.
The effect of Beam, insofar as we are concerned, is that the four options to be considered in the application of overruling decisions under Vaughn v. Murray, 214 Kan. 456, 465-66, 521 P.2d 262 (1974), are now reduced to two options where the overruling decision involves application of a new federal rule of law. Those two options are:
“(1) Purely prospective application where the law declared will not even apply to the parties to the overruling case. ... (3) General retroactive effect governing the rights of the parties to the overruling case and to all pending and future cases unless further litigation is barred by statutes of limitation or jurisdictional rules of appellate procedure.” Vaughn, 214 Kan. at 465.
In Edmonson, the United States Supreme Court applied the new constitutional rule of federal law to the litigants of the case. Therefore, under Beam, we are required to retroactively apply the rule from Edmonson to all similar litigation pending and not barred by procedural requirements or res judicata.
Given our conclusion that the appeal is not barred by any jurisdictional rule of appellate procedure and that there is no issue raised concerning the statute of limitations, we conclude that the ruling in Edmonson is applicable here.
For the reasons stated herein, this case is remanded to the district court for further proceedings. If, upon hearing the matter, the trial court determines that the defendants had a neutral reason for striking the three black jurors by peremptory challenge, no further proceedings are required and the verdict is affirmed. If, however, the trial court concludes that the defendants exercised peremptory challenges to remove from the venire, without a neutral reason, members of a cognizable group of which the plaintiff, Robinson, is a member, then the court shall set aside the verdict and order a new trial.
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LEWIS, J.;
This is an appeal from the modification of a 1980 divorce decree pursuant to K.S.A. 60-260(b)(6). The trial court modified the decree to terminate the child support obligations of the appellee after it determined that he was not the biological father of the minor child for whom support was being paid. The mother of that minor child is the appellant. In this opinion, we shall refer to the appellant as Cheryl, to the appellee as Michael, and to the minor child as M.J.W.
We have carefully reviewed the record and conclude that relief was improvidently granted, and we reverse.
This is the second occasion for us to deal with an appeal of this action. Originally, the trial court determined that Michael was not the natural father of M.J.W. and terminated his child support obligations. Cheryl appealed that decision to this court, and we reversed and remanded. (Wilson v. Wilson, No. 63,667, unpublished opinion filed December 29, 1989.) We determined on the first appeal that the trial court had erred in considering the question of paternity without determining whether such consideration was in the best interests of the child as required by In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). We reversed and remanded for appointment of a guardian ad litem and an evidentiary hearing as to what was in the best interests of M.J.W.
The record now before us is the result of the proceedings on remand.
This is a most troublesome fact scenario. At issue is a judicial inquiry as to whether Michael is the natural father of M.J.W. M.J.W. is nearly 17 years of age and was raised to believe that Michael was his natural father. Indeed, as poor as Michael may have been in that role, he was and is the only father M.J.W. has ever known. The ultimate effect of these proceedings on M.J.W. remains a matter of conjecture.
M.J.W. was born to Cheryl a few months prior to her marriage to Michael. However, Michael is listed on the birth certificate as the father of M.J.W.
In 1979, Michael filed an action for divorce. In his petition, he alleged that M.J.W. was the only child of the marriage, asked that he be given visitation rights with M.J.W., and asked that the court set a reasonable amount of child support. The divorce decree stated that M.J.W. was a child of the marriage, awarded custody of M.J.W. to Cheryl, and granted visitation rights to Michael. The initial child support was set at $140 per month. While we perceive that Michael may have had some difficulty in paying the child support, the record indicates that he did so at least sporadically for a number of years.
In 1982, Michael remarried. He and his new wife were apparently unable to conceive a child, and, sometime in 1982, Michael underwent medical testing and was advised by a urologist that he was sterile and most likely had been since birth. At this point, Michael had substantial evidence to indicate that he was probably not the biological father of M.J.W.
In that same year of 1982, Cheryl filed a motion seeking to hold Michael in contempt for failure to pay child support. Michael responded by filing a motion of his own in which he claimed he was not the father of M.J.W. and asked the court to order paternity blood tests. The trial court denied this motion but, at the same time, suggested that Michael file a motion to modify or set aside the part of the divorce decree that related to the paternity of M.J.W. Michael, who was represented by counsel at this time, did nothing further to raise the issue of paternity for nearly six years.
In 1988, Cheryl filed a motion to increase child support. Michael responded by again claiming he was not the father of M.J.W. and again requested blood tests. This time, the trial court granted his motion, and blood tests were taken. The results show that Michael is not the biological father of M.J.W. Upon a consideration of this blood test result, the. trial court terminated Michael’s support obligation, and Cheryl appealed that decision to this court. This resulted in our first disposition of the case, which has been discussed earlier.
When wé reversed and remanded the first decision, we did so on the basis of In re Marriage of Ross, 245 Kan. 591. Ross holds that, before ordering blood tests and considering paternity, the trial court must first consider the interests of the child. This requires the appointment of a guardian ad litem to represent the child and a full evidentiary hearing. The issue of paternity is to be considered only if the trial court concludes, from the hearing, that such consideration is in the best interests of the child.
The trial court, on remand, appointed a guardian ad litem for M.J.W. and held a full evidentiary hearing on whether the consideration of paternity was in the best interests of M.J.W. After that hearing; the trial court held that it was in the best interests of M.J.W. to consider whether Michael was his biological father.
We hold that the trial court fully complied with our order of remand. The procedure followed what is required by In re Marriage of Ross and is in accord with this court’s decision to reverse and remand the trial court’s original determination. We may disagree with the conclusion that it was in the best interests of M.J.W. to leave him fatherless and without child support assistance. However, we are not the trier of fact and will not attempt to second-guess the trial court on this issue.
We further conclude that the trial court did not err in considering the blood test evidence and in concluding that Michael was not the biological father of M.J.W. We also agree with the trial court’s finding that there was no psychological bonding between M.J.W. and Michael and no real father/son relationship. We consider this lack of bonding to be the direct and total fault of Michael, who made very little, if any, effort to be a father to M.J.W.
After the trial court concluded that Michael was not the father of M.J.W., it advised Michael that it could grant no further relief without the filing of a motion under K.S.A. 60-260(b). Michael filed that motion, and the trial court granted it and modified the divorce decree by relieving Michael of his child suppoit obligations. Our conclusion is that the trial court misapplied 60-260(b) and abused its discretion in granting the motion.
We begin by considering the argument of the appellant that the trial court violated the directions of this court by ordering a K.S.A. 60-260(b) motion to be filed.'We respond to that argument by holding that it is without merit. .
Cheryl takes the position that Ross is somehow to be interpreted as holding that only a guardian ad litem, appointed to represént the child, may raise the issue of paternity. We have reviewed Ross and have no hesitation in holding that Ross does not establish such a rule.. Indeed, we. find, nothing , in Ross to support the position taken by Cheryl on this appeal. Ross stands for the proposition that the issue of paternity cannot be considered until a guardian ad litem is appointed for the child and a hearing is held-to determine whether such, consideration is in the best interests of the child. Ross does not state nor does it evep attempt to state who may raise the issue of paternity. . . ;
We find the appellant’s argument that only the, guardian: ad litem could raise the issue of paternity or file .the 60-260(b) motion to be without merit.
K.S.A. 60-260(b) is the proper vehicle for modification of a final judgment of a trial court. The question in this case ,is whether that statute was misapplied and/or whether the motion was timely filed.
K.S.A. 60-260(b) reads, in pertinent part, as follows:
“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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) 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); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentatioii, or other misconduct of an adverse party; (4) the judgment' is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or .it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of,the judgment. The, motion shall be made within a reasonable .time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
In this case, the trial court granted relief under K.S.A. 60-260(b)(6), which is the catch-all phrase and which authorizes the granting of relief for “any other reason justifying relief from the operation of the judgment.” Under the facts shown, the trial court had no authority to grant the motion under the provisions of 60-260(b)(6).
The general rule applied by both state and federal courts is that the first five grounds of the statute, which are specific, and the sixth, which is the general catch-all, are mutually exclusive:
“K.S.A. 60-260(fo) enumerates six grounds for relieving a party from a final judgment. The first is ‘mistake, inadvertence, surprise, or excusable neglect,’ the sixth is ‘any other reason justifying relief from the operation of the judgment.’ Any motion for relief under the section must be made ‘within a reasonable time’; if under one of the first three grounds, the motion must be filed within one year.
“Under Fed. R. Civ. P. 60(b), which is identical to K.S.A. 60-260(fc), it is generally held that the first five grounds, which are specific, and the sixth, which is a general catch-all, are mutually exclusive. Klapprott v. United States, 335 U.S. 601, 93 L. Ed. 266, 69 S. Ct. 384 (1949); Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2864 (1973). The issue before us is, then, whether the order granting relief from the judgment of dismissal was based exclusively on a ‘mistake’ under K.S.A. 60-260(Z>)(l), or whether it was based on ‘any other reason justifying relief from the operation of the judgment,’ under 60-260(b)(6). If the former, the motion for relief was too late since it came more than one year after the dismissal. If the latter, the motion was timely as being filed ‘within a reasonable time.’ ” Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, 141, 626 P.2d 1240 (1981).
In the later case of In re Marriage of Hunt, 10 Kan. App. 2d 254, 260, 697 P.2d 80 (1985), we said:
“Judicial construction of K.S.A. 60-260(b) likewise offers no support for the husband’s argument. ‘Under 60-260(b), the first five grounds, which are specific, and the sixth, which is a general catch-all, are mutually exclusive.’ Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, Syl. ¶ 1, 626 P.2d 1240 (1981). Fed. R. Civ. Proc. 60(b), which is identical to 60-260(b), has been interpreted similarly. [Citation omitted.] This does not, however, require a 60-260(b) movant to seek relief under only one of the six subsections. Rather, this construction is aimed at preventing parties from using the general catchall provision, 60-260(b)(6), to escape the time limits for vacating a judgment imposed under the first three subsections of 60-260(b). Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140; see Klapprott v. United States, 335 U.S. at 613-15. Thus, if the basis for setting aside a judgment is, for example, fraud by an adverse party, a 60-260(b) movant can obtain relief only if he files his motion not more than one year after judgment was entered; the party cannot escape this time limit by seeking relief under 60-260(b)(6). See 11 Wright & Miller, Federal Practice & Procedure: Civil § 2864 (1973). Assuming a party files a 60-260(b) motion within a year of the entry of judgment, as the wife did here, the district court is authorized to grant relief for any of the reasons set forth in the statute. See In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984).” (Emphasis added.)
Federal Rule 60(b) is identical to K.S.A. 60-260(b) and, as a result, federal decisions are relevant to our consideration. The federal courts are in accord that 60-260(b)(6) is not to be used to circumvent the time limitations which apply to the first three grounds of 60-260(b). “[I]t is settled that an appellant cannot circumvent the one year limitation by invoking the residual clause (6) of Rule 60(b).” Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.), cert. denied 409 U.S. 883 (1972).
In Wallace v. McManus, 776 F.2d 915, 916 (10th Cir. 1985), we find: “Rule 60(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of Rule 60(b).”
In Matter of Emergency Beacon Corp., 666 F.2d 754, 758 (2d Cir. 1981), the court said that relief from judgment under clause (6) providing for relief for “any other reason justifying relief’ is not available under rule (Fed. R. Civ. Proc. 60) unless the asserted grounds for relief are not encompassed within any of the first five clauses of the rule.
In Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981), the court stated:
“It is established that clause (6) and the preceding clauses are mutually exclusive; a motion brought under clause (6) must be for some reason other than the five reasons preceding it under the rule. Thus, in Corn v. Guam Coral Co., 318 F.2d 622 (9th Cir. 1963), the appellant alleged that both clause (2) and clause (6) entitled him to relief from judgment. This Court, citing Klapprott v. United States, 335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949), rejected the claim for relief under clause (6); ‘[Rjelief can be had under Rule 60(b)(6) only for reasons other than those enumerated in Rule 60(b)(l)-(5). . . . [Ajppellants here have suggested no reason other than newly discovered evidence for relief from judgment.’ Id. at 632. Indeed, the language of clause (6) itself, referring to ‘any other reason justifying relief,’ seems to dictate such a result.”
Without extending this opinion, we will simply state that most decisions of our sister states, which have statutes similar to 60-260(b), are in accord. Relief cannot be granted under 60-260(b)(6) if the real basis for granting the relief is one of the first three reasons listed in the statute and more than a year has gone by. In other words, the courts will not countenance the use of 60-260(b)(6) to avoid the limitations imposed on use of the first three grounds for relief.
Our examination of the record in this case shows that the real basis for granting relief was that of newly discovered evidence. That newly discovered evidence consisted of the paternity blood tests, which showed that Michael was not the biological father of M J.W. As a result, the trial court’s action was an attempt to modify its decree on the basis of newly discovered evidence at a period of time when more than one year had expired since the date of the decree. This is not permitted under the decisions cited above, and it was error for the trial court to utilize 60-260(b)(6) in this fashion.
The record is replete with indications that the actual reason for relief in this case was newly discovered evidence. Counsel for Michael candidly admitted such on oral argument before this court. In his motion, Michael alleged, among other things, the following:
“In support of said Motion, Petitioner would state to the Court that evidence has been received which shows by a medical certainty that the Petitioner herein is not the father of the Respondent’s minor child, to-wit, MJW, and it is no longer equitable that the Court’s judgment entered herein have prospective application and Petitioner further believes that justice and equity require the Court to grant him relief from the Court’s prior judgment.
“In further support, Petitioner would state and allege that the Court’s original judgment was void, as it was based upon the fraudulent omission of information by the Respondent herein in that Respondent knew that the father of the minor child (MJW) was in fact a man by the name of Ronald Jerry Newton, who is now deceased.”
It is apparent from a reading of the motion that relief was sought on the basis of newly discovered evidence and fraud. These two grounds áre subsections (2) and (3) under 60-260(b) and, in both instances, relief on the basis of newly discovered evidence or fraud, must be brought within one year from the entry of the judgment. In this case, far more than one year had expired.
There is also an indication that the trial court in fact granted relief on the basis of newly discovered evidence. At one point in announcing its judgment, the trial court stated:
' “As to res judicata, I am going to find that it does not apply in this instance, that under the relief from judgment the matter is being determined on the basis of an altogether different set of facts than were available at the time of the original pleading. ... •
“So accordingly, the Court is going to find res judicata, does not apply and that the matter was presented to the Court on the basis of the facts which were available at the time.”
It is ..difficult to interpret these remarks by the trial court as granting the relief on any basis other than that of newly discovered evidence.
Based upon the facts shown, we hold that the basis of the trial court’s. modification of its divorce decree was newly discovered evidence. Accordingly, it was error to attempt to circumvent the one-year .time limitation that applies to 60-260(b)(2) by granting relief , under 60-260(b)(6). We have examined the record very carefully and can find nothing in the pleadings or. the evidence presented to indicate that there were any “special circumstances” or any “extraordinary facts” shown that would justify the imposition of 60-260(b)(6). The trial court committed reversible error by attempting to apply 60-260(b)(6) in a situation where the true basis for relief was barred under 60-260(b)(2).
Even if we were to assume that 60-260(b)(6) could be utilized to support the trial court’s decision, we are still convinced that the judgment should be reversed. A motion under 60-260(b) must be filed within a “reasonable time.” The reasonable time frame is measured by determining when the movant came into possession of facts justifying the relief as compared to the time when he filed the motion seeking the relief.
In the instant matter, Michael was aware in 1982 that he was sterile and, in all probability, not the father of M.J.W. He was further advised by the trial court in 1982 to file a 60-260(b) motion. He did not do so then, and he waited nearly six years before filing such a motion.
We are aware of no Kánsas decisions which discuss what factors must be considered in determining this issue. However, in U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 660-61 (1st.Cir. 1990), the defendant was seeking relief from a, consent decree which had been filed three years earlier. The Federal Circuit Court, in discussing the question of whether that motion had. been filed within a reasonable time, said that what constitutes “reasonable time” for seeking relief from, judgment depends on the facts of each case; relevant considerations include ¡whether parties have been prejudiced by delay and whether good reason has been presented for failing to take action sooner..;.,
In United States v. Holtzman, 762 F.2d 720, 725 (9th Cir. 1985), the court said that what constitutes reasonable time to bring a motion for relief from judgment depends on the facts of each case, which are analyzed to determine whether govérnmént was prejudiced by the delay and whether the party seeking relief had good reason for failing to take action sooner.
In Matter of Emergency Beacon Corp., 666 F.2d 754, 760, the court said that what qualifies as a reasonable time within which relief from a final judgment for “any other reason justifying relief’ may be granted will ordinarily depend largely on the facts of a given case, including tbe length and circumstances of the delay and the possibility of prejudice to the opposing party.
Applying those rules to the facts now before this court, we have no hesitancy in concluding that the trial court abused its discretion in granting Michael’s motion. The motion was not filed within a reasonable time. We find nothing in the record to explain why Michael did not file the motion in 1982 as suggested to him by the trial court. There is no good reason given for the six-year delay, and we doubt if one exists. Apparently, Michael made a free and calculated decision in 1982 to ignore the court’s advice and to continue to occupy his position as the father of M.J.W. with its attendant child support obligations.
“The broad language of K.S.A. 60-260 (b) (6) authorizing relief for “any other reason justifying relief from the operation of the judgment’ gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. 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.” (Emphasis added.) Neagle v. Brooks, 203 Kan. 323, Syl. ¶ 5, 454 P.2d 544 (1969).
It appears to us that Michael had a duty to take legal steps to protect his interest in 1982 and that, by waiting until 1988 to do so, he failed to take action within a reasonable time.
We have considered whether Michael had a valid reason for waiting six years to raise the issue. The other side of the question is whether such delay has prejudiced any of the other parties. We beliéve that, in circumstances such as this, delay is inherently prejudicial to the child whose life is being torn asunder by judicial proceedings. As Justice Lockett said in In re Marriage of Ross:
“The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child. Although someone may suffer, it should never be the child, who is totally innocent and who has no control over or conception of the environment into which he or she has been placed.” 245 Kan. at 602.
It appears that the delay of revealing to the child that Michael was not his natural father was certainly prejudicial to M.J.W. Because of Michael’s inaction, the child was . led to believe for another six years that Michael was his natural father. We realize that Michael and the child apparently had no psychological bonding and no close father/son relationship. This, however, does not soften the shock to a teenager who is suddenly rendered fatherless by the actions of the court. While the six-year delay on Michael’s part in raising this question may have been financially beneficial to M.J.W., we certainly doubt whether it was emotionally beneficial to the child.
Given the totality of circumstances shown in this case, we hold that the 60-260(b) motion filed by Michael was not filed within a reasonable time after Michael came into possession of reliable medical information that indicated he was not the natural father of M.J.W. For that reason, the trial, court abused its discretion in granting the motion to modify the original divorce decree.
The decision of the trial court is reversed and remanded with instructions to give consideration to Cheryl’s motion to increase child support.
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Pierron, J.:
Equitable Life Insurance Company of Iowa (Equitable) appeals from the summary judgment granted to Fleming Companies, Inc., (Fleming) on Fleming’s petition for declaratory judgment. Fleming had asked the district court to declare its exercise of an option to renew, contained in a certain lease agreement, effective notwithstanding it had given oral notice five weeks after the date expressed in the lease for the notice to have been given in writing.
The facts in this case are fairly detailed' but generally uncontested by the parties. In August 1958, Fleming and Equitable began a series of financial transactions which culminated in a purchase/leaseback agreement. On April 30, 1959, Fleming entered into a Contract for Lease with Equitable whereby Fleming agreed to construct a warehouse facility on certain property and to sell it and the land to Equitable at a price equal to the cost Fleming paid for the land and the completed improvements. The contract further provided that Equitable would then lease the premises back to Fleming.
The parties entered into an Indenture of Lease (lease) on May 28, 1959, whereby Equitable agreed to lease 28.21 acres of land and a warehouse on the land to Fleming for 30 years. The lease term began on November 30, 1960, and ended on November 30, 1990. The lease costs were determined in advance and were calculated so that at the end of 30 years Equitable would have recovered the purchase price and a fixed rate of return on the funds it advanced for the purchase. The lease provided that all permanent additions to the building, except the cold room insulation and refrigeration equipment, would become part of the leased premises and belong to Equitable upon termination of the lease.
The lease provided Fleming with the right, at its option, to renew the lease after expiration of the original term of 30 years and one day by serving a written notice of renewal upon Equitable at least one year before the expiration of the lease. The key date for Fleming to exercise the option to renew the lease was thus on or before November 30, 1989. Neither party disputes the fact that Fleming did not give proper written notice of renewal to Equitable by November 30, 1989.
Leading up to November 1989, Ron Bond was the Fleming employee responsible for the day-to-day monitoring of Fleming’s leases. Bond was a Senior Corporate Financial Analyst and had been with Fleming for approximately 10 years. The internal lease monitoring procedures which Bond had developed showed him in early 1989 that the lease with Equitable would be up for renewal in November 1989.
On June 15, 1989, Bond sent a memo, pursuant to his own standard operating procedure, to Bill Dougherty (controller, Mid-America Region), Jim Costello (president, Topeka Division), and Bob Wilson (controller, Topeka Division) advising them that the term of the lease expired November 30, 1990, and that notice of renewal was due to Equitable by November 30, 1989. Bond requested that they provide him with their intentions regarding renewal of the lease. Bond himself did not have the requisite authority to renew the lease on behalf of the corporation. On July 5, 1989, the Topeka Division advised its supervisors at the Mid-America Region level of its recommendation to renew the lease. The Regional Distribution Director of Fleming then contacted Bond and Steve Davis, one of Bond’s supervisors who did have actual authority to renew the lease, to confirm that: “The Mid-America Region does want to exercise the option to extend the lease which ‘expires November 30, 1990,’ for the 5-year period from December 1, 1990, through November 30, 1995.”
Fleming terminated Ron Bond’s employment on November 10, 1989, due to a company-wide reduction in force. The parties dispute what, if anything, Bond told his supervisors at Fleming following his termination. Bond himself stated that prior to leaving the office on November 10, he met with John Thompson, his immediate supervisor and Fleming’s treasurer, and provided him with a folder containing leases that required “immediate attention.” Bond maintains that Thompson did not ask specifically about the lease in question and that Bond did not tell Thompson or Steve Davis that the lease had been renewed. In his deposition, Thompson stated that on November 1, 1989, he inquired of Bond as to the status of pending lease activity and that Bond replied the Topeka warehouse lease had been renewed. Both Thompson and David Levine, Assistant Treasurer of Fleming, stated Bond told them before he left on November 10 that nothing needed to be done on the Topeka warehouse lease and that it had been taken care of. However, it does not appear from the facts that any of Bond’s superiors verified that renewal had actually been made.
David Leviné assumed Bond’s responsibilities for day-to-day monitoring of Fleming’s leases and began a systematic,, alphabetical audit of all Fleming’s lease files. On January 4, 1990, Fleming discovered that written notice of exercise of the option under the lease had not been given by November 30, 1989. That same day Thompson called Equitable to express Fleming’s intent to exercise the option and to request a waiver of the deadline. On January 5, 1990, Gary Swon of Equitable returned Thompson’s call and indicated that the matter was under scrutiny and that Equitable would convey its position by January 12, 1990.
On January 10, 1990, Swon wrote Thompson and advised Fleming for the first time that Fleming had not given proper, timely notice of its intention to renew and that the lease term would expire on November 30, 1990, as the contract provided. Upon receipt of this letter, Fleming wrote Equitable on January 12, 1990, giving formal written notice of its intent to renew. Equitable responded by letter dated January 22, 1990, stating it considered the late notice of no effect.
Meanwhile, several employees of Equitable knew and had known that written renewal of the lease was required to be given by Fleming by November 30, 1989. These Equitable employees had discussed the issue of the renewal prior to its due date and elected not to take any action to assist or remind Fleming of its renewal option.
Under the lease, Fleming had been paying Equitable $88,958.76 per year as rent, but rent for the five-year renewal period would only be $48,000 per year, based on the terms of the original lease. Furthermore, market rental rate for the facility per year had been appraised af $580,000 to $720,000. Based on these economic considerations, Equitable determined, both prior to and. after the deadline had passed, that the lease with Fleming would be allowed to expire and Equitable would then renegotiate with Fleming for a higher rental payment than the lease provided or, in the. alternative, seek a new tenant for the property.
Fleming filed a Petition for Declaratory Judgment on April 16, 1990, asking the district court to find that Fleming had effectively exercised the renéwál option and that the lease had been validly extended until November 30, 1995, at the contractual renewal rental rate of $48,000. Equitable filed a Counterclaim for Declaratory Judgment, asking the court to find that Fleming had failed to renew the lease, and that Equitable could properly terminate and negotiate new lease terms with Fleming. In a memorandum opinion and entry of judgment dated November 29, 1990, the district court entered summary judgment for plaintiff Fleming and against defendant Eqúitable, declaring the lease between the parties to have been renewed for an additional five years beginning December 1, 1990, by written notice transmitted January 12, 1990. The court further denied Equitable’s motion for summary judgment and found that its counterclaim failed to state a claim upon which relief could be granted. Equitable filed a timely notice of appeal in district court on Decémbér 21, 1990.
The standard for summary judgment rulings 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 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).
See Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990).
“When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. [Citation omitted.] In order to preclude summary judgment, the facts subject to the dispute must be material' to the conclusive issues in the ¿ase. An issue of fact is- 'not genuine unless -it has legal. controlling force-as to a controlling issue. A disputed • question of fact which is immaterial, to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]” Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991); Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, Syl. ¶ 2, 790 P.2d 404 (1990).
Equitable contends there were material issues of fact to be resolved which precluded summary judgment. The district court found that Fleming’s failure to renew the lease was a “mistake,” but Equitable claims the court could not properly reach such a conclusion in light of the factual dispute regarding the renewal. Equitable further argues Fleming was negligent in mishandling the renewal and the district court failed to focus on any of the facts which would suggest possible negligence and which would controvert the court’s finding that Fleming’s failure to renew was a result of mistake.
The parties dispute the facts surrounding the circumstances of the lease renewal, but the district court felt it was doubtful the truth “between the version expressed by Ron Bond versus the version advanced by John Thompson and David Levine can be securely judicially ascertained. If facts were available to advance the analysis of truth better, such facts would have been advanced by able counsel.”
Equitable contends that whether Fleming was negligent is a material issue, for if Fleming is found negligent, such negligence ought to prevent Fleming from profiting thereby in equity. Fleming counters that the characterization of its conduct is irrelevant to the outcome of the case. Furthermore, Fleming argues that, even if the actions by its employees were negligent, this would not preclude summary judgment from being entered in Fleming’s favor because cases such as Car-X Service Systems, Inc. v. Kidd-Heller, 927 F.2d 511 (10th Cir. 1991), and Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47 (1922), will allow equitable relief even if the party is negligent, provided that certain other factors are present.
Based on the standard of review, the characterization of Fleming’s actions as negligent or simply mistaken must be material to the case or the appellate court must find that summary judgment was properly granted. Fleming is correct in stating that should the court adopt the rule of Fountain and Car-X, the characterization of Fleming’s actions is irrelevant as long as its conduct was not intentional, willful, or grossly negligent. Should the court reject the principles of Fountain and Car-X and hold that mere negligence operates as a bar to equitable intervention in this situation, the characterization of Fleming’s conduct will become crucial to the outcome and may call for further development at the trial level.
Fleming maintains the district court properly followed the majority of jurisdictions in the application of equitable principles to determine that Fleming effectively exercised the option to renew. Although there is no Kansas case law directly on point, Fleming argues existing Kansas cases indicate this court should adopt the reasoning in Fountain and Car-X. These cases would allow equity to intervene under certain circumstances even if Fleming’s actions were negligent.
Equitable argues the Fountain line of cases is an exception to the long-established general rule that equity will not intervene in a contract issue in the absence of fraud, mistake, or duress. Equitable relies on Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237 (Tex. App. 1978), and similar cases to support the proposition that negligence in failing to timely exercise an option to renew bars equitable relief.
“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).
Kansas courts have not specifically addressed the application of equitable principles to a situation involving untimely renewal of a commercial lease of real property. However, other Kansas cases which discuss the use of equity in the contract/lease context are helpful.
In Squires v. Woodbury, 5 Kan. App. 2d 596, 601, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981), the court held the trial court had improperly reformed the lease where there was no evidence of fraud, duress, undue influence, unconscionability, or the like. The plaintiff in Squires claimed her inadequate eyesight prevented her from understanding the terms of the lease, but the court held her to the terms of the contract. “The general rule is that competent parties may make contracts on their own terms . . . and in the absence of fraud, mistake or duress, a party who has entered into such a contract is bound thereby.” 5 Kan. App. 2d at 598. See also John Deere Leasing Co. v. Blubaugh, 636 F. Supp. 1569 (D. Kan. 1986) (general rule cited).
However, the court in Squires did recognize that “there is authority for the proposition that unilateral error may be-a good defense to a contract where hardship amounting to injustice would be inflicted by holding a party to the agreement, and where it would be harsh and unreasonable to enforce the agreement.” 5 Kan. App. 2d at 599. This exception would not apply here, for Fleming does not argue that it misunderstood the requirements for renewal; Fleming contends the company was “mistaken” as to whether the notice had actually been given. This type of mistake is outside the scope of Squires.
. Kansas cases discussing equity only clearly exclude willful, intentional, indifferent, or grossly negligent conduct; mere negligence alone does not appear .to bar equitable intervention. In his memorandum opinion, the district court judge cites to. Missouri River, Ft. S. & G. R. Co. v. Brickley, 21 Kan. 206 (1878), as an example of “this judicial attitude and characterization.”
‘And even when time is not thus either expressly or impliedly of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests, or obligations of the parties, in all such cases courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust. But except under circumstances of this sort; or of an analogous nature, time is not treated by courts of equity as of the essence of the contract; and relief will be decreed to the party who seeks it if he has not been grossly negligent and comes within a reasonable time, although he has not-complied with the strict terms of the contract.’ ” 21 Kan. at 221. (Emphasis added.)
There is no evidence in the record to suggest that Fleming’s actions were intentional, willful, or even inexcusably negligent, although Equitable would probably disagree about the character ■of Fleming’s actions.
Eqiuify has been allowed a foot in the door in a few Kansas lease 'Cases "based on the general rule that forfeitures are not favored in the law. Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 657, 504 P.2d 206 (1972). See Letzig v. Rupert, Executor, 209 Kan. 143, 146, 495 P.2d 955 (1972) (equity allowed to intervene to determine whether a forfeiture should be decreed in a rental purchase agreement); Kays v. Little, 103 Kan. 461, 175 Pac. 149 (1918) (court denied cancellation of an oil”'arid gas lease for slight delay in payirient where equitable factors were present)'.
There is, however, case law in Kansas to the effect that equity should not relieve a party from the consequences of its own folly or assist it when its condition is attributable to a failure to exercise ordinary care for its protection. Great Western Mfg. Co. v. Adams, 176 F. 325, 327 (C.C.A. Kan. 1910). See Bowen v. Westerhaus, 224 Kan. 42, 50, 578 P.2d 1102 (1978) (“Equity aids the vigilant.”).
In Gill Mortuary v. Sutoris, Inc., 207 Kan. 557, 485 P.2d 1377 (1971), a commercial lessee of billboard space sued the lessor, seeking specific performance of two lease agreements after a futile attempt by the lessee to exercise options to renew both leases. The district court dismissed the lessee’s action, noting the lessee had not only failed to prove it was entitled to specific performance, but also that the lessee’s evidence “is insufficient to establish any right, in equity, to compel the defendants ... to specifically perform said lease agreements.” 207 Kan. at 560. The Supreme Court of Kansas affirmed. The Tenth Circuit Court of Appeals in Car-X, 927 F.2d 511, used the facts and resolution of Gill to support the proposition that equitable relief may be appropriate under Kansas law in certain circumstances for situations involving an untimely renewal of a commercial lease of real property, even if not proper under the specific facts of Gill.
The facts of Car-X are similar to those in the present case. The issue on appeal was “whether the district court erred in granting equitable relief to a lessee who failed to timely exercise its right to renew a five-year lease of commercial property for an additional five years.” 927 F.2d at 511. The lease required the lessee, Car-X, to renew the lease at least six months before the original term expired. Car-X gave its notice of renewal four and one-half months late. The district court held that, “all things considered, Car-X should not be held to the six months requirement.” 927 F.2d at 515. The district court reached this conclusion based on the fact that the current five-year lease term had not yet expired when Car-X gave its notice of intent to renew; that the lessor did not contend that she never received a copy of the notice; that to declare the option as lost would do relatively great harm to the lessee Car-X; and that by allowing Car-X to remain as lessee for an additional five years would do relatively little harm to the lessor. 927 F.2d at 515. On appeal, the Tenth Circuit affirmed the district court’s ruling, noting further that this case did not involve an intentional or willful failure to timely renew. 927 F.2d at 516.
The situation in the present case closely parallels that of Car-X. The 30-year original lease term had not yet expired when Fleming properly tendered written notice of its intent to renew on January 12, 1990. Equitable does not dispute the fact it received such notice; Equitable’s letter of January 22, 1990, acknowledges its receipt. To declare the option as lost would do relatively great harm to Fleming. In addition to the loss of future use for a possible 20 years of its capital investment (4, 5-year extensions), termination of the lease as of November 30, 1990, would most likely result in the loss of approximately 230 jobs in Topeka and would cost Fleming approximately $4.8 million, which includes the loss of approximately $1.8 million in unamortized leasehold improvements, substantial employee termination, and relocation and moving costs. By allowing Fleming to remain as lessee for an additional five-year period would do relatively little harm to Equitable. Equitable has not actively tried to market the property nor is there any evidence on record that Equitable has received any offers from third parties to buy or lease the premises. Of course, with these proceedings pending, such effort would not likely lead to much in the way of results.
One key difference in this case from Car-X is the fact that the rental amount to be paid by Fleming during the renewal periopl will decrease from $88,958.76 to $48,000, both of which are substantially lower than the market rental rate of $580,000 to $720,000. In Car-X, the rental rate for the renewal period increased from the rental rate of the original lease term. While this factor is relevant, it does not appear dispositive in light of other.considerations, most notably the potential $4.8 million loss by Fleming. Moreover, the rental rate for the renewal period is provided in the lease between the parties to which Equitable originally agreed.
The significant increase in market rental rate for the -property is due in large part to the improvements Fleming has made on the prqperty. Over the .life of t-hie lease, Fleming has made capital imprqvvements to .the premises totaling $5,016, 851 as of September 1990. Of those total, improvements, approximately $2,700,000 were constructed and installed in 1980 and 1981. Further improvements totalling over $300,000 were completed in 1988, and improvements totalling $400,000 were made in 1989. The present value of the property is largely a result of Fleming’s additions and improvements; to argue Fleming should pay more rent because the property is now worth much more in the open market due to Fleming’s own efforts is inequitable.
Both parties argue as persuasive authority cases outside this jurisdiction. Fleming relies heavily on the line of cases beginning with Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47 (1922). The lessee in that case failed to exercise his option to renew within the 30 days provided in the contract. The court held that, because the notice was not timely given, the plaintiff-lessee had “no right to relief unless it can establish . . . such facts as will bring it within the power of equity to relieve.” 97 Conn, at 623. The court went on to establish the rule that
“in cases of wilful or gross negligence in failing to fulfil [sic] a condition precedent of a lease, equity will never relieve. But in case of mere neglect in fulfilling a condition precedent of a lease, which do not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” 97 Conn. at 626-27.
The court also noted that a commercial lessee who has made substantial improvements has an equitable interest in the renewal period in view of the character of the lease and what the lessee has done under it. 97 Conn, at 625.
Cases further discussing this issue are compiled in an annotation which indicates that most courts which have dealt with this issue have recognized there can be special circumstances which may warrant equitable relief from a lessee’s failure to give notice to renew an option in its lease. See Annot., 27 A.L.R.4th 266.
Equitable relies on cases such as Reynolds-Penland, Co. v. Hexter & Lobello, 567 S.W.2d 237 (Tex. App. 1978), in which the court held that mer.e neglect of the lessee in failing to timely exercise its option, absent other ameliorating circumstances such as fraud, misleading statements or acts by the lessor, or waiver, does not justify the interposition of equity to rewrite a lease even though it may result in hardship to the lessee. 567 S.W.2d at 239. The Reynolds-Penland court expressly rejected Fountain, stating that if such a rule were accepted, “all contracts would be called into question as meaningless and uncertain, dependent upon the whims of a panacean court or a jury.” 567 S.W.2d at 241. See McClellan v. Ashley, 200 Va. 38, 104 S.E.2d 55 (1958) (court rejects Fountain as being too broad).
The rule in Reynolds-Penland is of questionable authority and validity, because a subsequent Texas Court of Appeals case expressly abandoned the majority holding in Reynolds-Penland. In the view of that court, Reynolds-Penland could not stand in the face of a prior Texas Supreme Court case, Jones, Administrator v. Gibbs, 133 Tex. 627, 130 S.W.2d 265 (1939), which appeared to follow the rule established in Fountain. See Inn of Hills, Ltd. v. Schulgen & Kaiser, 723 S.W.2d 299, 301 (Tex. App. 1987). Other cases adopting the rule in Reynolds-Penland are still good law and are cited by Equitable. See, e.g., Western Tire, Inc. v. Skrede, 307 N.W.2d 558 (N.D. 1981) (lessee who failed to meet the requirements of the lease both as to the manner and the time period required for exercise of the option to renew was not entitled to equitable relief from forfeiture of the lease where failure to grant relief did not render the liberal enforcement of the renewal provision unconscionable, and where the landlord was prejudiced by having to accept inadequate rentals in comparison to what similar properties in the vicinity commanded). But see Fletcher v. Frisbee, 119 N.H. 555, 404 A.2d 1106 (1979) (that the landlord could have leased property more advantageously not always sufficient to defeat a lessee’s claim for equitable relief).
The issue thus becomes whether this court should allow Fleming to prevail even though it caused the harm about which it complains, or whether Fleming should be denied relief and forced to vacate the premises or pay a much higher rate of rent for failure to give proper notice to renew. Under both Fountain and Car-X, the characterization of Fleming’s conduct as negligent or mistaken is basically irrelevant. As long as its conduct was not intentional, willful, or grossly negligent, Fleming would prevail. Equitable might attempt to argue that failure to renew a lease of such value to the company would amount to gross negligence, but this is not supported by the facts of record.
Adoption of the Fountain rule, specifically limited to the type of situation involved in the present case, would not unduly render all lease contracts uncertain and their terms questionable,. Moreover, in light of all the factual considerations in this case, the balance seems to fall on Fleming’s side. Equitable made no significant change in reliance on the missed deadlines; it did not actively seek to lease or sell the property to a third party. Equitable most likely intended all along to simply allow the deadline for renewal to pass and then renegotiate with Fleming for a higher rental rate, armed with the club of termination of the lease and forfeiture of the very substantial improvements should Fleming refuse. Also, Equitable argues for the sanctity of contracts and the need for judicial respect of their bargained-for terms; yet it clearly wants to avoid the rental rate for the renewal period as expressed in the original contract between the parties. Equitable asked the district court in its counterclaim essentially to force Fleming to the table to renegotiate future rental payments.
The most salient facts leading to the conclusion that Fleming should be allowed eqfiitable intervention by the court are as follows:
1. The failure by Fleming to give notice has not been shown to be the result of intentional, willful, or grossly negligent behavior.
2. An apparent inequitable forfeiture will result if the court does not intervene. Fleming made substantial improvements in 1988 and 1989 worth $700,000, presumably with the intent of exercising the option and remaining on the premises, and had made even more substantial improvements in the past.
3. As a result of Fleming’s failure to give timely notice, Equitable did not change its position in any significant way and was arguably not prejudiced thereby.
To properly review this matter it is necessary to determine whether the district court erred in finding that time was not of the essence under the lease.
“The standard of appellate review of findings of fact has been stated numerous times by this court. The court must detéirmine if the findings are supported by substantial competént evidence and whether they are sufficient to support the trial court’s conclusions of law.” Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989). See State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 473, 799 P.2d 1043 (1990).
The language of the option provision itself does not expressly state that time is of the essence, nor does this language appear anywhere in the body of the lease.
In a situation involving an option to purchase real estate, “[t]he failure of the contract to make time of the essence of the agreement is of no consequence, because time is of the essence of such a contract in any event.” Anderson v. Ericson, 149 Kan. 270, 273, 87 P.2d 540 (1939). See also Loose v. Brubacher, 219 Kan. 727, 732, 549 P.2d 991 (1976) (“Time has been held to be of the essence in an option agreement whether or not so expressed.”). Both of the above cases deal with options to purchase real estate, but Equitable argues they would operate to imply that time is always of the essence in an option to renew a lease as well. No Kansas cases are on point.
In Fletcher v. Frisbee, 119 N.H. 555, 404 A.2d 1106 (1976), the court held that time is of the essence in option agreements, and that this rule is applicable to a lessee who wishes to exercise a lease-renewal option. However, the court stated that equity will give relief where the delay is slight, the lessor is not prejudiced, and literal enforcement of the provision would produce an unconscionable result for the lessee. 119 N.H. at 558-59. The court found in favor of the lessee, stating the only prejudice the lessor suffered was that it did not consider sale of the property until after receiving late notice of renewal. Any hardship to the lessor resulted from the tenant’s mere presence on the premises. 119 N.H. at 558.
Equitable states in its brief that the purpose of the one-year notice provision was to give Equitable ample time to find a new tenant should Fleming choose not to renew the lease. The facts disclose that Equitable took no action with regard to the property following November 30, 1989. The trial court held:
“Time is not of such essence that a 35-42 day omission (out of the approximately 10,950 days of the base lease and the 18,250 days of the potential total lease period available with renewals) cannot be equitably excused if the failure did not amount to intentional, willful, indifferent, or grossly negligent conduct or waiver and no prejudice from the delay is shown to have impacted the lessor.” (Emphasis in original.)
Equitable claims it has been prejudiced by the delay of Fleming in renewing the lease. “Because Fleming’s Lease rights would terminate absent renewal, Equitable’s rights in the option renewal provision would ripen into the right to terminate the Lease and market the property at present value. ’’ It is unclear how Fleming’s delay in renewing could have prejudiced or damaged Equitable when it took no steps following the missed deadlines to negotiate with any party for sale or lease of the property.
Where the lease expressly provides for the time when the renewal is to be made and the manner in which it is to be given, such provision controls. 51C C.J.S., Landlord & Tenant § 59. “[I] the absence of a waiver or of special circumstances warranting equitable relief, the right to the renewal is lost on failure to comply with the provision, regardless of the fact that the landlord may have suffered no damage by reason of the tenant’s delay.” 51C C.J.S., Landlord & Tenant § 59, pp. 185-86. Strict compliance with a provision fixing the time for renewal may be waived. See Wharf Restaurant, Inc. v. Port of Seattle, 24 Wash. App. 601, 605 P.2d 334 (1979).
Fleming argues that Equitable, by the course of its conduct, waived the requirement of timely notice to renew the option. Fleming points out that on several occasions over the life of the 30-year lease, Equitable accepted late payments and notifications from Fleming without objection, thus waiving any implied provision that time is of the essence. For example, in August 1960, Fleming was late in paying an installment of $4,000 on its commitment fee, but Equitable accepted it without objection. Also, in January 1961, Fleming was late in making a rent payment, but it was again accepted without objection. Fleming also1 points to the fact that Equitable has given Fleming advance notice several times of upcoming deadlines under the lease, such as when property taxes were coming due.
As stated by the trial court: “The evidence reflects ové'r the course of the years an attitude of mutual cooperation and assistance in fulfilling the lease conditions where mutual interest was involved such as expedited approval for addition construction plans, extensions where needed, and advisories as to taxes due.” However, the fact that the parties maintained an amicable busi ness relationship does not of itself constitute waiver of a specific date for exercising the option to renew the lease. It does not appear from the facts that Fleming’s failure to give timely notice was based on reliance of Equitable’s prior conduct during the lease term.
The trial court fully and ably analyzed the facts and law. In its comprehensive written opinion, the court states:
“This court finds that given recognition of an equitable interest in renewal by virtue of the character of the lease before the court, the slight delay, the obvious unconscionability that would attend the undesired abandonment of the lease by Fleming Companies, Inc., and the existence of absolutely no legal prejudice to the defendant Equitable Life Insurance Company of Iowa, that equity should intervene here as Fleming’s conduct in arriving at its omission of notice was not intentional, indifferent, willful, or grossly negligent.”
We agree.
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Briscoe, C.J.:
The Department of Revenue appeals, from the district court’s finding that Craig Musick’s prior uncounseled conviction of driving while under the influence could not be used as a basis for extending the period of his driver’s license suspension under K.S.A. 1989 Supp. 8-1014.
Musick was arrested for DUI on June 23, 1985, ánd entered into a diversion agreement on July 16, 1985. He was not represented by counsel when he entered into the diversion agreement. In determining whether the Depártment, will suspend or restrict an individual’s driving privileges for test .refusal, test failure, or alcohol or drug-related convictions, a diversion agreement entered into in lieu of further criminal proceedings on a DUI complaint is treated as a conviction. K.S.A. 1989 Supp. 8-1013(b)(2)(A).
On January 13, 1990, Musick was arrested for DUI and agreed to take a breath test. The test indicated his blood alcohol content was in excess of .10. In applying K.S.A. 1989 Supp. 8-1013 and 8-1014 to Musick’s driving record, the Department treated his prior diversion as a first occurrence and his test failure as a second occurrence, and suspended Musick’s license for one year, with the suspension to begin February 21, 1990.
After administrative review, Musick’s one-year suspension was upheld. Musick then sought judicial review with the district court. After a hearing on the matter, on September 4, 1990, the court held the prior uncounseled diversion could not be used to enhance Musick’s period of suspension, found the test failure was a first occurrence under 8-1014, and ordered that Musick’s period of suspension should be reduced accordingly. Musick’s license had been suspended from February 21, 1990, to September 4, 1990, a period of 195 days. As his license had already been suspended in excess of the 30-day suspension applicable to first occurrences, the court ordered immediate reinstatement of his driving privileges. The Department timely appealed.
On February 6, 1991, Musick pleaded nolo contendere in Topeka Municipal Court to the January 13, 1990, DUI charge. As a result of that conviction and pursuant to 8-1014(c)(l), Musick’s driving privileges were restricted from March 5, 1991, to August 11, 1991, a period of 159 days.
By this appeal, the Department seeks reinstatement of its order pursuant to 8-1014(b)(2), which suspended Musick’s license for one year. If the Department’s order is reinstated, Musick’s driver’s license will be suspended for an additional 170 days. Musick contends this appeal is moot because his license has been suspended or restricted for a period which exceeds the year’s suspension the Department seeks to impose. Musick combines the period his license was suspended with the period his license was restricted and argues this period exceeds one year.
Musick’s argument is both mathematically and legally incorrect. Musick combines the 195 days of suspension imposed pursuant to 8-1014(b)(2) (served from February 21, 1990, to September 4, 1990) with the 159 days of driving with a restricted license imposed pursuant to 8-1014(c)(l) (served from March 5, 1991, to August 11, 1991) to argue his license has been suspended or restricted for a one-year period. Both the suspension and the restriction resulted from the same DUI incident which occurred on January 13, 1990. Even if it were proper to combine the periods of suspension and restriction for this purpose, the combined periods do not add up to a year. Further, we interpret 8-1014(d) as treating suspensions differently from restrictions.
K.S.A. 1989 Supp. 8-1014(d) provides that combined periods of suspension cannot exceed the longest single period of suspension provided by 8-1014(a), (b), or (c), a period of one year. K.S.A. 1989 Supp. 8-1014(d) also makes separate provision for sanctions of suspension and restriction:
“If a person’s driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person’s driving privileges were suspended while awaiting any hearing or final order authorized by this act.
“If a person’s driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for 150 days of any period of suspension imposed for a test refusal arising from the same arrest.” (Emphasis added.)
In determining the period of restriction, 8-1014(d) does provide 150 days of credit against the statutory restriction period if a period of suspension has been imposed for a test refusal arising from the same arrest. However, the statute makes no provision for combining periods of restriction with suspension or for substituting one for the other when computing whether the period of suspension has been satisfied. Further, the statute does not forbid imposing a period of suspension for test failure and a period of restriction for conviction as a result of the same DUI. As courts must apply the natural and ordinary meaning of words when construing a statute (Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 [1988]), we conclude the issue presented by the Department is not moot because there remains a question of whether the Department may impose the balance of the year s suspension.
Musick also claims the Department acquiesced in the judgment by not relying upon the prior uncounseled conviction to enhance the period of restriction imposed as a result of his nolo contendere plea on February 6, 1991.
If a party acquiesces in a judgment, the right to have the judgment reviewed on appeal is terminated. To acquiesce sufficiently to terminate one’s right to appeal, one must voluntarily comply with the judgment in either assuming the burden or accepting the benefit of the judgment. Younger v. Mitchell, 245 Kan. 204, 206-07, 777 P.2d 789 (1989).
In February 1991, the Department received instructions from the Topeka Municipal Court to review Musick’s driving privileges in light of his municipal court criminal conviction for the July 1990 DUI. Musick’s license was restricted from March 5, 1991, through August 11, 1991. The Department treated Musick’s 1991 DUI conviction as his first occurrence rather than enhancing the sentence based on the 1985 diversion and. suspending his license for one year. K.S.A. 1989 Supp. 8-1013(e) mandates this result because the 1985 diversion occurred more than five years prior to the 1991 conviction. As the Department was státutbrily prohibited from counting the 1985 diversion as a first occurrence, it has not acquiesced in the district court’s 1990 ruling.
Having concluded the appeal is neither moot nor barred by acquiescence, we reach the issue presented by the Department. The Department contends the trial court erred in finding it could not use the 1985 uncounseled diversion as a basis for enhancing the driver’s license sanction imposed upon Musick as a result of his 1990 test failure.
To resolve this issue, we must interpret 8-1013 and 8-1014. Statutory interpretation is a question of law and, therefore, our appellate review of the court’s ruling is de novo. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
K.S.A. 1989 Supp. 8-1013 defines “occurrence” and provides a test to determine whether an occurrence is a first or second/ subsequent occurrence for purposes of enhancing the suspension period administratively imposed. K.S.A. 1989 Supp. 8-1014 sets forth the suspension periods applicable after each occurrence. K.S.A. 1989 Supp. 8-1013(b) provides in part:
“(2) For the purpose of determining whether an occurrence is a first, second or subsequent occurrence: (A) ‘Alcohol or drug-related conviction’ also includes entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging commission of a crime described in subsection (b)(1) [includes driving while under influence of alcohol or drugs in violation of K.S.A. 1989 Supp. 8-1567] which agreement was entered into during the immediately preceding five years, including prior to the effective date of this act; and (B) it is irrelevant whether an offense occurred before or after conviction or diversion for a previous offense.
“(e) ‘Occurrence’ means a test refusal, test failure or alcohol or drug-related conviction, or any combination thereof arising from one arrest, occurring in the immediately preceding five years, including prior to the effective day of this act.
“(h) ‘Test failure’ . . . refers to a person’s having results of a test . . . which show an alcohol concentration of . 10 or greater in the person’s blood or breath.”
K.S.A. 1989 Supp. 8-1Ó14 states in part:
“(b) Except, as provided by subsection (d),, if a person fails a test, the division shall, pursuant to K.S.A. 8-10Ó2, and amendments thereto:
“(1) On the person’s first occurrence, suspend the person’s driving privileges for 30 days, then restrict the person’s driving privileges . . . for an additional 60 days; and
“(2) on the person’s second or a subsequent occurrence, suspend .the person’s. driving privileges for one year. ”
Musick was arrested for DUI on June 23, 1985. He entered into a diversion agreement on July 16, 1985,. as an alternative. to criminal proceedings resulting from his arrest for.DUI. Four years and six months later, on January 13, 1990, he was again arrested for DUI and failed.-his blood alcohol content test. As regards the timing of the 1.985 diversion as it relates to the 1990 DUI, the 1990 test failure falls within the five-year period and qualifies as a second occurrence under 8-1014(b)(2). However,, .Musick’s prior occurrence, the 1985 diversion, ensued without benefit of legal counsel. Musick relies upon Baldasar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980), to argue that allowing the Department to use the 1985 uncounseled diversion .as a prior occurrence to enhance punishment for the 1990 test failure is a violation of his Sixth Amendment right tp counsel. We disagree.
In Baldasar, 446 U.S. at 228, the Court stated “a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute.” By its ruling, the Court in Baldosar held it was unconstitutional to consider a prior uncounseled misdemeanor conviction to elevate a subsequent misdemeanor conviction to a felony conviction with a prison term.
This court applied Baldosar in State v. Oehm, 9 Kan. App. 2d 399, 680 P.2d 309 (1984). Oehm was convicted of DUI and sentenced as a second offender under K.S.A. 1983 Supp. 8-1567. The prior conviction which served as grounds to enhance Oehm’s punishment as a second offender resulted from' a trial where Oehm represented himself and had not waived his right to counsel. This court held the imprisonment portion of the. sentence imposed under the second-offender enhancement could not be based upon the prior uncounseled conviction.
The holding of Oehm was extended in State v. Priest, 239 Kan. 681, 722 P.2d 576 (1986), which held that an uncounseled diversion could not be used as grounds for enhancing a criminal sentence. Although the State sought the enhanced punishment of imprisonment for Priest’s second DUI, the district court refused to enhance the punishment because the basis for the enhancement was the prior uncounseled diversion. The court affirmed, stating:
“[P]rior to entering into a diversion agreement, individuals charged with DUI must be given the opportunity to make a knowing waiver of their constitutional right to assistance of counsel. Where the defendant is without assistance of counsel and has not waived the right to assistance of counsel, the State cannot have the benefit of an uncounseled diversion agreement to enhance the sentence for a subsequent DUI conviction. The judge correctly determined that a sentence of imprisonment for DUI conviction may not be enhanced under K.S.A. 1985 Supp. 8-1567 where the record of the prior diversion agreement is silent as to whether the defendant either had or waived the right to assistance of counsel under the Sixth Amendment of the United States Constitution.” 239 Kan. at 685. (Emphasis added.) ,
Priest and Oehm concerned imprisonment based on uncounseled convictions. However, imprisonment is not an issue here. Both Priest and Oehm involved 8-1567, violation of which is a misdemeanor punishable by fines, public service commitments, and prison terms. These criminal qualities are not present in 8-1014. Therefore, neither case is dispositive.
The United States Supreme Court has stated that an uncounseled conviction is not per se invalid and may be used as a basis for imposing a civil disability, enforceable by criminal sanction. Lewis v. United States, 445 U.S. 55, 66-67, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980). Additionally, in State v. Boos, 232 Kan. 864, 659 P.2d 224, cert. denied 462 U.S. 1136 (1983), the court found that the “holding of Baldasar did not apply to the same extent in a civil proceeding to determine habitual violator status [K.S.A. 8-285] as it would in a direct attack on a criminal conviction.” State v. Whitehurst, 13 Kan. App. 2d 411, 415, 772 P.2d 1251 (1988), rev. denied 244 Kan. 740 (1989).
The statutes involved in both Boos and in Whitehurst are K.S.A. 8-284, 8-285, and 8-286. This family of statutes, commonly known as the habitual violator statutes, seeks to discourage repetition of motor vehicle law violations by reducing a repeat offender’s accessibility to the state’s roads. K.S.A. 8-284. These statutes allow the prosecutor to file a petition alleging a person is a habitual violator if that person is convicted of three DUI’s within five years. K.S.A. 8-285, 8-286. If the accused is found guilty of being a habitual violator, the court will order the accused not to drive within the state. K.S.A. 8-286.
In both Boos and Whitehurst, the habitual violator statutes were found to be civil rather than criminal in nature. The statutes acquire their civil status because they do “not create a new crime but rather [provide] for a determination of a driver’s status.” Whitehurst, 13 Kan. App. 2d at 414. Revocation of a driver’s license “does not make the habitual violator status a crime .... [N]o criminal sanctions are imposed upon this status determination.” Whitehurst, 13 Kan. App. 2d at 414. Because of the civil nature of the habitual violator statutes, the Supreme Court in Boos, 232 Kan. at 872, and this court in Whitehurst, 13 Kan. App. 2d at 416, held that labeling someone with the status of habitual violator by using prior uncounseled convictions is not a violation of that person’s Sixth Amendment rights to counsel.
Another statute in the habitual violator family is K.S.A. 8-287, which states that after being labeled a habitual violator pursuant to 8-286, if a person drives within the state, that person will be guilty of a class E felony. State v. Weber, 13 Kan. App. 2d 571, 775 P.2d 679 (1989), addressed the constitutionality of 8-287 when one of the underlying convictions which led to the labeling as a habitual violator was uncounseled. The Weber court distinguished Baldasar and Priest and stated that, pursuant to Boos, an uncounseled conviction can support the label of habitual violator, which is a civil disability affecting a person’s driving privileges. Once a person has been labeled a habitual violator, if he or she violates 8-286 and drives, 8-287 merely imposes criminal sanctions for that subsequent act of driving.
Boos, Whitehurst, and Weber are not wholly dispositive of the issue before us because 8-1014 is not identical to the habitual violator statutes. K.S.A. 8-286 is triggered after three driving-related convictions. It provides for a hearing and, after the person is positively identified as the person who is alleged to be a habitual violator, the person is determined to be a habitual violator and his or her driver’s license is suspended. K.S.A. 1989 Supp. 8- 1014, however,, is triggered by. each act which gives rise to the potential of a subsequent conviction. These acts, called “occurrences” within the statute, include test refusal, test failure, alcohol or drugvrelated conviction, or any combination thereof arising from one arrest. Once a person has engaged in such an act, the length of driving disability imposed by 8-1014 depends upon whether the person has a record of any such prior acts.
K.S.A. 1989 Supp. 8-1014 imposes a self-enhanced sanction. The question posed here is whether 8-1014 is more analogous to a civil proceeding under 8-286, potentially resulting in a suspension of driver’s license, or whether it is more analogous to a criminal proceeding, potentially resulting in a criminal conviction.
K.S.A. 21-3105 defines a crime as “an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized .... Crimes are classified as felonies, misdemeanors and traffic infractions.” K.S.A. 1989 Supp. 8-1014 does not impose fines or prison sentences and its violation is not a felony or a misdemeanor. We conclude a proceeding under K.S.A. 1989 Supp. 8-1014, which provides for loss of driving privileges upon a finding that specified acts were committed within a specified period of time, is a civil proceeding.
Musick argues 8-1014 has become part of the sentencing statute for DUI convictions and is therefore criminal in nature. However, 8-1014 can be used by the Department in an administrative proceeding without order of a criminal court.
Musick argues that 8-1014 is a habitual punishment enhancement statute. While it is true the statute does enhance periods of suspension and restriction for drivers with prior convictions, the issue is what is being enhanced. In this case, the Department is not enhancing criminal punishment but rather civil penalties.
K.S.A. 1989 Supp. 8-1014 is more analogous to the civil proceeding of declaring someone a habitual violator and revoking that person’s license rather than to a criminal statute which labels a crime a misdemeanor or a felony and delineates fines and prison sentences. Since the Department is imposing a civil disability, Musick’s Sixth Amendment right to counsel is not violated by the Department’s reliance upon a prior uncounseled conviction of DUI as a basis for extending the period of driver’s license suspension:
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PlERRON, J.:
Commerce Bank of Kansas City (plaintiff), a judgment creditor of Melvin W. Odell and Gloria J. Odell (defendants), is seeking to execute on 240 acres of land owned by the defendants. Each defendant claims a 120-acre homestead, causing all of the jointly owned property to be exempt from execution. The question presented is whether the 240 acres can be subject to a 120-acre homestead for each defendant, or whether, in fact, there is only one homestead exemption of 160 acres which the defendants must share.
The defendants were divorced on May 23, 1984. They have not remarried and remain single persons. Commerce Bank issued an unsecured credit card to defendants prior to their acquisition of the real property in question. The defendants acquired fee simple title to the real property by joint tenancy warranty deed dated September 4, 1987. The deed is issued to “MELVIN W. ODELL and GLORIA J. ODELL, his wife; as JOINT TENANTS and not as tenants in common.” On October 7, 1987, the defendants granted an easement conveyance to Kansas City Power and Light as “Melvin W. O’Dell and Gloria J. O’Dell, husband and wife.” On June 2, 1989, the defendants mortgaged the property to Citizens Bank and Trust of Kansas City as “Melvin W. Odell and Gloria J. Odell, his wife.” Despite these conveyances as husband and wife, no evidence indicates that the defendants have remarried; they contend that they have not remarried and that they remain single persons.
The plaintiff has received a judgment against the defendants for debt arising from use of an unsecured consumer credit card. The judgment is for $15,015.99 plus interest from April 4, 1990. It is undisputed that judgment for Commerce Bank was obtained after defendants acquired the subject real property. The subject real property is farming land which is located outside of the city limits. The plaintiff attempted to execute against defendants’ real property.
In response to the notice of sale, each defendant filed a designation of homestead. The defendants jointly own the 240 acres and each claims his or her one-half interest, 120 acres, as. his or her homestead. Each defendant filed his or her homestead designation pursuant to K.S.A. 60-2302 and as a single person. Each defendant claims that he or she owns an undivided one-half interest of farming land and he or she resides on the same as his or her residence and homestead. The 120-acre homestead claimed by each defendant is within the statutory allowable limit of 160 acres for a homestead. K.S.A. 1991 Supp. 60-2301. Claiming that all of their real estate is subject to homestead exemptions, the defendants moved to quash the plaintiffs writ of execution and order of sale.
The trial court found that the “Defendants received title as joint tenants with right of survivorship and have continually held themselves out by conveyances of interest in said real estate as joint tenants and husband and wife.” The trial court also found that “[t]o now find that Defendants are tenants in common in order to defeat a Writ of Execution would be tantamount to permitting Defendants to use fraud to enhance their exemption; and . . . Defendants are entitled to a 160 acre exemption.”
The trial court denied the defendants’ motion to quash the writ of execution and order of sale and designated only 160 acres of the subject 240 acres as subject to the homestead exemption. Under the trial court’s order, 80 acres of the defendants’ land is now subject to sale. The defendants have timely appealed.
The issue on appeal is whether two defendants, who jointly own a 240-acre parcel of land, are entitled to a separate homestead exemption of up to 160 acres each under K.S.A. 1991 Supp. 60-2301 or whether they are only entitled to each declare an 80-acre exemption or to declare a one-half joint interest in a 160-acre exemption.
The trial court’s decision that the defendants together were only entitled to one 160-acre homestead was a conclusion of law. “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).
While both the plaintiff and the trial court agree that the defendants should be treated as a married couple, this is not possible. The required elements of a common-law marriage are as follows: “(1) capacity of the parties to marry; (2) present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.” In re Estate of Hendrickson, 248 Kan. 72, Syl. ¶ 1, 805 P.2d 20 (1991). Although two of the three elements may exist in this case, no precedent exists for a judicial declaration of marriage in spite of the parties’ lack of intent or agreement to be married. And since the plaintiff does not contend that the 1984 divorce decree is invalid, this court will proceed in determining if two single people who jointly own real property can each declare the full homestead exemption allowed by law.
The Kansas right to claim a homestead exemption is constitutional in nature. See Kan. Const. art. 15, § 9. The statute currently implementing this constitutional right is K.S.A. 1991 Supp. 60-2301. It reads as follows:
“Homestead; extent of exemption. A homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, or a manufactured home or mobile home, occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists.”
The purpose of the Kansas homestead exemption has been clearly established and repeated in numerous cases. The exemption benefits the family and society by protecting a family from “destitution and society from the danger of her citizens becoming paupers.” State, ex rel. v. Mitchell, 194 Kan. 463, 465, 399 P.2d 556 (1965) (quoting Morris v. Ward, 5 Kan. 239, 244 [1869]). Because the purpose is clearly to protect the family and society from the hardships which occur when a family loses its home, the homestead law has been construed to not allow any liens to attach to the homestead other than those specified in the constitution. Those include liens for taxes and liens arising from obligations contracted for either the purchase or improvement of the homestead. Mitchell, 194 Kan. at 465.
In continuing this zealous protection of family rights and homestead property, Kansas has liberally interpreted the homestead provision to safeguard its “humanitarian and soundly social and economic purposes.” Mitchell, 194 Kan. at 466. In line with that construction of the homestead provision, Kansas courts have found that co-owners as tenants in common can establish homesteads as to their creditors upon their separable interest or title. Banner v. Welch, 115 Kan. 868, 871, 225 Pac. 98 (1924). Kansas has also found that in order to establish a homestead, a husband and wife need not have full title to the real property.
“A homestead right of occupancy may be established upon a cotenancy title, an equitable title, or an executory contract to purchase, a leasehold estate, or an estate for life, as against almost any class of claimants except cotenants. Also it may be noted that we are not holding herein that claimants, in other classes, can assert that property is owned by cotenants for the purpose of resisting homestead rights.” Cole v. Coons, 162 Kan. 624, 633, 178 P.2d 997 (1947).
Against this background of homestead law this court must decide if each cotenant is entitled to the full homestead exemption of 160 acres or if they must share one homestead exemption of 160 acres.
A 1942 Supreme Court case would seem to answer this question rather directly. In Nelson v. Stocking, 154 Kan. 676, 121 P.2d 215 (1942), the court ruled that the plaintiff, Nelson, who had a one-fourth interest in 281 acres of land, was entitled only to a one-fourth interest in the 160-acre homestead exemption and that the remainder of his one-fourth interest in the 281 acres was subject to the claims of creditors. Nelson had contended that his homestead right extended to his one-fourth interest in the 281 acres. One-fourth of 281 is 70.25 acres. Nelson argued that he was entitled to have 70.25 acres set off to him and that such land was exempt from creditors because it was his homestead. Nelson urged the appellate court to find that the trial court had erred in allowing his homestead to consist of only a one-fourth interest in 160 acres. The court said:
“The narrow question presented is whether the homestead exemption of appellant is coextensive with his interest in the entire tract, or extends only to his interest in 160 acres. While the question appears to be one of first impression in this state, it has been before the courts in other jurisdictions.
“In 29 C.J. 849, it is stated:
‘In some states, where a tenant in common is entitled to a homestead, and the entire property exceeds in quantity the statutory limit as to the number of acres, his right of homestead extends to an undivided interest of the statutory number of acres out of the interest owned. In other states this rule is not recognized, but it is held that if the entire property exceeds the number of acres allowed by statute as exempt, although the interest of the debtor would be less if set apart, he can claim as exempt only land occupied by him not exceeding the number of acres and value fixed by the statutes, to be allowed to him just as if he owned the entire tract.’ ” Nelson, 154 Kan. at 677.
The court did not explain its rationale in depth, but it does seem to focus on the language of the statute. Examining G.S. 1935, 60-3501, the court found that a homestead was allowed “to the extent of one hundred and sixty acres of farming land.” 154 Kan. at 677-78. The court said:
“We think the answer to the question submitted is found in the express language of the statute above quoted. As the homestead exemption is allowed ‘to the extent’ of 160 acres, it cannot, without disregarding the plain words of the statute, be extended to embrace 281 acres. Decisions from other states based upon the language of local statutes are not particularly helpful. The court is of the opinion that under the specific language of our statute the exemption allowed is limited to 160 acres.” Nelson, 154 Kan, at 678.
Ingenious and industrious counsel for the defendants would distinguish Nelson by suggesting that there are three material differences between that case and the case at bar: First, Nelson was a partition action which cannot be resisted on the basis of a claimed homestead exemption. Second, the claimed exemption of the debtor in Nelson would have been in derogation to the rights of the other cotenants in the partition action. Third, the homestead exemption has been amended to expand the exemption from male family heads to include any person.
None of the distinctions are material. Nelson was decided on the basis of “the plain words of the statute” which limited the homestead exemption to 160 acres whether or not there were more than 160 acres in issue. There is nothing in Nelson to indicate that the rule will be different in a non-partition action. Neither was there any discussion of the derogation of the rights of cotenants in the decision as a basis for the holding. Finally, we note that the amendment expanding the class of people allowed to claim the exemption did not expand the amount of land that could be claimed thereunder.
While the court in Nelson could have interpreted the statute as suggested by defendants, it did not. Modification of this 50-year-old precedent, if appropriate, must come from the Supreme Court or the legislature.
Although the trial court was incorrect in finding that the defendants could only claim a 160-acre homestead as a husband and wife, it was correct in finding that a 160-acre exemption was all that could be claimed by the owners.
“The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).
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Rees, J.:
This is a trust administration proceeding in which the two challenged trial court rulings are incident to the ordered distribution of the Lester R. McDonald Trust corpus upon termination of the trust according to its terms.
The trust is a testamentary trust. The settlor was Lester R. McDonald, who died testate on February 14, 1984. The trustee is respondent Charles E. McDonald. The trust beneficiaries, six in number, are Veda McDonald, Vadon McDonald, petitioner Lena Mae McDonald, petitioner Joyce E. Hedden, petitioner Jeanette Mae Taton, and respondent Charles E. McDonald, Lena’s son.
The questions before us relate to Lena’s $38,258.71 distributive share of the trust corpus.
On May 30, 1990, Charles, in his capacity as trustee, undertook distribution of the $38,258.71 to Lena. He wrote one check, payable to Lena’s order, in the amount of $11,286.48. It was drawn against the trust account. He also wrote a second check, payable to Lena’s order, in the amount of $26,972.23. It, too, was drawn against the trust account. The first check ultimately was delivered to Lena. The second check was. not delivered to Lena. Charles endorsed Lena’s name to the second check and deposited it to his personal checking account after placing his name on the check as a second endorser.
• In view of our analysis and disposition of this appeal, we need not address Charles’ trial evidence tending to establish authorization for his endorsement of Lena’s name on the second check and to establish his entitlement to $26,972.23 according to a previous agreement and course of dealing with Lena.
The first of petitioners’ two complaints is that the trial court erred in not imposing the penalty for conversion directed by K.S.A. 59-1704. That statute provides that “[i]f any person embezzles or converts to his or her own use any of the personal property of a decedent or conservatee, such person shall be liable for double the value of the property so embezzled or converted.” (Emphasis added.)
The trial court accepted Charles’ tendered return of the $26,972.23 realized by him by his deposit of the check to Lena in that amount but declined to order payment by Charles of an additional $26,972.23 pursuant to K.S.A. 59-1704. The triál court reasoned that the funds represented by Charles’ $26,972.23. trusteeship check to Lena and deposited by him to his personal account was not “personal property of a decedent.” We agree.
Upon the closing of Lester’s probate administration case (Case No. 84-P-16), as memorialized by the journal entry of final settlement filed May 27, 1987, the probate estate assets remaining after distributions and payments necessary to satisfy Lester’s specific devises and bequests, taxes, and probate estate administration costs and expenses were distributed and transferred to the “Lester R. McDonald Trust, Charles E. McDonald, Trustee.” That transfer operated to pass legal title in and to the residuary probate estate assets to Charles as the. trustee of the Lester R. McDonald Trust and to pass all beneficial interest in and to those assets to the designated six trus,t beneficiaries. The t residuary assets became the trust corpus and the decedent, Lester, by his legal representative, the probate estate executor, was divested of all right and title in and to those assets.
Prior to legislative change in 1939 (L. 1939, ch. 180, § 134), when the now-pertinent provisions of K. S.A. 59-1704 were enacted, G.S. 1935, 22-912 had provided that:
“If any executor or administrator shall neglect to sell any portion of the personal property which he is bound by law to sell, and retains, consumes or disposes of the same for his own benefit, he shall be charged therewith at double the value affixed thereto by the appraisers.”
Thus, the earlier statutory double liability for conversion provision .was, on its face, applicable to executors and administrators. In contrast, K.S.A. 59-1704 directs the imposition of double liability upon “any person” who has engaged in the conduct proscribed, that is, conversion of “personal property of a decedent or conservatee.”
By operation of his tendered return of the $26,972.23 and his failure to appeal, Charles concedes he converted those funds.
Plainly, Charles is an “any person” and, again, the question at hand is whether his conversion of the $26,972.23 represented by the second trusteeship check to Lena was conversion of “personal property of a decedent.”
It is said in In re Estate of Engels, 10 Kan. App. 2d 103, 108, 692 P.2d 400 (1984), that “[u]nder the provisions of 59-1704, once a conversion by a fiduciary is found, the fiduciary ‘shall be liable’ for double the amount converted. The legislature’s use of the word ‘shall’ indicates to us that the penalty is mandatory.” Thus, Engels teaches that the purpose of the statute is to punish a person who converts personal property of a decedent and to warn others such conduct is improper. 10 Kan. App. 2d at 108.
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. National Cooperative Refinery Ass’n v. Board of McPherson County Comm’rs, 228 Kan. 595, 597, 618 P.2d 1176 (1980). In National Cooperative, tax statutes were examined and construed most favorably to the taxpayer. The Supreme Court stated:
“Penal statutes must be statutorily construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.” 228 Kan. at 597.
We conclude that the same principle applies to K.S.A. 59-1704, a penalty statute. We are not free to expand the scope of K.S.A. 59-1704 to include trust funds when the statutory language explicitly refers to “personal property of a decedent.”
Lester’s probate estate and the trust corpus were two separate legal “entities.”
We find the trial court correctly held that K.S.A. 59-1704 was not applicable in this case. We need not decide whether the converted $26,972.23 (a part of Lena’s distributive share of the trust corpus) was Lena’s property or was trust property. Our conclusion is that it was not personal property of a decedent; it was not Lester’s property.
Petitioners’ second complaint is that the trial court abused its discretion in awarding only $5,000 for attorney fees and $686.89 for expenses when their incurred attorney fees were $23,102.50 and their incurred expenses were $1,379.30. We are not persuaded that the trial court abused its discretion in arriving at the amount of its award for attorney fees and expenses.
We pause to note that the award of attorney fees and expenses apparently was made on the authority of K.S.A. 59-1703. We do not comment on the availability of an attorney fees and expenses award in this case under K.S.A. 59-1703 inasmuch as Charles has not raised the question. The sole question raised is whether the amount of the award made was the product of abuse of discretion by the trial court.
The amount of attorney fees to be awarded is a matter largely within the trial court’s discretion and will be overturned only upon a showing of abuse of discretion. Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 401, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988). The factors a trial court should consider in determining the amount of reasonable attorney fees are:
“ ‘the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance of the services; the professional character and standing of the attorney and the results secured.’ ” 12 Kan. App. 2d at 401-02.
The trial court stated in its order in this case that the issues raised were relatively simple due to Charles’ trial admission of forgery. The trial court also noted that Charles offered to repay the $26,972.23, together with $500 attorney fees, upon receipt of the petition filed on July 6, 1990. After reviewing the time sheets prepared by the petitioners’ attorneys, the trial court found that the attorneys had spent excessive time in trial preparation in light of the issues necessarily to be tried and with consideration being given to the fact that Lena’s distributive share of the trust corpus was $38,258.71.
We conclude that the petitioners have not met their burden to affirmatively establish trial error. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982).
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Rulon, J.:
Noel Hicks, defendant, an Oklahoma resident, challenges the jurisdiction of a Kansas district court to require him to appear for a hearing in aid of execution and to bring to that hearing nonexempt property located in Oklahoma. We affirm in part and reverse in part.
The parties submitted this action to the district court for trial on an agreed statement of facts approved by the court. A brief summary of the agreed facts follows.
Defendant contracted to purchase goods and services from the plaintiff, Elkhart Cooperative Equity Exchange, a cooperative as sociation authorized to do business in Kansas. On March 20, 1990, plaintiff sued defendant in Morton County District Court for $20,213.60 that defendant owed on an open account. Defendant filed an answer and a confession of judgment on May 16, 1990, which stated that the defendant “ ‘subjects himself to the personal jurisdiction of the Court.’ ” On December 5, 1990, the district court entered judgment for plaintiff based on the pleadings. Soon thereafter, plaintiff filed an application for examination of the judgment debtor, claiming plaintiff was without sufficient knowledge of defendant’s assets in order to execute its judgment.
On December 17, 1990, the district court ordered defendant to appear and answer on January 25, 1991, as to his assets. A copy of the application and notice of the hearing were sent by certified mail to defendant in Oklahoma. The hearing was continued until February 5, 1991, because defendant asked for additional time to gather the information and documents the plaintiff requested for the examination. However, the defendant failed to appear before the district court on February 5, 1991, and the court ordered defendant to show cause why he should not be found in contempt. On February 19, 1991, defendant personally appeared in court, for the first time with an attorney, and objected to the jurisdiction of a Kansas district court to order a nonresident to appear with certain nonexempt property for a hearing in aid of execution when the order was served by certified mail on the nonresident in another state.
The district court essentially reached the following conclusions:
(1) The defendant had voluntarily submitted to personal jurisdiction according to the terms of his answer to the plaintiff s petition;
(2) service of the order to appear under K.S.A. 1990 Supp. 60-2419 by certified mail was sufficient to provide notice of the nature of the action and time and place to appear; and (3) the defendant should surrender to Kansas officials certain nonexempt property (or documents of title to said property) located in Oklahoma.
ORDER TO APPEAR
Defendant contends that a Kansas court does not have jurisdiction over an Oklahoma resident for the purpose of supplementary proceedings to collect a debt he owes to a Kansas plaintiff. Specifically, the defendant admits he voluntarily sub mitted to personal jurisdiction in the underlying action, but when the plaintiff took steps to collect the judgment, the defendant claimed the court had no authority to order him to appear in Kansas for a hearing in aid of execution, pursuant to K.S.A. 1990 Supp. 60-2419.
Kansas has not directly addressed the question of whether a court retains personal jurisdiction over a nonresident to order him to appear for a debtor’s examination. Case law in other jurisdictions, discussing statutes similar to K.S.A. 1990 Supp. 60-2419, hinges on whether the courts treat a debtor’s examination as supplemental, auxiliary to, and part of the underlying action, or as a separate and independent proceeding. See Sechtem and Niceswanger, Bringing the Nonresident Judgment Debtor Back to Kansas, 59 J.K.B.A. 25, 26-27 (1990).
“The majority of courts which have addressed this issue hold that a debtor’s examination, like all proceedings supplemental to an execution, is auxiliary to and a continuation of the original cause.” 59 J.K.B.A. at 27. See, e.g., American State Bank of Dickinson v. Stoltz, 345 N.W.2d 365, 367 (N.D. 1984) (proceeding in aid of execution is not a new, separate action, but merely a proceeding in pending action against judgment debtor). A minority of courts view the debtor’s examination as a separate statutory action that is no part of the underlying action. “In those states that treat a debtor’s examination as a new and independent action, the trial court must reestablish its personal jurisdiction over the judgment debtor before the debtor’s examination will be approved.” 59 J.K.B.A. at 27.
Although no Kansas cases specifically address this issue, previous case law indicates to us that we should adopt the majority view that a debtor’s examination hearing is a continuation of the original cause of action. In In re Morris, 39 Kan. 28, 18 Pac. 171 (1888), our Supreme Court held that once a trial court obtains jurisdiction over a case and the parties, such jurisdiction continues until the judgment is fully satisfied. 39 Kan. at 30. Moreover, in Teats v. Bank, 58 Kan. 721, 724, 51 Pac. 219 (1897), the Supreme Court held that the trial court was authorized to order a Kansas judgment debtor, who had moved to another county, to appear for a debtor’s examination. “[T]he court had full jurisdiction to make the examination which was made, and it was the clear duty of the defendant to appear and submit to such examination. By leaving the county, [the debtor] certainly did not deprive the court of jurisdiction over her.” 58 Kan. at 724.
K.S.A. 1990 Supp. 60-2419 specifically addresses nonresident debtors, indicating that the legislature contemplated that nonresident debtors could be brought into this state for further proceedings:
“When an execution against the judgment debtor or one of several debtors in the same judgment issued to the sheriff of the county where the debtor resides or, if the debtor does not reside in the state, to the sheriff of the county where judgment was rendered or a transcript of the judgment has been filed, is returned unsatisfied in whole or in part, the judgment creditor is entitled to have an order for a hearing in aid of execution by the district court of the county to which the execution was issued. If a judgment creditor, without having attempted execution, alleges that the judgment creditor is without sufficient knowledge of the debtor’s assets to advise the sheriff where and on what to levy execution, the judgment creditor shall be entitled to have an order for a hearing in aid of execution by the district court of the county where the debtor resides and a transcript of the judgment has been filed or, if the debtor does not reside in the state, where judgment was rendered or a transcript of the judgment has been filed.” (Emphasis added.)
The statute further states that “[i]f, on proper application by the judgment creditor, the court finds that it will not cause undue hardship on the judgment debtor, the court may order a debtor residing in another county in this state to appear before the court for such a hearing.” K.S.A. 1990 Supp. 60-2419. Defendant claims that a nonresident of the state should be afforded the same consideration, although this is not addressed by the statute. However, the defendant made no' objection to the application. He requested more time to prepare for the hearing, which was granted. The defendant made no showing that coming into Kansas for the hearing would cause him “undue hardship”; we believe his argument is without merit.
We conclude a hearing in aid of execution of a judgment is not a new and separate proceeding, but merely a continuation of the underlying action. We are convinced that forcing a judgment creditor to reestablish jurisdiction over the judgment debtor before the debtor’s examination would accomplish nothing and waste valuable judicial resources. Further, the defendant here was clearly advised of the pendency of the action when he entered an appearance in the lawsuit and judgment was entered against him.
Defendant argues that service of the order to appear for the examination by certified mail to his residence in Oklahoma was improper. Unquestionably, the defendant does not dispute that he received notice of the hearing after the application was made by the plaintiff.
K.S.A. 1990 Supp. 60-2419 is silent on the method of service for the order to appear for a hearing in aid of execution. According to K.S.A. 1990 Supp. 60-205(a) and (b), orders are to be served on parties and can be mailed to a party at the last known address. K.S.A. 1990 Supp. 60-2419 requires the order to contain “a time and place” for the hearing, and also to state that the judgment debtor must “appear and answer concerning the debtor’s property and income.” Here, the district court held that the order mailed to the defendant was sufficient to put him on notice for the time and place of the hearing. After a party submits to the personal jurisdiction of a district court, service of an order to appear for a hearing in aid of execution by certified mail is proper. K.S.A. 60-102 specifically provides that “[t]he provisions of [the rules of civil procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding. ”
ORDER TO DELIVER PROPERTY
Defendant argues that a state has no power to reach property beyond its borders, and that he cannot be required to bring property located out of state before the Kansas court to surrender for the sheriff for satisfaction of the judgment. Under the particular facts of this case, we agree.
Recent case law in other jurisdictions limits judgment creditors to obtaining property located in the situs jurisdiction. In Chadwin v. Krouse, 254 Pa. Super. 445, 386 A. 2d 33 (1978), the court refused to force the judgment debtor to deliver to the sheriff stock certificates which had a situs in another state prior to the institution of proceedings for supplementary relief in aid of execution. 254 Pa. Super, at 451. See also Gavilanes v. Matavosian, 123 Misc. 2d 868, 871, 475 N.Y.S.2d 987 (1984) (examination in aid of attachment must be limited to property within the jurisdiction). However, in Wilson v. Casualty Co., 118 Ohio St. 319, 327, 160 N.E. 906 (1928), the court allowed the judgement creditor to reach out-of-state funds where the debtor had sent the funds outside the s.tate to avoid collection. In our case, there is no evidence that the defendant removed property from Kansas to Oklahoma to avoid having the funds used to satisfy the plaintiffs judgment.
We have not left the plaintiff without a remedy. Kansas has adopted the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq. The State of Oklahoma has adopted the Uniform Foreign Money Judgments Recognition Act, Okla. Stat. tit. 12, §§ 710 et seq. (1981), and it has adopted the Uniform Enforcement of Foreign Judgments Act, Okla. Stat. tit. 12, §§ 720 et seq. (1981). The plaintiff can file the Kansas judgment in the state of Oklahoma and utilize the postjudgment collection procedures available in that state.
The district court’s order directing the defendant to surrender property located in Oklahoma to a Kansas sheriff is reversed, and this case is remanded with directions to vacate such order.
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Lewis, J.:
This appeal is from the defendant’s jury convictions of two counts of aggravated robbery. In addition to being convicted of aggravated robbery, the defendant pled nolo contendere to. one count of robbery and one count of attempted robbery. As a result of these convictions, the defendant was sentenced to a controlling term of 12 to 42V2 years of incarceration.
The defendant raises several issues on appeal. The majority of these issues deal with whether aggravated robbery can be committed with a “toy gun” and with certain evidentiary issues related to that toy gun. The defendant also argues that, based on the recommendation of SRDC, the trial court erred in refusing to modify his sentence. After review, we affirm in part, reverse in part, and remand.
On the evening of October 11 and early morning hours of October 12, 1989, the defendant robbed a Kwik Shop in Wichita on two different occasions. These activities by the defendant are the bases of his convictions of aggravated robbery.
The evening’s events began at approximately 11:30 p.m. on October 11, 1989. At that time, the defendant entered a Kwik Shop in Wichita, walked up to the counter, and told a clerk to hand over the money. In the process of committing the robbery, the defendant pulled up his shirt to reveal what appeared to be the butt of a gun in his pants. The defendant asked the two clerks in the shop if they valued their lives and instructed them to give him all of their $20 bills. One of the clerks advised the defendant that he had no $20 bills, whereupon the defendant stated that it did not matter, he would take any bills they had. Accordingly, the clerk put the money in a paper sack, and the defendant took the money and ran.
The defendant was apparently satisfied with the service he received, because he returned to the same Kwik Shop approximately four hours later. On this occasion, one of the clerks from the earlier robbery was on the telephone when the defendant entered, and he immediately recognized the defendant from his earlier visit. The clerk promptly told his telephone companion to call the police. The defendant walked into the store, picked up a bag of chips and a case of beer, and put the items on the counter. The clerk then told the defendant that it was after hours, and he could not sell him any beer. The defendant, however, was not interested in buying anything. He again pulled up his shirt, revealing the butt of a gun he had placed under the waistband of his pants. While revealing that weapon, he told the clerk, “I don’t give a damn about the beer, I want the money that’s in the drawer, I’ll blow your nuts off.” Whereupon, the clerk gave the defendant what money he had left, and the defendant again took the money and left the store.
Within 15 minutes, the defendant was back in the Kwik Shop on a third occasion, although this time he was in the custody of the Wichita Police Department. The clerk promptly identified the defendant as the individual who had robbed him, and the defendant was then arrested and incarcerated.
The “gun” under the defendant’s belt was, in fact, only a toy. It was a plastic water pistol that was designed to resemble a “Lug;er” handgun. We have examined the water pistol in question and find that it does resemble an authentic handgun.
During the course of the two robberies, the defendant did not remove the “gun” from his pants nor wave it around or point it at any occupant of the store. The defendant testified at trial that he did not remove the “gun” from his pants because he wanted his victims to believe that it was a real gun, as he felt such a belief would enhance the chances of a successful robbery.
The two victims testified that they did not know if the “gun” was real or not. One stated that he was “under the impression that [the defendant] had a weapon and he was intending to rob the store.” The witness further testified, “I was gonna do as I was told to do.” The other victim testified, “I was quite scared. I realized it was a robbery. I was fearful.”
During the trial, the State conceded that it could not produce the toy gun in question. It developed that the evidence locker at the police station had had a roof collapse during a storm and the gun could not be found. The defendant moved for a mistrial, which was denied. The State moved to amend the information from using the words “while armed with a dangerous weapon, to wit: a handgun,” to read, “while armed with a dangerous weapon, to wit: A toy gun.” A stipulation was then read to the jury that the “gun” used during the robbery was a “black plastic water pistol.”
After the defendant was convicted, the toy gun was, in fact, found at the police station among the defendant’s personal belongings. Upon finding the gun, the defendant filed a motion for a new trial on the grounds of newly discovered evidence. This motion was denied.
The defendant’s convictions of robbery and attempted robbery come from occurrences which took place after he was arrested and released on bond for the aggravated robberies discussed above. This defendant apparently favors Kwik Shops because, while out on bond awaiting trial, he robbed and attempted to rob a different Kwik Shop. On one occasion, he entered a Kwik Shop and demanded that he be given money from the cash register. The clerk obeyed and gave the defendant the money. On the second occasion, he chose a Coastal Mart, which he entered and demanded money. The Coastal Mart clerks, however, only gave him two packs of cigarettes.
We now turn to the issues raised by the defendant on this appeal.
MAY THE CRIME OF AGGRAVATED ROBBERY BE COMMITTED WITH THE USE OF A TOY GUN?
The defendant raises two issues which will be discussed under this heading. During the trial, the defendant moved for acquittal. After his convictions, he filed a motion for arrest of judgment. He contends, in both instances, that the trial court erred in denying these motions because a toy gun does not meet the definition of a ■dangerous weapon. The defendant argues that, when the State amended the information to read “while armed with a dangerous weapon, to wit: A toy gun,” the information no longer charged a crime since a toy gun is not a dangerous weapon.
The defendant also argues that the trial court erred in instructing the jury on the definition of a dangerous weapon.
Both of these contentions turn on whether a toy water pistol, such as. that in the possession of the defendant at the time of the robberies, can be considered a dangerous weapon in the State of Kansas. We have reviewed the law and conclude that the question proposed must be answered in the affirmative.
There have been no cases in Kansas dealing with whether a toy water pistol can be considered a dangerous weapon. However, our Supreme Court has laid the groundwork for a conclusion that a toy weapon may be determined to be a dangerous weapon under our aggravated robbery statute.
The courts in the United States which have considered this issue have roughly divided themselves into two groups. One set of decisions uses an objective method to answer the question while others use a subjective method.
The objective test depends upon whether the object used in accomplishing the robbery was capable of inflicting serious or deadly harm upon another person. If it cannot do so, it is not considered to be a dangerous or deadly weapon in states utilizing the objective test. An example is State v. Luckey, 69 Ohio Op. 2d 111, 322 N.E.2d 354 (Ct. App. 1974), 81 A.L.R.3d 995. In that case, the Ohio court employed an objective test in holding that a .22 caliber blank starter pistol was not a dangerous weapon and would not support the defendant’s conviction of a charge of armed robbery.
The subjective test depends on the intent of the robber and the reasonable belief of the victim. If, in fact, the robber intends for the victim to believe the item is a dangerous weapon and the victim does reasonably believe it to be so, then that object is to be considered a dangerous weapon for the purpose of the aggravated robbery statute. This is true even though it may not have been capable of inflicting serious bodily harm. We conclude that the State of Kansas, through a series of decisions, has adopted the subjective test.
An annotation of the various decisions on the issue of whether a toy gun can be considered a dangerous weapon may be found at 81 A.L.R.3d 1006.
In State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976), the Kansas Supreme Court held that an unloaded gun could be considered a dangerous weapon within the purview of our aggravated robbery statute. In reaching that conclusion, the court stated:
“The appellant last contends the state failed to sustain its burden of proof to show the crime committed was aggravated robbéry as opposed to simple robbery. The appellant argues it is not shown he possessed a loaded gun and thus he should not be charged with an aggravated robbery. Of course, with an automatic pistol a witness cannot tell whether a gun is loaded unless a shot is fired. Therefore, many courts have recognized one can be convicted of robbery by means of a dangerous weapon or deadly weapon, notwithstanding the fact that the gun allegedly used was unloaded. (Annot., 79 A.L.R.2d 1412, 1426, § 7 [1961]; and see, The State v. Archer, 8 Kan. App. 737, 54 Pac. 927.)” 220 Kan. at 706.
In State v. Robertson, 225 Kan. 572, 592 P.2d 460 (1979), the Supreme Court again dealt with this issue. In that case, the defendant was charged with aggravated robbery but was convicted only of simple robbery. The evidence showed that the defendant had his hand in his pocket during the robbery and acted as if he had a gun. The victims thought he had a gun, but the State could not show that, in fact, the defendant did have a gun. The defendant argued on appeal that the trial court should have dismissed the aggravated robbery charge for lack of evidence. Our Supreme Court answered this question in the negative, stating:
“We have concluded that the question of whether the defendant was armed with a dangerous weapon at the time of the robbery was one of fact for the jury to determine. It was not necessary for the State to show that the robber actually exhibited the weapon to the victim in order to raise a jury question. The only requirement was that there be some substantial evidence which raised a reasonable inference that the defendant was armed. As this court pointed out in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the aggravated robbery statute (K.S.A. 21-3427) requires only that the robber be ‘armed with’ a dangerous weapon, not- that the robber openly display the weapon to the victim. Here the victim, Larry Williams, testified that the actions of the defendant in the store led him to believe that the defendant had a pistol or some other type of weapon. The conduct of the defendant, coupled with his statements at the time, constituted circumstantial evidence that the defendant was armed with a firearm.” 225 Kan. at 574.
The subjective test was explicitly adopted by the Kansas Supreme Court in State v. Davis, 227 Kan. 174, 176-77, 605 P.2d 572 (1980). In that case, the weapon used to accomplish the robbery was a .22 caliber starter pistol, which was incapable of firing a projectile. In holding that the starter pistol could be considered a dangerous weapon to support an aggravated robbery conviction, the Supreme Court, in Syl. ¶ 1, stated:
“In an appeal from a conviction of aggravated robbery (K.S.A. 21-3427) the court holds a starter pistol is a dangerous weapon. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon.”
The court goes on to discuss the issue in the body of the opinion as follows:
“There is a split of authority existing among other jurisdictions as to whether a starter pistol is a dangerous weapon. Those decisions are discussed in 67 Am.Jur.2d, Robbery § 6, p. 33, and in Annot: Robbery by Means of Toy or Simulated Gun or Pistol, 81 A.L.R.3d 1006, 1047. Generally, the courts which hold starter pistols are dangerous or deadly weapons rely on a subjective analysis. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. Our decision in State v. Robertson, 225 Kan. at 574, reflects this subjective analysis. See also State v. Prince, 227 Kan. 137, 605 P.2d 563 (1980).
“We are satisfied the trial court correctly ruled the appellant’s use of a starter pistol elevated the robbery to aggravated robbery. The appellant clearly intended the store attendant to believe the gun was operable and dangerous. The victim could not determine from viewing the gun that it was a starter pistol with a blocked barrel. The cash register was emptied, and the victim was forced to disrobe and submit to rape, because the appellant had the apparent ability to execute the implied threat to use the weapon if resistance was offered. We also note that the starter pistol could easily have been used as a bludgeon. Under these circumstances the starter pistol was a dangerous weapon.” 227 Kan. at 176-77.
In State v. Prince, 227 Kan. 137, 605 P.2d 563 (1980), the weapon involved was an unloaded BB gun, which was incapable of firing. In holding that this was a dangerous weapon under our statute, the Supreme Court stated:
“May a gun, incapable of firing, be a dangerous weapon under our statute? Authorities are split on the test to determine a dangerous weapon, objective or subjective. We adopted the subjective test in State v. Robertson, 225 Kan. 572, 592 P.2d 460 (1979), and reaffirmed it in State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980), holding a starter’s pistol is a dangerous weapon. See also 81 A.L.R.3d 1006. In the instant case, there is no question the BB pistol used was unloaded. We hold this weapon, though unloaded and therefore incapable of firing a projectile, is a dangerous weapon pursuant to K.S.A. 21-3427. The pistol is heavy and could easily have been used as a bludgeon against the victims, rendering serious injury or even death. There is nothing in the record to suggest the robberies were committed in any other fashion than urged by the State.” 227 Kan. at 141.
In State v. Colbert, 244 Kan. 422, 425-26, 769 P.2d 1168 (1989), the weapon involved was an unloaded, defective gun. The Su preme Court, in holding that the weapon in question was a dangerous weapon, stated the law at Syl. ¶ 3 as follows:
“Whether or not a robber is ‘armed with a dangerous weapon’ for aggravated robbery (K.S.A. 21-3427) purposes is determined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. Hence, an unloaded gun or a gun with a defective firing mechanism may be a dangerous weapon within the purview of the aggravated robbery statute.”
The court again referred to the subjective test, which has been adopted in Kansas:
“There was evidence the gun used was defective and inoperable. Additionally, after the robber had taken the victims’ money, one victim observed there were no bullets visible in the cylinder. However, a subjective test is to be used in determining whether a defendant was armed with a dangerous weapon in committing an aggravated robbery. . . .
“Clearly, the robber herein intended the victims to believe the gun was a dangerous or deadly weapon, and the victims reasonably believed it to be such a weapon. As far as the aggravated robbery charges were concerned, the only real issue for the jury was whether or not the defendant was the perpetrator.” (Emphasis added.) 244 Kan. at 425-26.
In State v. Johnson, 8 Kan. App. 2d 368, 657 P.2d 1139, rev. denied 233 Kan. 1093 (1983), this court held that an air rifle capable of shooting BBs could be a dangerous weapon. We set forth the law in Syl. ¶ 1: “An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon.”
Our review of the Kansas Supreme Court opinions and those of this court clearly indicate that, in this state, the. subjective test has been adopted to determine the question at hand. This test is based upon the perception of the victims and the intent of the perpetrator. Thus, even a toy water pistol can be found to be a dangerous weapon if the user intended the victim to believe it was a dangerous weapon and the victim reasonably believed it was a dangerous weapon. The application of this test has no relationship to the question of whether the instrumentality used to accomplish the robbery was actually capable of inflicting deadly harm upon the victim. Indeed, we believe that a careful reading of State v. Mitchell, 220 Kan. 700, would lead to the conclusion that even a finger in one’s coat pocket could be considered a dangerous weapon under the subjective test.
The appellant argues that the Kansas cases do not adopt a totally subjective test. He points out that, in Davis and in Prince, the Supreme Court refers to the fact that the non-functioning guns could have been used as a bludgeon to inflict deadly harm upon the victim. In the case now before this court, he argues that the toy water pistol was totally harmless, being incapable of use either as a gun or as a bludgeon, and he insists this is a distinguishing factor. We disagree with the defendant’s reading of the Kansas decisions on this issue. Despite seemingly qualifying language in the body of the opinion, the syllabus in State v. Davis, 227 Kan. 174, sets out a purely subjective test. The test set forth in the syllabus of Davis does not depend at all on any potential use of the instrumentality as a bludgeon or otherwise. This same purely subjective test is repeated in the syllabi of State v. Colbert and State v. Johnson. We interpret the law of these cases as adopting a purely subjective test, and we disregard any qualifying language in the opinions as being nothing more than dicta or surplusage.
In the record before this court, the defendant has testified that he intended for his victims to believe that the water pistol was a dangerous weapon because he was convinced that such a belief would enhance his chance for a successful robbery. Both victims testified that they believed the defendant had a real gun, that they were intimidated by that belief, and that they acted accordingly. Under these facts, the toy water pistol in question was a dangerous weapon under our aggravated robbery statute.
The defendant argues that the information did not charge the crime of aggravated robbery. His argument is based on the premise that the information alleged that the item used to commit the aggravated robbery was a toy gun and that a toy gun is not a dangerous weapon. We have held that a toy gun may be a dangerous weapon. We have examined the information as amended and hold that the defendant’s argument is without merit. The crime is charged in the words of the statute. The courts of this state have consistently held that, if an information or indictment charges an offense in the language of the statute, it is sufficient. State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985); State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985). The fact that the information alleged that the dangerous weapon involved was a toy gun does not make the information insufficient. This court has held that a toy gun can meet the definition of a dangerous weapon if the subjective test is met. Whether this test is met is a question of fact for the jury. We hold that the information, as amended, properly charged the defendant with the crime of aggravated robbery.
We next turn to the defendant’s contention that the trial court should have granted his motion for acquittal. He argues that the motion for acquittal should have been granted because a toy gun was not a dangerous weapon. This argument is clearly without merit. We hold that, under the subjective test, a toy gun can be a dangerous weapon and that this is a question of fact for the jury.
The defendant next contends that, since the gun was not admitted into evidence at the trial, it was impossible for the jury to determine if the belief of the store clerks that the gun was real was reasonable. He argues that, without presenting evidence to enable the jury to determine reasonableness, the State failed to meet the subjective test and did not prove that the weapon was dangerous. We do not agree.
First of all, the defendant admitted that he intended his victims to believe that he had a real weapon. The victims did, indeed, believe that he had a real weapon. The question of whether the belief of the clerks was reasonable was for the jury. We believe, after reviewing the record, there is ample evidence to support the jury’s decision. The jury was advised by stipulation of both parties that the weapon used to accomplish the robberies was a “black plastic water pistol.” We have reviewed the testimony of the victims in this case and hold that this testimony, along’ with the stipulation of the parties, furnished sufficient evidence from which the jury could determine the reasonableness of the victims’ belief.
The jury was told that the instrument used to accomplish the robbery was a “black plastic water pistol.” We assume this term conveyed some image in the minds of the jurors. This image, along with the testimony of the victims, was sufficient to permit the jury to determine the issue of reasonableness, along with the other issues submitted.
JURY INSTRUCTIONS
The defendant contends that the trial court erred in the instruction it gave the jury defining a dangerous weapon.
A trial court is required by K.S.A. 22-3414 to instruct the jury, and “it is the duty of the court to state clearly the principles of law applicable to the issues raised by the evidence in the case.” State v. Perry, 223 Kan. 230, 236, 573 P.2d 989 (1977). Further, the trial court has discretion in giving its instructions to the jury and, on appeal, the instructions should be approved if, after considering them in their entirety, they properly and fairly state the law as applied to the facts of the case. State v. Smith, 232 Kan. 284, 290, 654 P.2d 929 (1982); State v. Ferguson, Washington & Tucker, 228 Kan. 522, 526, 618 P.2d 1186 (1980).
On the definition of a “dangerous weapon,” the jury was instructed as follows:
“AS USED IN THIS INSTRUCTION A ‘DANGEROUS WEAPON’ IS:
A. ANY OBJECT INTENDED BY THE USER TO CONVINCE THE VICTIM THAT IT IS A DANGEROUS WEAPON; AND
B. WHICH A REASONABLE PERSON UNDER ALL OF THE THEN EXISTING CIRCUMSTANCES WOULD BELIEVE IS A DANGEROUS WEAPON.”
We hold that the instruction given was correct. Kansas has adopted a subjective test for determining if a dangerous weapon was used in the commission of a robbery. This subjective test requires that the defendant intend the victim to believe an object is a dangerous weapon and that the victim reasonably perceives the object to be a dangerous weapon. This is the exact standard that the trial court used in instructing the jury. Indeed, the instruction given to the jury in the instant matter is identical to the standards set out in case law. See State v. Colbert, 244 Kan. 422; State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980); and State v. Johnson, 8 Kan. App. 2d 368.
We hold the trial court correctly instructed the jury on the definition of a dangerous weapon.
NEWLY DISCOVERED EVIDENCE
The defendant argues that the trial court erred in failing to grant him a new trial based on newly discovered evidence. Shortly after the defendant’s conviction, defense counsel found the toy water pistol among the defendant’s personal effects. The motion for a new trial contended that the toy gun represented newly discovered evidence.
The rules governing motions for granting a new trial on the grounds of newly discovered evidence are well settled. In Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988), the Supreme Court set forth this standard:
“The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the allegedly newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)” ’ ” 243 Kan. at 11.
It appears to us that the question in the instant matter is whether the evidence was material. That is to say, was that evidence of such materiality that it would be likely to produce a different result upon retrial? The trial court held that it was not, and we agree.
We have examined the black plastic water pistol used by the defendant. Our examination of this item, along with our reading of the record, convinces us that had the jury been able to examine this water pistol, it would have been at least as likely if not more likely to convict the defendant at his original trial. In other words, had this evidence been available to the prosecution or the defense, it would not have been probable or even likely to have produced a different result. To the contrary, we believe the defendant’s chances of being convicted upon retrial would only be enhanced by the presence of the toy water pistol. As a result, the evidence, while it may be newly discovered, is clearly not material, and the trial court did not abuse its discretion in denying the defendant’s motion for a new trial on the grounds of newly discovered evidence.
MOTION FOR MISTRIAL
The defendant contends that the trial court erred in not granting his motion for mistrial. The motion for mistrial was premised on the fact that the failure of the State to produce the gun at trial was so prejudicial that it deprived him of a right to a fair trial. According to the defendant, had the jury seen the toy gun, it would not have found him guilty of aggravated robbery. We disagree with the defendant, both in his statement of probable outcome and in his statement of the law.
We have examined the record carefully in this case and conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. Not having the toy gun introduced into evidence did not so prejudice the defendant as to deny him his right to a fair trial. Indeed, we have concluded that had the jury seen the gun, it would, in all probability, have returned the same verdict. Our examination of the toy gun in question convinces us that there is nothing about this gun that would have changed the result of the trial.
We hold the defendant was not prejudiced by the absence of the toy gun at trial and that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial.
MODIFICATION OF SENTENCE
The final argument presented by the defendant is that the trial court erred in failing to modify his sentence. The defendant argues that, unless the court makes specific findings that he is a danger to the public and to himself, it is required by K.S.A. 1989 Supp. 21-4603(3)(a) that a court must follow the recommendation of SRDC.
K.S.A. 1989 Supp. 21-4603(3)(a) states: “[T]he court . . . shall modify such sentence if recommended by the state reception and diagnostic center 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.” This statute is applicable to the instant matter because it was in effect when the defendant committed the crimes in October 1989. State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991).
In the instant matter, the SRDC report recommended, in pertinent part: “Recommendation for this inmate is to continue [to be] incarcerated. A second recommendation is issuéd in regard to a sentence length modification that would allow the inmate to rejoin society at an earlier date.”
We see nothing in the language of this recommendation that is equivocal. The recommendation clearly states that the sentence should be reduced.
In denying the motion of the defendant to modify, the trial court did not make the findings of fact contemplated by 21-4603(3)(a). This is a clear violation of the statute and requires that we remand this matter to the trial court for further consideration of the motion to modify sentence.
The State argues that the trial court made sufficient findings at the sentencing hearing to satisfy the requirements of the statute. We disagree. The sentencing hearing took place prior to the SRDC evaluation and recommendation on behalf of the defendant. After the SRDC report is filed, the trial court must take the report into consideration in determining if sentence modification is appropriate. If the court disagrees with the recommendation, it can defeat that recommendation by making the required findings. If, as the State suggests, the trial court is permitted simply to rely on past findings without taking the SRDC evaluation into consideration, the purpose of the statute is defeated. The statute was created because trial courts were not following the recommendations of the SRDC, and the State was faced with serious prison overcrowding problems. O’Neal, Criminal Law, Procedures and Sentencing, 58 J.K.R.A. 27, 27-28 (July/August 1989).
We hold that the trial court abused its discretion by not following the mandates of K.S.A. 1989 Supp. 21-4603(3)(a). As a result, we remand this case to the trial court to determine if the defendant is a danger to the public and if his welfare would not be served by modification. If the trial court makes such findings, the denial of the motion to modify sentence can stand. If the court is unable to make the required findings, the defendant’s sentence must be modified to comply with the SRDC recommendations.
The defendant’s convictions and all other actions of the trial court, other than its action on the modification of the sentence, are affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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Pierron, J.:
Floyd E. Pennington died on March 29, 1990. His will was admitted to probate and notices were given to creditors by publication as prescribed by statute. Additionally, notice was mailed to known creditors by the Co-Administrators C.T.A., (administrators) as prescribed by K.S.A. 1991 Supp. 59-709(b). Notice was not mailed to decedent’s nephew Chester Pennington, a person that the administrators deemed had only a conjectural claim. The trial court allowed Chester Pennington to file a claim out of time and the administrators appealed on behalf of the Estate of Floyd E. Pennington.
Chester Pennington had business dealings with the decedent in the 1960’s leading to a lawsuit by Chester Pennington against the decedent in 1974. That lawsuit was dismissed without prej udice. Prior to his death, the decedent had been the subject of a guardianship and conservatorship. One of the conservators is also one of the administrators. Chester Pennington filed an oral claim in the guardianship and conservatorship based on a September 10, 1969, contract. An interim report to the court, advising the court of Chester Pennington’s oral claim, was filed on November 16, 1989.
The administrators do not deny that they knew Chester Pennington was unhappy with the results of his business dealings with the decedent. They also acknowledge knowing he wanted to pursue a claim based on the 1969 contract, but they did not mail notice to him.
In arguments on this issue before the trial court, the attorney for the Estate of Floyd Pennington said:
“The question is then: was Chet Pennington known or reasonably ascertained to have a claim? The answer to that is no. There has been some discussions about possible interests he might have. The administrators of the estate brought that to the attention of Mr. Meyers and myself. We went back and looked at the old case that had been previously litigated on this matter and discovered that it has been dismissed. In our mind, in our legal opinion, we told the administrators ‘it’s been adjudicated. You don’t have anything to worry about.’ ”
The administrators do not deny that they never mailed notice to Chester, nor do they contend that they orally advised him that he needed to file a claim in the estate within a certain time limit. The administrators do assert that Chester Pennington knew of his uncle’s death and attended all of the probate hearings and, therefore, had the actual notice that K.S.A. 1991 Supp. 59-2236(b) requires. The administrators also assert that Chester had actual notice because he was responsible for overseeing his father’s affairs and actual notice was mailed to his father (decedent’s brother). The trial judge refused to allow that assertion to be a part of his ruling as there was no evidence concerning whether Chester advised his father or handled his father’s affairs. As there is no evidence in the record to support appellants’ assertion, this court also must refuse to consider it.
The first issue to be addressed is whether the personal representative of an estate, in giving the required actual notice to known, creditors may decide not to give notice to parties whose claims the personal representative deems doubtful or conjectural.
The second issue is whether the claimant received actual notice because he knew of the death and attended several probate hearings involving the decedent’s estate.
Essentially, both issues call upon this court to construe K.S.A. 1991 Supp. 59-709(b) ánd K.S.A. 1991 Supp. 59-2236(b). These statutes, as amended in 1989, have not been construed before in Kansas and, therefore, their construction is a matter of first impression. As statutory construction is a question of law, it is subject to this court’s unlimited review. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984); Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). .
Our function is: clear.
“The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent ‘even though words, phrases or clauses at some place in .the statute must be omitted or inserted.’ [Citations omitted.] 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. [Citations omitted.] Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect. This presumption, however, may be strong or weak according to the circumstances, • and may.be wanting altogether in a particular case. [Citation omitted.]” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422) rev. denied 243 Kan. 777 (1988).
In the first issue, this court must determine whether personal representatives of estates must send actual notice of the fact that a will has been probated and that there is a time limitation on filing claims to parties that the administrators believe do not have valid claims. There is no contention that Chester was not known to the administrators, nor is there any contention that they could not have found his, address. Essentially they believe his claim was something upon which he would not be able to recover. Therefore, the administrators contend, because of his conjectural claim, Chester did not amount to a “ ‘known’ creditor,” as that term is applied in K.S.A. 1991 Supp. 59-709.
“Creditor” is defined by Black’s Law Dictionary 368 (6th ed. 1990) as:
“A person to whom a debt is owing by another person who is the ‘debtor.’ [Citation omitted.] . . .
“The word is susceptible of latitudinous construction. In its broad sense the word means one who has any legal liability upon a contract, express or implied, or in tort; in its narrow sense, the term is limited to one who holds a demand which is certain and liquidated.”
Obviously the administrators would like to construe creditor in the narrowest sense of the word.
K.S.A. 1991 Supp. 59-709 does not define creditor or known creditor. Subsection (b) of the statute, added by the legislature in 1989 in response to Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988), uses the terms in its requirement for actual notice: “The personal representative of a decedent’s estate shall give actual notice to known or reasonably ascertainable creditors prior to the expiration of the nonclaim statute.” K.S.A. 1991 Supp. 59-709(b).
The United States Supreme Court held in Pope that if a creditor’s identity was known or “reasonably ascertainable” by the administrators of a decedent’s estate, the Due Process Clause of the Constitution requires that the creditor be given notice by mail or such other means as is certain to insure actual notice.
The Court found that an Oklahoma statute (nearly identical to the Kansas nonclaim statute before its 1989 amendment), which required only publication notice of the fact that a probate estate had been opened and which then barred claims not filed within a certain time limit, did not meet the standards of due process previously enunciated by the Court. The Court found that publication notice is not reasonably calculated to apprise interested parties of the action and to afford them an opportunity to make known their claims. The Court said:
“Providing actual notice to known or reasonably ascertainable creditors, however, is not inconsistent with the goals reflected in nonclaim statutes. Actual notice need not be inefficient or burdensome. We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice. . . . Nor is everyone who may conceivably have a claim, properly considered a creditor entitled to actual notice. Here, it is reasonable to dispense with actual notice to those with mere ‘conjectural’ claims.” 485 U.S. at 489-90.
The Court in Pope relied heavily on Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 2d 865, 70 S. Ct. 652 (1950), and Mennonite Board of Missions v. Adams, 462 U.S. 791, 77 L. Ed 2d 1383, 103 S. Ct. 3530 (1983), in holding as it did. The appellant would like us to rely on some comments by the Court in Pope, Mullane, and Mennonite to find that the claim of Chester was merely conjectural and, therefore, not entitled to actual notice. While the Pope Court did say that not everyone who might conceivably have a claim is properly considered to be a creditor and entitled to actual notice, it was referring back to a similar comment in Mullane. The original comment by the Mullane court was:
“Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. Whatever searches might be required in another situation under ordinary standards of diligence, in view of the character of the proceedings and the nature of the interests here involved we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of this far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages.” Mullane, 339 U.S. at 317-18. (Emphasis added.)
When the Court spoke about conjectural claims in Mullane, it was talking about interests of parties who were difficult to determine. Mullane concerned a trust fund that itself held many smaller trusts and estates. This pooling of small trusts and estates enabled them to take advantage of risk diversification and economical management generally available only to large trust funds. As this was the nature of the property in Mullane, it necessarily involved many parties who were distantly related to the parties in question. It involved substitutions of current income beneficiaries, presumptive remaindermen, and contingent beneficiaries. The Court discussed what searches might be required and determined that it is not necessary to engage in such in-depth searches to meet the standards of due process.
The facts in Mullane are entirely different from the instant case. Chester was a known person. His address was known to the administrators. He had personally talked to the administrators about his claim. He was not a contingent beneficiary or a presumptive remainderman- While his status did not amount to a judgment creditor, Chester and his claim were reasonably ascertainable. The United States Supreme Court has repeatedly held that “[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Mennonite, 462 U.S. at 800.
The United States Supreme Court’s negative opinion of publication notice because of its inadequacy and inefficiency is well known and will not be further discussed here. The administrators had knowledge of Chester’s oral claim and they had knowledge of his address. The statute does not confer upon the administrators the discretion to mail notice only to creditors whom the administrators believe have good claims. The statute prescribes the duty to give actual notice to known or reasonably ascertainable creditors prior to the expiration of the nonclaim statute. If Chester has a valid claim against Floyd Pennington, then his interest will be forever barred if he does not file a claim in the probate estate within the time limit. Therefore, he should have received actual notice.
The second issue is whether the claimant received actual notice because he kneyv of the death and attended several probate hearings involying the decedent’s estate.
The administrators suggest that if this court finds the claimant was statutorily required to receive actual notice, this court should also find he had actual notice because he knew of his uncle’s death and attended several probate hearings. It is not disputed that Chester Pennington knew of his uncle’s death and attended several probate hearings, Does that in fact amount to actual notice?
First, let us clearly state that actual notice is not limited to notice by mail. If the administrators had orally notified Chester that he only had four months to file his claim from the date of the first publication and given him the notice that is required to be conveyed by K.S.A. 1991 Supp. 59-2236(a), that probably would comport with the statutory definition of actual notice in K.S.A. 1991 Supp. 59-2236(b). However, there does hot appear to be any evidence in the record that the administrators did in fact give oral notice to Chester. The claimant asserts in his brief that no oral notice was given to him that his claim had to be filed within four months of the publication date. The administrators do not contest that.
The administrators do suggest no statute requires that the notice tó known creditors contain the time limit. K.S.A. 1991 Supp. 59-2236(a) specifies what must be included in the publication noticé and (b) states the actual notice that is required by 59-709(b) may include, but is not limited to, mailing a copy of the published notice to the creditors. The reasonable construction of that statute would suggest that actual notice needs to include what the publication notice is required to include.
Certainly, if we go back to Pope to determine what the Supreme Court meant by actual notice, it would appear it found that known or reasonably ascertainable creditors must be notified there is a legal proceeding in a certain' court which may affect their interest arid in which they have only a certain time to present their objections and/or claims. It is not unreasonable to conclude that K.S.A. 1991 Supp. 59-2236(b) and/or K.S.A. 1991 Supp. 59-709(b) requires that actual notice follow what is required by Pope.
The administrators cite Mo. Highway & Transp. Com’n v. Myers, 785 S.W.2d 70 (Mo. 1990), to bolster their contention that Chester had adequate notice through knowledge of the death and his presence at the probate hearings. Myers involved several prior cases in which a Missouri Highway and Transportation Commission petitioned to condemn certain property in 1970. Apparently, the commissioners overvalued the landowners’ damages. A jury determined the landowners had been overpaid by $237,000. Many láwsuits were filed in an attempt to get the landowners to repay that money.
The Commission attempted to claim against the estate of Flora Myers, the wife of the original landowner who was deemed to owe the $237,000. Flora died during the pendency of the litigation. The trustee, decedent’s son, served the Commission with copies of the death certificate and moved to substitute himself in his capacity as executor as a party in the litigation in place of his mother. The Commission did not, however, file a claim in the probate court, even though, the Commission had “at least constructive notice of the administration of the decedent’s estate.” 785 S.W.2d at 72.
The Missouri Supreme Court found that the Commission had received actual notice of the essential facts because the notice of letters was published four consecutive weeks, and the Commission was advised of the pending estate several times long before the six-month limitation period expired. “The flow of information provided the creditor constituted 'actual notice’ and the months of inaction thereafter go unexplained.” 785 S.W.2d at 75.
While the administrators here would have us find that the Missouri Supreme Court held general knowledge constituted actual notice, what the court found was that the creditor had received actual notice in accordance with the standards enunciated by the United States Supreme Court in Tope. The Missouri Supreme Court further held that because the claimant knew it was a claimed creditor of Flora Myers, knew she had died, and knew her estate had been opened, etc., this was not a lack of actual notice as the creditor claimed. Concerning knowledge of the claims deadline, the court said that persons are conclusively presumed to know the law. While the administrators have persuasively cited this portion of the opinion, they failed to put it into context. Immediately following, the court explained:
“The Commission had ‘actual notice’ of the essential facts and was represented by counsel at every stage in this protracted litigation. It defies credulity to suggest that the Commission, with its continual involvement in legal proceedings and its ready reliance on ever available in-house and special counsel, can claim it did not know and was somehow unable to ascertain the effect of the statutes limiting the time for and proper manner of processing its claim.” 785 S.W.2d at 75.
Clearly the claimant in the instant case did not have in-house or special counsel and was not involved in numerous legal proceedings.
The administrators would have this court hold that one who might know of the death of the decedent and who attends probate proceedings is bound to be on notice that he or she needs to inquire about a time limit to file a claim. The construction suggested by the administrators could lend itself to abuse and could prevent the sureness of notice the statutes intend.
The administrators are bound by the statute to give actual notice to known creditors. The statute does not give the administrators discretion in determining who has a good claim; generally, the trial judge determines which claims are valid. The statute does not say creditors with knowledge of the death are presumed to be on notice. The United States Supreme Court held in Tulsa Professional Collection Services v. Pope, 485 U.S. 478, that parties who have a claim must be advised of the fact that they need to file that claim within a certain time limit. To interpret the statute the way the administrators would suggest .would ignore the message the Supreme Court issued in Pope.
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Larson, J.:
This is a divorce action in which Luanne Sedbrook appeals the trial court’s ruling that she is ineligible to receive maintenance from Delbert Sedbrook because she was cohabiting with an unrelated male. Luanne also claims the trial court erred by ruling Delbert’s City of Wichita firefighter’s pension is not a marital asset subject to division and may only be considered as a source of funds for the payment of child support or maintenance.
The parties married in August of 1964. After 25 years, the parties separated and Luanne filed for divorce in November of 1989.
Delbert commenced his firefighting employment in May of 1963. Wichita established by charter ordinance its police and fire retirement system on January 1, 1965, which after numerous amendments became Charter Ordinance No. 131. Delbert became a member of the system and continued his uninterrupted employment until he retired in April of 1985 with a monthly pension for life of $1,022.94. Cost of living adjustments increased his monthly pension to $1,084.29 by the time of trial.
Luanne’s contention that Delbert’s pension was marital property subject to division was resolved adversely to her as a matter of iaw by the trial court in January 1991.
At the time of trial in late January and early February of 1991, Delbert was a mechanical maintenance engineer for St. Joseph Medical Center, earning approximately $1,500 gross per month in addition to his Wichita retirement pay. Luanne was a receptionist at Family Physicians and earned approximately $1,200 gross per month. She was 44 years old; he was 50 years old.
Luanne had been a homemaker for 14 years of the marriage. Three of the parties’ four children were adults and the youngest was 17 at the time of the trial. Luanne has worked for Sears and Montgomery Ward, and had a variety of other jobs during the marriage.
During the pendency of the divorce, an auction liquidated the real and much of the personal property of the parties. After giving credit for payment of debts, the cash monies were divided: $17,414.85 to Luanne and $19,118.81 to Delbert.
A hearing on the maintenance issue was held in late February, and in early April the trial court ruled:
“The Court finds that the petitioner has been continuously cohabiting with a gentleman since approximately September, 1990. As a result, the Court finds that this conduct makes the petitioner ineligible to receive payment of spousal maintenance from the respondent. Therefore, the petitioner’s motion for a determination of spousal maintenance is denied.”
Luanne appeals. We reverse.
The trial court abused its discretion in holding Luanne was precluded from receiving spousal maintenance solely because she cohabited with an unrelated male.
“The trial court has wide discretion when it comes to matters relating to alimony, and its judgment in awarding alimony will not be disturbed absent a clear abuse of discretion.” Parish v. Parish, 220 Kan. 131, 134, 551 P.2d 792 (1976). K.S.A. 1991 Supp. 60-1610(b)(2), which relates to maintenance, provides in part: “The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree.”
Many of the statutory considerations relating to the division of property by case law are required to be considered in the de termination of maintenance. Justice Herd, in Powell v. Powell, 231 Kan. 456, 460, 648 P.2d 218 (1982), stated:
“[T]he judicial considerations regarding alimony are well settled. They were capsulized in Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976): ‘Fault is but one element which may be considered in fixing alimony. Other matters which may be considered include the age of the parties, their present and prospective earning capacities, the length of the marriage, the property owned by them [citation omitted], the parties’ needs [citation omitted], the time, source and manner of acquisition of property, the family ties and obligations [citation omitted], and the parties’ overall financial situation [citation omitted]. There is no fixed rule on the subject and the district court in a divorce action is vested with wide discretion in adjusting the financial obligations of the parties. Thus, its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.’
See also Parish v. Parish, 220 Kan. at 134.”
Other than fault, which has been eliminated by the legislature as a factor, the foregoing provisions are similar to those in K.S.A. 60-1610(b)(1), setting forth considerations in the division of property, which include the allowance of maintenance or lack thereof.
The Kansas Supreme Court in In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005 (1990), determined that fault may no longer be considered in the division of property, award of maintenance, or award of attorney fees when the divorce is sought and granted on the ground of incompatibility, except in rare and unusual situations.
In Sommers, over the husband-petitioner’s objection, evidence was admitted that he was having an extramarital affair. In a memorandum opinion the trial court stated:
“ ‘The Court specifically finds that the primary cause of the destruction of the marriage was the Petitioner’s involvement with [name deleted], which the Court finds relevant to the issue of maintenance.
“ ‘While this Court recognizes that this is a no-fault divorce case, nonetheless, there is still some room in these cases for fault ....’” 246 Kan. at 654.
Following a discussion of Maxwell, In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177 (1983), Justice McFarland concluded: “[I]n domestic relations actions it was the legislative intent that, in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault.” 246 Kan. at 657. The court further stated:
“It is difficult to conceive of any circumstances where evidence of marital infidelity would be a proper consideration in the resolution of the financial aspects of a marriage. Consideration of such evidence could result only on a decision of whether or not to impose a penalty for such conduct, as it does not relate to the present or future financial circumstances of the parties or the award of any particular property.” 246 Kan. at 658.
The court held: “Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party’s conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.” 246 Kan. at 658-59.
The parties’ divorce was granted in our case on the ground of incompatibility. When the trial court determined the amount, if any, of maintenance to be allowed, there was no mention in the court’s order of the consideration of anything other than fault. After finding Luanne had been cohabiting with an unrelated male since September of 1990, the trial court stated: “As a result, the Court finds that this conduct makes the petitioner ineligible to receive payment of spousal maintenance from the respondent.” (Emphasis added.)
The trial court did not express indignation or criticize Luanne’s cohabitation, but found that it alone was sufficient to deny maintenance. It appears the trial court resolved the issue of maintenance on the single factor of cohabitation and failed to conduct a realistic evaluation of the parties’ circumstances, future income, and needs as is required by Sommers, 246 Kan. at 658.
Delbert argues the trial court committed no error because maintenance is terminable as well as modifiable, and since Sedgwick County courts have consistently terminated maintenance upon the continuous cohabitation with an unrelated person of the opposite sex, it would have been a waste of the trial court’s time to make all the necessary considerations, allow maintenance, and immediately find that it is terminated. We disagree.
The divorce in this case was not granted until February 6, 1991, and it is clear that under K.S.A. 1991 Supp. 60-1610(c)(2) any marriage contracted by a party with any other person before the judgment of divorce is final is voidable. There is no indication that Luanne and her cohabitant considered themselves wife and husband after the divorce was final.
The trial court’s denial of maintenance appears to be based solely upon Luanne’s cohabitation. This brings into issue the nature of her relationship and its legal effect.
In discussing cohabitation, Professor Linda H. Elrod in 1 Elrod, Kansas Family Law Handbook § 10.083 (rev. ed. 1990), states:
“Without a provision in a decree or agreement, most courts have found that cohabiting with another is not by itself a sufficient change of circumstances to justify termination of maintenance. [Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674 (1983); Overson v. Overson, 125 Wis. 2d 13, 370 N.W.2d 796 (Wis. App. 1985), appeal after remand 140 Wis. 2d 752, 412 N.W.2d 896 (Wis. App. 1987).] Cohabitation is only one factor to consider in assessing the needs of the recipient. If the recipient is in fact being supported by the cohabitant, there may be a strong case for termination based on need no longer [being] present.”
In In re Marriage of Wessling, 12 Kan. App. 2d 428, 429, 747 P.2d 187 (1987), the husband and wife entered into a settlement agreement which became incorporated into their divorce decree and provided that the husband’s support obligations be reduced upon the wife’s “continuous and continual cohabitation with an unrelated male.” The wife admitted to having a sexual relationship but claimed that she had an understanding with the unrelated male that they were free to date other people, that they never held themselves out as husband and wife, and that they had no plans to marry. The wife testified they had done household chores and favors for each other but they maintained separate residences, had no jointly owned property, and did not purchase groceries together or share mortgage or credit card payments.
Our court adopted the following definition of cohabitation from Biltgen v. Biltgen, 121 Kan. 716, 250 Pac. 265 (1926):
“The act or state of dwelling together, or in the same place with another; living together as husband and wife; a living together as man and wife. A condition or status of the parties, a status resembling that of the marital relation. Cohabitation is not a sojourn, nor a habit of visiting, nor even a remaining with for a time; the term implies continuity.” ’ 121 Kan. at 721 (quoting 11 C.J. 952).” Wessling, 12 Kan. App. 2d at 431.'
We held that since the ex-wife and unrelated male did not intend to marry, never maintained a home together, and never shared living expenses nor jointly owned any property, they were not cohabiting.
In Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977), the husband and wife entered into a separation agreement providing for alimony terminating upon the wife’s death or remarriage. Husband claimed his ex-wife had entered into a common-law marriage with an unrelated male and, if a marriage was not found to exist, it was nonetheless contrary to public policy to compel him to pay alimony when his former wife was openly cohabiting with another man.
The trial court in Fleming found no common-law marriage existed because no present agreement to marry was established. This was affirmed on appeal and our Supreme Court further found the ex-wife had no implied legal obligation of support from the unrelated male. Chief Justice Fatzer found no fault with the quotes from Herzmark v. Herzmark, 199 Kan. 48, 54, 427 P.2d 465 (1967), that it was distasteful to permit a divorced wife to hold her former husband and present husband to a duty of support and that it is contrary to public policy for a woman to receive support from both a former and present husband, but said:
“[H]owever, here we are not dealing with a former and present husband. We are dealing with a former husband and a present boy friend with no obligation to support. Alimony is based on the obligation to support an ex-wife and is not to be measured in the future by her chastity or moral conduct.” Fleming, 221 Kan. at 293.
A similar holding that did not disadvantage a divorced wife who permitted an unrelated male to live with her and pay rent and half of the household expenses is found in In re Marriage of Arndt, 239 Kan. 355, 719 P.2d 1236 (1986).
In our case, the trial court’s finding of cohabitation may not be equated with the conclusion that Luanne’s relationship with an unrelated male has become that of wife and husband and is not, by itself, sufficient to justify denial of spousal maintenance.
The legislative intent statement of Sommers,
“Generally, it is the legislative intent that fault not be considered by a trial court in considering the financial aspects of the dissolution of a marriage pursuant to K.S.A. 1989 Supp. 60-1610(b), as any consideration involves a determination of whether or not to impose a penalty for misconduct and is inconsistent with the desire that the dissolution of a marriage occur with minimal hostility and vituperation. The only exception to this rule would be some rare and unusual situation where the misconduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.” 246 Kan. 652, Syl. ¶ 2,
makes the trial court’s order an abuse of discretion because Luanne is being penalized for marital infidelity. The determination of whether maintenance is to be allowed must be arrived at by considering the Powell, 231 Kan. at 460, and Williams v. Williams, 219 Kan. 303, 548 P.2d 794 (1976), factors, with the exception of fault.
It is not, however, improper for the trial court to consider the nature and extent of the financial contribution of an unrelated party, or that which he or she may be capable of assuming, in order to maintain a relationship with the spouse seeking continued maintenance from a former spouse.
Maintenance and division of property are separate and distinct concepts, but neither can be intelligently fixed by itself without giving appropriate consideration to the other. Almquist v. Almquist, 214 Kan. 788, Syl. ¶ 6, 522 P.2d 383 (1974). A division of property operates retrospectively to adjust the rights of the parties to property already accumulated, while maintenance is prospective and deals with future support. Beck v. Beck, 208 Kan. 148, 149, 490 P.2d 628 (1971). The issue is not raised in this appeal, but we do not approve the deciding of the division of property first and then, in a later hearing, the determination of maintenance.
K.S.A. 1991 Supp. 60-1610(b)(l) provides that in making a property division one of the things to be considered is “the allowance of maintenance or the lack thereof.” The determination of maintenance and the division of property should be made at the same time but, if separately determined, in the reverse order to the manner decided by the trial court herein.
The trial court erred in finding Delbert’s firefighter’s pension was not marital property.
Luanne contends the trial court erred when it determined Delbert’s pension as a retired Wichita firefighter was not divisible marital property.
Citing as authority our decision in Grant v. Grant, 9 Kan. App. 2d 671, 685 P.2d 327, rev. denied 236 Kan. 875 (1984), the trial court ruled, as a matter of law, that the pension could only be considered as a source of funds in determining Delbert’s ability to pay spousal support because (1) it was not specifically defined as marital property pursuant to K.S.A. 23-201, (2) it was governed by an anti-alienation city ordinance, and (3) it had no present determinable value.
Based primarily on the Kansas Supreme Court decisions in In re Marriage of Sadecki, 250 Kan. 5, 825 P.2d 108 (1992), and Sommers, 246 Kan. 652, and our opinion in In re Marriage of Harrison, 13 Kan. App. 2d 313, 769 P.2d 678 (1989), plus the overwhelming number of decisions on this issue throughout the United States, we decline to give Grant the credence which it was given by the trial court.
Our review of the trial court’s 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). We further believe that this is a matter of first impression in Kansas because our appellate courts have not determined previously if a municipal firefighter’s pension is divisible marital property.
The statutory basis for division of property in Kansas is provided by K.S.A. 1991 Supp. 60-1610(b), which states:
“(1) Division of property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses joint efforts, by: (A) a division of the property in kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale. In making the division of property the court shall consider the age of the parties; the duration of .the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets, and such other factors as the court considers necessary to make a just and reasonable division of property.”
K.S.A. 23-201(b) defines “marital property” in the following manner:
“All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenacy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
Our court in Grant held military retirement pay was nothing more than a future stream of income with speculative future value and was not a marital asset subject to division. 9 Kan. App. 2d at 676.
The result in Grant (and its precedential value, in our view) was eliminated by the Kansas Legislature in 1987 when it amended K.S.A. 23-201(b) (Ensley 1981) by adding the words “including the present value of any vested or unvested military retirement pay” after the introductory phrase “[a]ll property owned by married persons.” L. 1987, ch. 120, § 1.
We recognized this in In re Marriage of Harrison, 13 Kan. App. 2d at 315, when we held that military retirement pay, whether vested or unvested, is marital property subject to division upon the dissolution of a marriage.
Because remand was necessary to make a new property division in Harrison, we suggested the trial court either determine the present cash value of the asset, reserve jurisdiction to divide the asset as it is received, or use other methods of valuation and disposition which might better address the interests and needs of the parties. We recognized: “The key to an equitable distribution of marital assets is fairness, not mathematical precision.” 13 Kan. App. 2d at 317.
The Kansas Supreme Court next addressed this issue in Sommers, 246 Kan. 652, when it held United States Postal Service vested retirement benefits were marital property. After quoting K.S.A. 23-201(b), Justice McFarland recognized that the reference to military retirement pay was added to the statute because of Grant, and then chose to expand the scope of K.S.A. 23-201(b) by stating:
“The language of K.S.A. 23-201(b) appears to be inclusive rather than exclusive. There is no logical reason why one type of retirement benefits for federal services should be treated differently from another. We conclude that K.S.A. 23-201(b) is broad enough to include retirement benefits from the U.S. Postal Service and that the trial court had authority for its consideration thereof.” Sommers, 246 Kan. at 660.
Justice Six wrote a concurring and dissenting opinion in Sommers which was joined by Chief Justice Miller and Justice Lockett, but their disagreement extended only to the fault issues. The Sommers court was unanimous in its expansion of the provisions of K.S.A. 23-201(b).
In the most recent Kansas Supreme Court case on this issue, In re Marriage of Sadecki, 250 Kan. 5, the trial court was held not to have abused its discretion in the manner in which it considered a major league baseball retirement pension..
In Sadecki, the total value of the property and judgment awárded to the wife exceeded $90,000, while the net value of the property granted to the husband, after deduction of indebtedness and the wife’s judgment, was $7,950. The wife argued the baseball retirement plan had not been deemed an asset subject to division and was only considered as income in comparing the relative incomes of the parties. The husband asserted there was no evidence as to the retirement plan’s value and that it wás considered by the trial court as marital property.
Chief Justice Holmes, writing for a unanimous court, ruled the trial court properly considered the. benefits under the retirement plan as an asset based on the trial court’s statement: “T think that this disparity and the division of the property adequately compensate the wife for the contribution she made toward the creation of the asset which is the baseball retirement.’ ” Sadecki, 250 Kan. at 10.
The wife complained the trial court abused its discretion in not employing the “reserve jurisdiction” method to divide the proceeds of the retirement plan, which was one- of the methods we described and approved in Harrison. Chief Justice Holmes’ opinion described both the present cash value/immediate offset distribution scheme and the “reserve jurisdiction” method in Sadecki as our court had in Harrison, but distinguished Harrison because there expert testimony was presented by a professor of finance who calculated present value actually adjusted for inflation and discounted by a historic rate of interest, while the wife in Sadecki did not present any evidence of the present value of the baseball retirement benefits, which were currently approximately $2,000 per month.
The trial court in Sadecki did not abuse its discretion in failing to adopt the reserve jurisdiction approach. The wife could not complain about the division of property because she failed to establish any present value of the retirement benefits. 250 Kan. at 12.
Throughout the Sadecki opinion, all of the comments concerning the benefits under the major league baseball retirement plan treat it as an “asset,” which is tantamount to a holding that it is marital property subject to division.
We will not attempt to cite every case throughout the United States considering this issue, but the following is a representative sample of the majority of the states that consider retirement benefits property subject to equitable division at the dissolution of a marriage. See, e.g., Rice v. Rice, 757 P.2d 60, 61 (Alaska 1988) (“[T]o the extent retirement benefits have been earned during the marriage, they constitute marital assets and are subject to equitable division.”); Koelsch v. Koelsch, 148 Ariz. 176, 180, 713 P.2d 1234 (1986) (“ ‘[T]he retirement benefits provided under the [Public Safety Personnel Retirement System] are déferred compensation for services previously rendered and are therefore property acquired during marriage’ ” subject to division by the court.); In re Marriage of Hackett, 113 Ill. 2d 286, 292-93, 497 N.E.2d 1152 (1986) (Proceeds of vested interest in Fireman’s Pension Fund were properly classified as marital property.); In re Marriage of Oler, 451 N.W.2d 9, 11 (Iowa App. 1989) (“[P]ension benefits [, including Iowa Public Employees Retirement System benefits,] are treated as marital property and are properly subject to equitable distribution.”); Davolt v. Davolt, 764 S.W.2d 497, 499 (Mo. App. 1989) (Pension benefits earned during the marriage must be considered part of the marital property subject to division in marital dissolution proceedings.); Olson v. Olson, 445 N.W.2d 1, 11 (N.D. 1989) (Unless there is some specific restriction in the plan, pension or retirement benefits accumulated during the marriage are marital property divisible at divorce.); Rice v. Rice, 762 P.2d 925, 926 (Okla. 1988) (“[P]ension benefits [, including police officers pension,] which have accumulated during marriage may be considered as jointly acquired property subject to equitable division in a divorce.”) For a comprehensive collection of the cases on this issue, see Annot., Pension Rights-Division on Dissolution, 94 A.L.R.3d 176, and the supplement thereto.
The rationale for including pension benefits as marital property subject to equitable division has been stated in Stevenson v. Stevenson, 511 A.2d 961, 965 (R.I. 1986):
“ 'To the extent earned during the marriage, the benefits represent compensation for marital effort and are substitutes for current earnings which would have increased the marital standard of living or would have been converted into other assets divisible at dissolution. Subjecting the benefits to division is just, because in most cases the retirement benefits constitute the most valuable asset the couple has acquired and they both have relied upon their pension payments for security in their older years.’ 3 Rutkin, Family Law and Practice § 37.07 [1] at 37-81 (1985).”
We do not deem it necessary to attempt to make distinctions between retirement benefits based on contribution by the participant or the lack thereof; nor do we hold that a different rule must be applied to vested or unvested benefits.
We note in this case that Delbert had contributed $15,104.55 toward his pension benefits during his employment, all of which was recovered in. approximately 15 months. We do not deem it critical to our decision that Delbert’s rights under his Wichita firefighter’s pension were in lieu of any social security benefits which, had they existed, Luanne would have been entitled to share in due to the long term of the parties’ marriage.
Delbert finally contends the pension is not divisible because this is prohibited by Kansas statutes and Wichita charter ordinance anti-alienation provisions.
Pursuant to home rule powers, the City of Wichita, through Charter Ordinance No. 131, exempted itself from K.S.A. 13-14a01 et seq., the state statutes governing fire and police retirement systems. Charter Ordinance No. 131, § 16 provided:
“EXEMPTIONS. The right to a service retirement annuity, disability annuity, death annuity or any annuity or benefit under the provisions of this ordinance by whatever name called, or a refund, is personal with the recipient thereof, and the assignment or transfer of any such annuity or benefit or any part thereof shall be void, except as may be provided herein. Any such annuity or benefit shall not answer for debts contracted by the person receiving the same, and it is the intention of this ordinance that they shall not be subject to execution, attachment, garnishment, or affected by any judicial proceedings.”
Similar anti-assignment or anti-alienation provisions relative to state and local government retirement benefits are found at K.S.A. 12-llla, K.S.A. 12-5005(e), K.S.A. 13-14al0 and K.S.A. 1991 Supp. 74-4923(b). K.S.A. 12-5005(e) (Kansas Police and Firemen’s Retirement System) and K.S.A. 1991 Supp. 74-4923 (Kansas Public Employees Retirement System [KPERS]) both specifically provide that benefits thereunder are not subject to execution, garnishment, attachment or any other process or claim whatsoever, except such annuity, pension, or benefit or any accumulated contributions due and owing from the system to such person(s) or special member “are subject to decrees for child support or maintenance, or both, as provided in K.S.A. 60-1610 and amendments thereto.” (Emphasis added.)
The Kansas Supreme Court in Mahone v. Mahone, 213 Kan. 346, 348, 352, 517 P.2d 131 (1973), held the anti-alienation provisions in K.S.A. 74-4923 (Weeks), which then provided that KPERS funds “shall not be subject to execution, garnishment, or attachment, or any other process or claim whatsoever, [including decrees for support or maintenance,] and shall be unassignable,” was inapplicable to a claim for past-due child support.
Justice Prager looked to the purposes of KPERS as enabling public employees to accumulate reserves for themselves and their dependents in stating:
“In arriving at this conclusion we have applied the principle that a statute is not to be given an arbitrary construction, according to the strict letter, but one that will advance the sense and meaning fairly deducible from the context. ‘It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.’ [Citation omitted.] The whole purpose and policy of our exemption laws has been to secure to an unfortunate debtor the means to support himself and his family, to keep them from being reduced to absolute destitution and thereby public charges. [Citation omitted.] In construing statutory exemptions this court has consistently taken into consideration this purpose and policy. We have by judicial construction exempted from the application of certain statutory exemptions, persons and situations not falling within that purpose.” Mahone, 213 Kan. at 350.
Last year our court in In re Marriage of Knipp, 15 Kan. App. 2d 494, 809 P.2d 562, rev. denied 248 Kan. 995 (1991), held that federal law (42 U.S.C. § 407[a] [1988]) precluded a Kansas court from dividing a lump sum social security disability award, but did not prohibit considering the value of the award in dividing marital property. The exemption section there involved provided:
“ ‘(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and' none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.’ (Emphasis added.)” 15 Kan. App. 2d at 495.
Interestingly, the party prevailing in our court petitioned for review, claiming our decision permitted, and indeed encouraged, the trial court to do indirectly what it could not do directly. The petition for review was not granted.
An earlier Supreme Court decision on a companion issue, Mariche v. Mariche, 243 Kan. 547, 758 P.2d 745 (1988), citing Ma-hone as authority, held social security disability benefits payable to a parent are subject to garnishment to satisfy past-due child support páyments, and that such garnishment is not precluded by what is now K.S.A. 1991 Supp. 60-2308(a). The true purpose of the exemption statute, to protect the funds necessary to support a pensioner and his family, precluded strict application of the exemption statute. 243 Kan. at 551-52.
We find no decisions directly relating to the construction of the Wichita ordinance and thus look to decisions from other states.
Community property states have held not only is each spouse the owner of the other’s pension (a position we might reach by a literal reading of the language of K.S.A. 23-201(b) that “[e]ach spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto”), but also the anti-alienation provisions were designed to protect benefits from creditors and not from spouses and family members. See Koelsch v. Koelsch, 148 Ariz. 176, 180, 713 P.2d 1234 (1986); Collida v. Collida, 546 S.W.2d 708, 710 (Tex. Civ. App. 1977).
Illinois held in In re Marriage of Hackett, 113 Ill. 2d at 292-93, that enactment of anti-alienation provisions was to protect retired firefighters and their beneficiaries from creditors and that benefits could be divided between divorcing parties. See Rice v. Rice, 762 P.2d at 927 (anti-alienation provision is a “spendthrift” provision to protect a pensioner s income from the claims of creditors; as spouse in divorce proceedings is not a creditor, benefits accumulated during marriage are subject to division as jointly acquired property).
There have been earlier cases which hold to the contrary, but the recent trend is in accordance with the cases above cited.
In Graham v. Graham, 396 Pa. Super. 166, 578 A. 2d 459 (1990), a state employee’s pension was deemed subject to attachment through a qualified domestic relations order in a divorce action notwithstanding a statute exempting benefits from any process whatsoever. Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985), was quoted by the Graham court in setting forth two reasons why state or municipal pensions were not excluded from equitable distribution with the court, stating:
“[First], ‘[r]etirement funds . . . are created for the protection of not only the employee, but for the protection of his family as well. Hence, the provisions exempting assignments and attachments contained therein are- to reheve the person exempted from the pressure of claims that are hostile to his and to his dependents’ essential needs’, citing Fowler v. Fowler, 116 N.H. 446, 362 A.2d 204, 205, 93 A.L.R.3d 705 (1976). . .
“[Second], we note that a family loses its ability to spend a portion.of its income when that income is deferred and placed in a pension. It would be terribly unfair to read an exemption statute, which was created to protect a pension for the benefit of a retired employee’s family, in such a way that the exemption would bar children or a former spouse from receiving support from the very fund created for their benefit, and would once again, deny them the benefits of the income they sacrificed to a pension years before. Id., 507 Pa. at 47-50, 488 A.2d at 267-69 (emphasis added).” 396 Pa. Super, at 170-71.
Wichita Charter Ordinance No. 131 sets forth in § 2 that the system provides “retirement annuities, survivors’ annuities, death benefits and other benefits for police and fire officers of the City of Wichita and their dependents.” (Emphasis added.) We believe a spouse must be considered as a dependent to be granted protection under the plan and not treated as a creditor. A spouse is a member of the family unit the retirement plan is designed to protect. We hold the anti-alienation provisions, in particular those relating to exemption from garnishment, attachment, and prohibition of assignment, do not apply to the claims of a spouse at the time of the marital dissolution.
An excellent collection of cases from the increasing number of states that by statute and decision have conferred on divorce courts authority to make an equitable distribution of joint and separate property and have recognized spousal claims to an interest in retirement and pension benefits is set forth in Baxter, Marital Property § 11.2 (1991 Supp.).
While there is ample authority for our decision here in the prior Kansas decisions we have cited, especially Sadecki, 250 Kan. 5; Sommers, 246 Kan. 652; and Harrison, 13 Kan. App. 2d 313, the logic of those opinions and ours herein is bolstered by some of Professor Baxter’s observations:
“The most timely issue regarding the economics of divorce is the question of spousal claims to an interest in retirement or pension benefits of the other spouse. . . .
“More important, in our typical case, the wife has a just claim to a share of the benefit derived from joint contributions, albeit her contributions were of a different order. She already has earned her right to a share and paid for it with her past services. Thus she has a present accrued interest, not a contingent claim such as is involved in alimony.
“. . . The spread of no-fault grounds requires that the economics of divorce be fair and equitable, otherwise the homemaker wife may be victimized and impoverished.
“. . . Not only has alimony been de-sexed, it also has come to be regarded as an interim stipend which is available for a relatively short time while a former spouse in need prepares for the labor market. ... In short, the current law of divorce in most states has upset the former equilibrium and requires new approaches to the concepts of marital property and the future financial security of broken families.” Baxter, Marital Property § 11.2, pp. 26-28.
We hold that none of the three reasons given by the trial court justifies the refusal to consider Delbert’s firefighter’s retirement benefits as marital property because:
(1) Sommers and Sadecki support our finding that K.S.A. 23-201(b) includes a municipal pension as marital property;
(2) the anti-alienation provisions of the Wichita ordinance must not be applied to disadvantage spouses and family members; and
(3) Harrison and Sadecki provide ample authority that the retirement benefit has a determinable value.
Luanne claims the trial court has authority to make her an alternate payee under Delbert’s pension plan pursuant to K.S.A. 1991 Süpp. 60-2308(b) and (c). We will not reach or decide this issue for two reasons. This was not an issue before the trial court and will not be considered for the first time on appeal. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan 548, 552, 731 P.2d 273 (1987). There is also an insufficient record to determine if the statutory requirements are met. See Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 399, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988).
We also decline to reiiiand, as Luanne requests, with instructions that the retirement benefits be divided equally, in kind. The trial court may divide property as set forth in K.S.A. 1991 Supp. 60-1610(b)(l). We will not make an order limiting or confining the trial court’s options.
We recognize the large burden which trial courts bear in following the provisions of K.S.A. 1991 Supp. 60-1610(b), but they must be free to reach decisions that are fair, just, and equitable under all of the circumstances in accordance with the evidence which may be presented and the contentions and arguments which are made.
Reversed and remanded for determination of the property division and allowance of maintenance, if any, in accordance with the directions of this opinion. | [
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Davis, J.:
Lucille W. Jarvis, the surviving spouse of Melvin L. Jarvis, brought this action against Melvin’s four adult children by a previous marriage to set aside his inter vivos revocable trust and pour-over will so that she might elect to take her statutory share of his estate. The adult children claim that the court erred by allowing the jury to consider the question of the validity of the trust since, according to their contention, this is a legal question. They further claim that Lucille Jarvis is estopped by her course of conduct from asserting the defense of nonconsent. By answer to special questions, the jury concluded that Lucille Jarvis did not consent to the transfer of property to the trust and did not consent to Melvin Jarvis’ will. The adult children appeal from the judgment in favor of Lucille Jarvis. We affirm.
Melvin L. Jarvis died on June 4, 1989. He was survived by his spouse, Lucille W. Jarvis, and four adult children by a previous marriage, Ralph J. Jarvis, Mark C. Jarvis, John C. Jarvis, and Joan E. Brown.
Melvin Jarvis executed his last will on March 18, 1983, which was admitted to probate. At the same time, he executed the
M.L. Jarvis Revocable Family Trust Agreement. On the same date, Lucille executed the Lucille W. Jarvis Revocable Family Trust Agreement and her last will.
Attached to the M.L. Jarvis Revocable Family Trust Agreement was Schedule A purporting to convey “[a]ll property, real and personal, now had or hereafter acquired by the Settlor . . . unto M.L. Jarvis, Trustee.” Schedule A was executed, acknowledged, and accepted by M.L. Jarvis. Also appearing is the signature of Lucille W. Jarvis under the statement “Confirmed this 18th day of March, 1983.”
The Jarvis estate plan was developed with the aid of a financial planner, Frank E. Roth. Roth met with Melvin and Lucille twice and recommended the plan involving revocable trusts and pour-over wills. Roth was not a lawyer and testified that he did not advise Lucille of her statutory rights of inheritance. Lucille also testified that Roth did not advise her of these rights. However, Roth’s written recommendations to Melvin and Lucille contained a statement showing how property would pass without a will.
Upon the advice of Roth, Melvin and Lucille contacted their attorney, Peter Peterson, who drafted the necessary documents. According to Peterson, he discussed the plan with them and confirmed the wishes of each. Peterson testified that Lucille wanted her property to pass to her children and Melvin wanted the bulk of his property to pass to his children. He stated that the notes from his file indicated that he discussed with Melvin and Lucille the need for each to consent to the will of the other for the property to pass as they desired. However, according to Lucille, Peterson did not explain her spousal rights of inheritance or that she had a right to inherit from Melvin unless she consented to his will.
Peterson prepared drafts of pour-over wills and trusts following the plan recommended by Roth. Peterson sent the drafts for Melvin and Lucille to Melvin. Peterson also sent a copy of the drafts to Roth. Approximately $295,000 in assets was to be transfered to Lucille’s trust. The assets included bearer bonds valued at $100,000, a house with a net value of $65,000, a note from Mark Jarvis for $50,000, and term life insurance on Melvin’s life with a value of $80,000. Approximately $900,000 in Melvin Jarvis Construction Company, Incorporated (MJCCI) stock was to be transfered to Melvin’s trust. Melvin was the owner and president of MJCCI, which built grain elevators, flour mills, schools, bridges, and buildings.
When Roth received his copy, he sent a letter to Melvin at his business address raising questions including whether Lucille would have any income from the Qualified Terminable Interest Property Trust because the stock was not liquid and did not pay a dividend. Roth did not contact Lucille.
On March 18, 1983, Melvin and Lucille again met with Peterson at his office for the signing of the trusts and wills. According to Lucille, there was no discussion concerning the trusts and wills before the signing and Peterson did not advise her of spousal rights of inheritance. Melvin and Lucille each signed their own trusts and wills. Lucille also signed Schedule A to Melvin’s trust beneath the words “Confirmed this 18th day of March, 1983.” According to Peterson, Schedule A was a transfer document that was intended to transfer property into the trust. Lucille testified that she intended “confirmed” to mean that “it was Mel’s wishes, that this was what he wanted”; however, by signing Schedule A, she did not intend to consent to Melvin’s will.
Peterson testified that he inquired and found out that Melvin and Lucille had reviewed and were comfortable with the drafts. He also testified that he told' both Melvin and Lucille that Schedule A was where they consented to and confirmed each other’s plans. According to Peterson, Melvin and Lucille were fully aware that the confirmation was a consent. Peterson testified that neither Lucille nor Melvin had any hesitancy in signing the confirmation.
Immediately following the signing of the trusts and wills and at Peterson’s direction, Melvin and Lucille signed deeds that changed the ownership of their home from joint tenancy with right of survivorship to Lucille’s trust. The deeds were not recorded but were kept in escrow at the bank.
A few days after the signing, Peterson sent a letter to Melvin with a copy to Roth explaining what had happened and what needed to happen. In response to Peterson’s letter, Roth wrote to Melvin and Lucille suggesting they find some way to convert the MJCCI stock to cash upon Melvin’s death. Roth advised Melvin and Lucille that in order for their trusts and wills to be effective, they needed to transfer their property to the trusts in the manner and amounts suggested in Peterson’s letter. According to Peterson, Melvin’s property was transferred to his trust and Lucille’s property was transferred to her trust upon the signing of the trust agreements and schedules. Peterson testified that nothing more needed to be done by Melvin and Lucille but that more may be needed to put third parties on notice.
After the documents were signed, Melvin and Lucille did not have any discussions about the trusts.
According to Lucille, Melvin did not do business in the name of the trust or as trustee of the trust. In 1987, First National Bank demanded full payment of a note due it from MJCCI. Melvin sold $80,000 of securities that Lucille had purchased before marrying Melvin and used the money as payment on the bank note. Melvin made gifts of MJCCI stock to his children and grandchildren annually over several years. The MJCCI stock was supposed to have been in Melvin’s trust. Melvin paid his son Jeffs child support of $300 per month for three years. When Jeff moved and stopped making payments on his house, Melvin made the monthly payments until the note was paid off. According to Lucille, nothing in the way Melvin handled their affairs changed after they signed the trusts.
Melvin died in June 1989. At the time of Melvin’s death, the MJCCI stock left in his estate was valued at $206,712.
In July 1989, during a phone conversation with her brother-in-law, a retired banker in Kansas City, Lucille told him that she had not received anything from Melvin’s estate. When her brother-in-law explained to Lucille that she may have a right to elect against Melvin’s will, Lucille learned for the first time of her spousal rights of inheritance. Lucille then petitioned the court to probate Melvin’s will, signed an election against the will, and filed this lawsuit.
Following a trial, the jury returned a special verdict finding (1) Lucille did not consent to a transfer of property to Melvin’s trust; (2) Lucille did not consent to Melvin’s will; (3) Melvin made an explicit declaration and had the intent to create a trust; (4) Melvin’s trust did not contain definite property or subject matter; and (5) Melvin did not accept and handle the trust property as a trustee of a trust. The trial court entered judgment in favor of Lucille and ordered Mark Jarvis, as successor trustee of Melvin’s trust, to provide an accounting of the trust property and to transfer all property to Lucille, as executrix. The trial court also ordered Mark, Ralph, John, and Joan to account for and transfer to Lucille, as executrix, all property distributed to them as beneficiaries of Melvin’s trust. This appeal follows.
The adult children argue that Lucille should be estopped from maintaining that she did not consent to Melvin’s trust and pour-over will because her course of conduct throughout the estate planning was one of acquiescence and because she accepted the benefits of the plan. They further argue that even if Lucille’s consent was based on a willingness to act unintelligently, the consent is nevertheless valid under In re Estate of Ellis, 168 Kan. 11, 29, 210 P.2d 417 (1949). Finally, they argue that Lucille consented to the last will of Melvin by her confirmation of the entire plan or, at the very least, that the question of whether her confirmation was a consent was a question of law to be decided by the court, not the jury.
“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. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction, and nothing can be supplied by mere intendment.” Tobin Constr. Co. v. Kemp, 239 Kan. 240, 243-44, 718 P.2d 302 (1986).
The adult children claim that undisputed facts set forth in their brief call for but one conclusion — that Lucille may not at this time say she did not consent to the trust of Melvin. We have considered those facts and conclude that factual issues involving the consent to the trust and will remain. Lucille contends that Roth did not advise her of her statutory rights. This fact is undisputed, for Roth acknowledges that he is not an attorney and that he did not give Lucille legal advice. He did make reference to those rights in the written plan submitted to Lucille and Melvin but he gave no advice. Peterson, the attorney drawing the instruments, testified that he advised Lucille of her rights, but Lucille denies that such advice was given. Lucille signed Schedule A, attached to Melvin’s trust, under the following text: “Con firmed this 18th day of March, 1983.” Lucille contends that by her signature, she merely intended to confirm what Melvin was doing.
Given the opposing and conflicting evidence on the very important question of whether Lucille consented to the transfer of property to the trust and the fact that the term used was confirmed, not consented, it is not surprising that the trial court denied all defense motions seeking a verdict on the basis of estoppel. Instead, the court properly submitted in the form of a question to the jury whether Lucille consented to the transfer of property to Melvin’s trust and, further, whether she consented to the will of Melvin.
The actions of Melvin and Lucille in the years following the creation of the trust did not indicate or represent to the children the existence of the trusts. According to Lucille, Melvin conducted their business as he always had. Melvin did not do business as trustee for his trust. Melvin’s checking account at the time of his death was in his own name. There is no evidence that the stock certificates Melvin gave to his children before his death indicated he was acting as trustee. The signing of the documents and the actions of Melvin and Lucille did not induce the adult children to act to their prejudice.
The adult children also argue that Lucille may not deny her consent because she made no effort to inform herself and demonstrated a willingness to act unintelligently. In making this argument, the adult children rely on In re Estate of Ellis, 168 Kan. 11. A critical difference between our case and Ellis is that in Ellis, the spouse knew that her consent would be required. Lucille testified she did not know her consent was required. Ellis provides little, if any, support for the adult children. Moreover, Peterson represented Melvin and Lucille. Melvin and Lucille sought out legal advice from Peterson for their estate planning. Lucille made an effort to inform herself of her legal rights during the estate planning process. A review of the circumstances does not show that Lucille was willing to act unintelligently.
The adult children finally argue that whether Lucille’s written confirmation was a consent was a question of law rather than a factual issue for the jury. The adult children rely on the case of Larned v. Larned, 98 Kan. 328, 158 Pac. 3 (1916), to support their contention that Lucille by her signature of confirmation consented as a matter .of law to the transfer of property to Melvin’s trust and consented to the will. In Lamed, the husband made a statement in his last will that “I confirm to her [his spouse], her right to dower, in all the real estate of which I shall die seized. ” -98 Kan. at 332. The court defined the term confirm to mean “to make firmer, to strengthen, sanction or ratify.” 98 Kan. at 333, Unlike Lamed, we deal with the question of whether the surviving spouse, by signing a confirmation, knowingly, waived her statutory right to elect against her deceased husband’s will, The fact that Lucille claims that she had no knowledge of any such rights at the time of the execution of the will and the trust and merely intended by her signature to acknowledge what Melvin was doing raises factual questions concerning the use of the word confirm. Lamed provides no basis for concluding in this case that Lucille’s signature as a matter of law was a consent to the entire estate plan.
It has long been the rule in Kansas that if one spouse transfers property without the consent of the other spouse and retains the power of revocation, the transfer is “fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.” Ackers v. First National Bank of Topeka, 192 Kan. 319, 333, 387 P.2d 840 (1963). In Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988), the court affirmed the rule of Ackers, noting that “Ackers has been the law of this state since 1963. Thus, it is a part of the body of law utilized by estate planners since that time.” 243 Kan. at 189. As further noted in Newman, “[T]here was no need to prove fraud. It was implied from the creation of the revocable trust without consent.” 243 Kan. at 189.
For the transfer of Schedule A property to Melvin’s trust to be effective, the consent of Lucille was essential under Ackers. The use of the word confirmed does not establish such consent, especially when consent to the transfer is denied and the evidence is conflicting on this issue. The court left the resolution of the issue to the jury, which decided that Lucille did not consent to the transfer of property to Melvin’s trust.
The adult children contend that the question of the validity of the trust was a question of law to be determined by the court and not the jury. We need not resolve this question because we have concluded that the issue of consent to the transfer of property to the trust and consent to the will was submitted to the jury under proper instructions and resolved against the adult children. Under these circumstances, even if the trial court may have erred in submitting the question of the validity of the trust under Pizel v. Pizel, 7 Kan. App. 2d 388, 643 P.2d 1094, rev. denied 231 Kan. 801 (1982), to the jury, the error has no effect upon the disposition of this case. The transfer of property to Melvin’s trust was ineffective under Ackers arid Newman; Lucille did not consent to Melvin’s will so she is now in a position to elect against his will as held by the trial court.
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Brazil, J.:
LeRoy Thompson appeals the trial court’s grant of summary judgment in favor of the Board of Education of Unified School jDistrict No. 259, Wichita, Kansas (Board). Thompson claims ;his employment was terminated unlawfully and he was entitled to notice on or before April 10 of the year in which he was terminated or he could assume he would be offered a contract for the next school year as mandated under K.S.A. 72-5411 and K.S.A. 72-5437. He further claims that Article XVIII of the Teachers’ Employment Agreement was void because it violated those statutes and his Fourteenth Amendment due process rights. We affirm.
Briefly stated, Thompson was a tenured avionics teacher in the vocational education program of U.S.D. No. 259. He was certified to teach only avionics, and he was a competent and satisfactory teacher.
In May 1989, the acting director of the Board’s division of vocational and continuing education recommended that the avionics program be discontinued. To enable the vocational department to receive state funding, at least 70% of its graduates must be placed in jobs in private industry. The Wichita program had failed to “even come close” to this placement rate. The district was also faced with low enrollment in the program. On July 10, 1989, the Board voted to discontinue the avionics program and lay off Thompson and another avionics teacher.
In a letter dated July 11, 1989, the Board notified Thompson he was laid off effective August 11, 1989, from his teaching position. The letter stated the layoff was in accordance with Article XVIII of the Teachers’ Employment Agreement collectively bargained for between the Board and the National Education Association-Wichita (NEA-W).
1. Summary judgment.
A motion for summary judgment under K.S.A. 1990 Supp. 60-256(c) is to be granted only where the record conclusively shows there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶ 2, 674 P.2d 1054 (1983). This case was tried pursuant to motions for summary judgment filed by both parties. There were no material facts in dispute; thus, the issues are whether reasonable minds could differ as to the conclusion drawn from the agreed facts and whether the court correctly found as a matter of law that the negotiated agreement did not conflict with the statutory scheme and Thompson’s due process rights were not violated. “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).
2. The collective bargaining agreement.
The trial court found'that Thompson had been laid off instead of terminated; thus, the layoff was governed by Article XVIII of the collective bargaining agreement and not by K.S.A. 72-5411 and 72-5437.
On appeal from summary judgment, if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 786 P.2d 416 (1988).
The Board argues it did not terminate the contractual relationship with Thompson and that it continued to owe him a variety of contractual duties. If points out that, had it terminated Thompson, it would have ceased its contractual obligations to him.
In addition, the collective bargaining agreement provides that no layoff is a'termination or nonrenewal under K.S.A. 72-5436 et seq. There is no controversy that, although Thompson was not a member of NEA-W, the NEA-W represented and bargained for Thompson. Thus, Thompson was bound by the collective bargaining agreement. Accordingly, reasonable minds could not differ .as to the conclusions drawn from the agreed-upon facts.
Thompson claims; the trial court erroneously determined the negotiated agreement and subsequent actions of the Board took precedence over the mandate of K.S.A. 72-5411. and K.S.A. 72-5437. He argues the Board’s actions were ultra vires and therefore void. The Board responds that 72-5411 and 72-5437 do not prohibit a school board from laying off teachers with employment contracts when layoffs are for economic reasons unrelated to the teachers’ performance.
In Wessely v. Carrollton School, 139 Mich. App. 439, 362 N.W.2d 731 (1984), at issue was a Michigan statute requiring the Board,qf Education to notify schoql administrators of nonrenewal at least 60 days before the contract termination date or the contract would, automatically .be renewed. The plaintiffs’ contracts were not nonrenewed within the statutory deadline, but a collective bargaining agreement permitted the board to lay off the school administrators after the statutory deadline for nonrenewal.
The Wessely court stated:
“We find nothing ambiguous in the statute before us that would require us to construe it or analyze the legislative intent behind it. It clearly applies to nonrenewals of contracts. There is no reason to extend it to lay-offs as well. Plaintiffs argue that administrators need procedural protections from lay-offs as well as from nonrenewals of contracts. That argument might well be taken up with the Legislature, or at the next collective bargaining talks. But it does not persuade us to expand application of this statute to accommodate plaintiffs’ situation.
“As the trial judge noted, nonrenewal of a contract terminates the legal relationship between the contracting parties, whereas a lay-off does not necessarily mean cessation of the employment contract. This case provides a good example of the distinction. . . .
“This Court rejected an argument similar to plaintiffs’ which was made by teachers in Chester v. Harper Woods School Dist., 87 Mich. App. 235, 273 N.W.2d 916 (1978), Iv. den. 406 Mich. 942 (1979). The teacher tenure act affords various procedural protections for teachers who are discharged or demoted. M.C.L. § 38.101; M.S.A. § 15.2001. This Court ruled, however, that these protections are not extended to teachers laid off for economic necessity. The Chester Court pointed out that statutory provisions entitling teachers to notice of the charges against them and a hearing before the school board, would be useless gestures in the context of a lay-off for economic necessity, since neither the teachers’ conduct nor performance was being called into question.” 139 Mich. App. 442-43.
This reasoning is applicable to the present case. K.S.A. 72-5411 and K.S.A. 72-5437 unambiguously state they apply to teacher terminations. Thus, the statutes do not protect Thompson from layoff.
The trial court in the present case found that layoff and recall is a mandatory topic of negotiations under the Professional Negotiations Act and that it was negotiable by both NEA-Wichita and the Board. In a letter on its decision, the court reasoned that under Kansas law the collective bargaining unit representing the NEA can lawfully negotiate a provision in the. contract dealing with layoff and recall of teachers that waives any time limits prescribed under Kansas statutes.
All teaching contracts are deemed to continue for the next succeeding school term unless the school'district gives notification to the teacher of intention to térmiriate on or before April 10. K.S.A. 72-5437; K.S.A. 72-5411. Notwithstanding these statutory provisions, Article XVIII § B ¶ 1(a) of the employment agreement provides that teachers whose positions have been eliminated can be laid off. The agreement further provides that only 30 days’ written notice need be given of a layoff. A layoff under the agreement is not to be considered a termination or nonrenewal under K.S.A. 72-5436 et seq. or K.S.A. 72-5411.
Thompson argues K.S.A. 1989 Supp. 72-5413(1) of the Professional Negotiations Act is a general definitional statute adopted to control substantive rights of parties. He claims the Board did not have authority for its actions under this subsection. Thompson also argues that, in order for K.S.A. 72-5411 and K.S.A. 72-5437 to be consistent with K.S.A. 1989 Supp. 72-5413(1), this court must recognize 72-5413(1) is merely definitional and does not change the substantive rights of timeliness of notice.
In U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968, 685 P.2d 874 (1984), the issue of the negotiability of layoff and recall language in a collective bargaining contract was before the Kansas Supreme Court. The court held: “In the event of a reduction in staff, the mechanics of staff reduction is a mandatorily negotiable topic under K.S.A. 72-5413(1).” 235 Kan. 968, Syl. ¶ 2.
In reaching this conclusion, the court in U.S.D. No. 501 looked at the topic approach established in Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), to determine whether a particular item is mandatorily negotiable. Under the topic approach, a proposal does not have to be specifically listed under K.S.A. 72-5413(1) to be mandatorily negotiable as a term and condition of employment. All that is required is that the subject matter of the specific proposal be within the purview of one of the categories listed under “terms and conditions of professional service.” U.S.D. No. 501, 235 Kan. at 969. After applying the topic approach, the court in U.S.D. No. 501 stated: “We agree with the secretary and the district court that the decision to reduce staff is a managerial decision for the school board and thus is not mandatorily negotiable. However, the mechanics for termination or nonrenewal of teachers as a result of reduction of staff are mandatorily negotiable items.” 235 Kan. at 973. In so holding, the court recognized language from the 1980 amendment to 72-5413(1), which provided: “Except as otherwise expressly provided in this subsection, the fact that any matter may be the subject of a statute or the constitution of this state does not preclude negotiation thereon so long as the negotiation proposal would not prevent the fulfillment of the statutory or constitutional objective.” L. 1980, ch. 220, § 1.
In Ottawa Education Ass’n v. U.S.D. No. 290, 233 Kan. 865, 666 P.2d 680 (1983), the issue was whether certain provisions of a negotiated agreement between OEA and the board relating to the reduction of the teaching staff violated any provision of K.S.A. 72-5410 et seq. The negotiated agreement for the 1981-82 school year set forth procedures to follow for reducing teaching positions due to declining enrollment or declining revenues. Any teacher who might have been affected by- a proposed reduction was to be given notice by April 1 that his or her position had been terminated pending a decision of the evaluation committee. Affected teachers could apply for reemployment by May 1 and were to be notified of the decision of the evaluation committee by May 15. The board would then make the final decision after May 15. 233 Kan. 865-66.
While this agreement was in effect, the board became aware a reduction in teaching staff was necessary due to low enrollment. On March 8, 1982, the board voted not to renew the contracts of ten teachers. Notice of intent not to renew was given to these teachers. On March 15, 1982, the board voted to nonrenew these contracts and notified the teachers. The procedures for reduction of teaching staff set forth in the negotiated agreement were not followed. 233 Kan. at 866.
The Supreme Court in Ottawa determined the agreement, which provided for notification of nonrenewal after May 15, conflicted with 72-5411 and 72-5437, which then required notification of nonrenewal by April 15. The court held the agreement was therefore ineffective and void. 233 Kan. at 869. The court stated that the board must notify those teachers who were to be terminated or nonrenewed by April 15. “If the Board delays that decision until after May 15, it loses its chance to reduce its teaching staff.” 233 Kan. at 868.
The Ottawa case is distinguishable in that it dealt with termination or nonrenewal, whereas, the present case deals with layoffs. Thus, contrary to Thompson’s claim, Ottawa does not control the present case. Instead, the plain language of K.S.A. 72-5411 and 72-5437 shows the statutes are inapplicable to layoffs. Layoff is a mandatorily negotiable topic» causing Thompson to be bound by the negotiated agreement.
Thompson also argues the trial court erred in finding a general definitional statute should be given effect over specific statutes that mandate timely notice requirements for teacher terminations. This argument is without merit as there is no conflict between the statutes, and K.S.A. 72-5411 and K.S.A. 72-5437 do not protect from layoff..
3. Due process.
Thompson argues the trial court’s interpretation of the statute results in a taking of his property interest guaranteed under the Fourteenth Amendment without due process. Thompson further argues that K.S.A. 72-5410 et seq. establishes a floor for due process rights to be afforded to a teacher that will be terminated, laid off, or nonrenewed.
The trial court determined due process requirements can be waived under Kansas law and, in the present case, due process was waived by the collective bargaining agreement.
Gorham v. City of Kansas City, 225 Kan. 369, 590 P.2d 1051 (1979), involved suspension and termination procedures collectively bargained for between a city and its police force. The court held the provisions of the collective bargaining agreement constitute an effective waiver of pre-suspension or pre-termination hearings required before property rights may be divested. The court reasoned:
“Few cases have considered waiver of employee’s individual rights by a collective bargaining unit, but those we have found support waiver. Perhaps the leading case is that of Antinore v. State of New York, 49 App. Div. 2d 6, 371 N.Y.S.2d 213 (1975), aff'd 40 N.Y.2d 921, 358 N.E.2d 268 (1976). Antinore, a tenured public employee who was suspended without pay pending removal proceedings resulting from charges of misconduct, contended that the grievance procedure provided in the collective bargaining agreement denied his constitutional rights of a pre-suspension hearing and that he had not waived his constitutional rights. The court held that parties to collective bargaining agreements are free to agree to procedures for the resolution of disputes in a manner which disposes of constitutionally guaranteed rights.” 225 Kan. at 376-77.
The essential elements of due process of law are notice and an opportunity to be heard. Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 30, 542 P.2d 339 (1975). A public school teacher has a property interest in his expectancy of continued employment sufficient to require notice and hearing prior to non-renewal of his contract under K. S.A. 72-5410 et seq. 218 Kan. at 30. The property interest, in a teacher’s contract obligates the school board to grant the teacher notice of a proposed dismissal and a hearing at which he can be fully informed of the reasons for dismissal and challenge their sufficiency. The constitutional right to due process may be waived. 218 Kan. at 30.
Although Thompson argues Gorham is distinguishable, the principle announced that the collective bargaining agreement constitutes an effective waiver of due process fights controls. Thus, in the present case, the agreement waived the April 10 notice requirements. In addition, the Board afforded Thompson his due process rights. He received the agreed-upon 30-day notice and an opportunity to be heard.
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Brazil, J.:
In a drug forfeiture case involving a 1984 Corvette automobile, the State appeals from the court’s order sustaining a motion by Gregory Newell, defendant/owner-appellee, granting judgment on the pleadings and dismissing the forfeiture action. We reverse and remand for further proceedings.
The State contends recent Kansas case law provides a basis for finding Newell’s Corvette facilitated his purchase and/or sale of cocaine. Newell responds that, because the drug sale was completed and he used the Corvette only to pick up the profits from the sale, the car could not have facilitated the drug transaction.
The trial court’s review in this matter is clear. “In considering a motion for judgment on the pleadings . . . the question is whether upon the admitted facts the plaintiff has stated a cause of action.” Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970).
“The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. [Citation omitted.] The motion operates as an admission by movant of all fact allegations in the opposing party’s pleadings.” Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974).
This court’s scope of review of matters of law is well settled. Matters of law are subject to plenary review on appeal. See Beaver v. Kingman, 246 Kan. 145, 148, 785 P.2d 998 (1990).
The State’s petition alleged that Robert Heller advised law enforcement that Newell had approached him wanting to invest $500 with Heller for the purchase and resale of cocaine for profit. They reached an agreement whereby Newell would receive 60 percent of the profits and Heller 40 percent. Newell then gave Heller $500.
Newell and Heller met a few days later, and Newell asked whether the cocaine had been purchased. Heller explained he had used $200 to bond out of jail and had given the remaining $300 to a cocaine supplier but had not yet received any cocaine. Newell told Heller that he was hoping to pay for a trip with the profits and was needing the money. He told Heller that he could invest several thousand dollars more in cocaine if this venture was profitable.
Later that same day, Heller contacted Newell and told him the cocaine had been sold and the money was available. A meeting was set up for midnight at a convenience store. To aid in recognition, Newell told Heller that he would be driving his blue Corvette.
Heller arrived at the convenience store parking lot where New-ell was waiting in a 1984 blue Corvette. Heller gave Newell only $250 and advised he still had a “a little toot” to get rid of and would try to be by with “ ’er tomorrow.” They also talked about another “deal” that could be worked out when Newell returned from his trip with the possibility of going “big time.” Newell concluded this conversation by stating: “Pick me up some toot and we will work a deal out,” to which Heller responded, “OK, sounds good.”
Newell then drove away from the meeting and was stopped by a deputy sheriff and arrested for solicitation to commit a felony. Shortly after, the State filed its forfeiture action against the Corvette. Newell filed a motion to dismiss and/or for judgment on the pleadings, reasoning there was no evidence the Corvette was used to facilitate the cocaine sale as required by K.S.A. 1990 Supp. 65-4156(a)(4); consequently, the Corvette was not subject to forfeiture.
The applicable forfeiture statute, K.S.A. 1990 Supp. 65-4135, reads in part:
“(a) The following are subject to forfeiture:
“(4) all conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation, sale, receipt, possession, concealment, purchase, exchange or giving away of [controlled substances].”
K.S.A. 1989 Supp. 65-4171(d) placed the burden on the State to establish by clear and convincing evidence that the property is subject to forfeiture under the statute. We note the “clear and convincing” standard was changed by the 1990 legislature to a “preponderance of the evidence” standard; however, the amendment at L. 1990, ch. 232, § 2 is not applicable in this case.
The State relies heavily on State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 799 P.2d 1043 (1990). This opinion had not been filed when the district court granted Newell’s motion for judgment on the pleadings. The Supreme Court, citing federal case law, broadly construed K.S.A. 1990 Supp. 65-4135(a)(4). In particular, the court focused on that portion of the statute which reads: “ ‘vehicles . . . which are used ... in any manner to facilitate the transportation, sale, receipt, possession, concealment, purchase, exchange or giving away of [controlled substances].’ ” 247 Kan. at 472-73. The Kansas statute is almost identical to the analogous federal forfeiture statute, 21 U.S.C. § 881 (1988), which provides:
“(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
“(4) All conveyances, including aircraft, vehicles, or vessels, which are -used, Or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances].”
The Kansas Supreme Court agreed with, the federal district court for the Eastern District of New York, which stated:
“ ‘Under the federal forfeiture statutes a vehicle is subject to forfeiture if it is used “in any manner to facilitate the transportation, sale, receipt, possession or concealment of [contraband].” [Citation omitted.] Facilitation has been broadly construed to encompass any use or intended use of a vehicle which makes trafficking in contraband “less difficult and laborious;” there is no requirement that contraband be actually found within the vehicle.’ ” 247 Kan. at 474 (quoting United States v. One 1980 BMW 320i, 559 F. Supp. 382, 384 [E.D.N.Y. 1983]).
In State ex rel. Love v. One 1967 Chevrolet, the Kansas Supreme Court upheld forfeiture after broadly construing the facilitation clause of the statute. 247 Kan. at- 474. In that case, however, there was also much testimonial evidence that cocaine purchases had been made from the car itself. 247 Kan. at 473. Further, police found a bottle in the car which was presumed to have contained cocaine, though the residue remaining in the bottle was too small to conduct an accurate test. 247 Kan. at 471.
The instant case differs factually, as Newell points out, in that the State did not contend in its pleadings that Newell had transported or sold cocaine from the Corvette. The petition only states Newell used the car to pick up proceeds from Heller’s sale and that the two men had a brief discussion concerning future drug deals.
Other federal courts have also broadly construed the federal statute’s facilitation clause. See U. S. v. One 1974 Cadillac Eldorado Sedan, Etc., 548 F.2d 421, 426 (2d Cir. 1977) (vehicle subject to forfeiture if it was used to transport confederates to a prearranged meeting where a sale is merely discussed'or if it is used as a lookout car during the áctual transaction); U. S. v. One 1979 Mercury Cougar XR-7, 666 F.2d 228, 230 (5th; Cir. 1982) (vehicle subject to forfeiture if it is used in “laying the groundwork” for the sale of contraband).
The foregoing broad construction is at odds with a First Circuit decision requiring an antecedent relationship between the vehicle at issue and the contraband. See United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026 (1st Cir. 1980). The First Circuit adopted the rationale that, in order to be subject to forfeiture,' the car must be involved in the transportation of contraband before or during the actual transaction. 625 F.2d at 1030. This narrow interpretation has not been followed generally.
Just as Edward Simard, the owner of the 1972 Corvette, was a “banker” for a drug buy in the First Circuit case, so too was Newell acting as a “banket” for cocaine purchases in this cáse. However, Simard used his Corvette only to pick up his share of the proceeds, which apparently concluded the venture. No further dealings were discussed at that meeting. Newell’s meeting with Heller was not the conclusion of their venture. Newell received only $250 of his original investment, Heller told him he had not .sold all of the cocaine, and Newell told Heller to “[p]ick me up some toot and we will work a deal out”.
-Assuming the allegations in the State’s petition to be true for purposes of the motion to dismiss and/or judgment on the pleadings, we..conclude that a question is presented for the trier qf fact to determine whether the Corvette was being used to facilitate. a sale, purchase, or exchange of controlled substances. The stated facts, if true, would support a finding of an ongoing conspiracy.
We agree with the Statens argument that obtaining, transporting, . fronting, laundering, and disposing of money are as; inherently1 part of the drug trade as the drugs, themselves.,-.
As noted in the Love case,, facilitation may be broadly construed to encompass any use of a vehicle which makes trafficking in contraband less difficult and-laborious. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. at 474.
Federal , case law clearly allows forfeiture where a vehicle is used as either transportation for principals involved in drug sale negotiations or where the vehicle itself is used, as the meeting place. See U.S. v. One. 1974 Cadillac Eldorado, Sedan, Etc., 548 F.2d 421 (forfeiture warranted .where car is used to transport the dealer or , his confederates.,to ,the scene of the sale or to .a. meeting where the sale is proposed); U.S. v. One 1979 Mercury Cougar XR-7, 666 F.2d 228 (forfeiture warranted where car transports principals to meeting to “lay the groundwork” for the sale of contraband).
Using the Corvette to meet with Heller to receive partial repayment of Newell’s front money and to discuss the sale of the rest of his initial purchase and purchase of additional contraband could be construed as facilitating the drug venture between New-ell and Heller.
The trial court’s judgment on the pleadings and dismissal of the forfeiture is reversed and the case remanded for trial.
Finally, Newell contends the State failed to promptly prosecute the forfeiture as required by statute. K.S.A. 1989 Supp. 65-4171 reads:
“(a) The county or district attorney within whose jurisdiction there is property which is sought to be forfeited pursuant to K.S.A. 65-4135 or 65-4156, and amendments thereto, or such attorney as employed by the law enforcement agency and approved by the county or district attorney seeking forfeiture of such property, shall promptly proceed against the property by filing in the district court having jurisdiction of such property a petition for an order to show cause why the court should not order forfeiture of such property.”
The State filed the petition for show cause order and forfeiture 59 days after Newell’s arrest. Newell cites a United States District Court decision construing a federal statute similar to 65-4171. In Dwyer v. United States, 716 F. Supp. 1337, 1340 (S.D. Cal. 1989), the court determined the Drug Enforcement Administration’s seizure notice, filed 62 days after seizure, of defendant’s vehicle, was not sent at the “earliest practicable opportunity” and thus violated the applicable federal forfeiture statute.
The federal statute at issue, 21 U.S.C. § 881-l(b) (1988), reads:
“At the time of seizure, the officer making the seizure shall furnish to any person in possession of the conveyance a written notice specifying the procedures under this section. At the earliest practicable opportunity after determining ownership of the seized conveyance, the head of the department or agency that seizes the conveyance shall furnish a written notice to the owner and other interested parties (including lienholders) of the legal and factual basis of the seizure.” '
The Dwyer court noted that the statute cannot realistically contemplate a delay in filing of longer than a week after ownership is determined. 716 F. Supp. at 1340.
Perhaps a more relevant case is U.S. v. One 1987 Ford F-350 4x4 Pickup, 739 F. Supp. 554 (D. Kan. 1990), where the forfeiture action was filed 166 days after the truck was seized. The court found the forfeiture filing timely. 739 F. Supp. at 561. It stated four factors should be used to evaluate claims of post-seizure delay: (1) the length of delay, (2) the government’s reason for the delay, (3) the owner’s assertion of any rights to a hearing during the delay period, and (4) whether the delay prejudiced the owner’s interest. 739 F. Supp. at 560-61 (citing United States v. $8,850, 461 U.S. 555, 566-69, 76 L. Ed. 2d 143, 103 S. Ct. 2005 [1983]).
In One 1987 Ford, the court ruled the length of delay was not per se unreasonable. The court also noted the truck owner showed no prejudice by the delay, nor was there a showing that he asked for the return of his property or sought a hearing on the matter prior to the filing of the forfeiture action. 739 F. Supp. at 561.
Likewise, in the case before this court, it would be difficult to find a 59-day delay between seizure and forfeiture filing per se unreasonable. Newell also has shown no prejudice suffered by the delay. Further, there is little indication in the record on appeal Newell asked for the return of the Corvette. There is also little indication he sought a hearing in the matter prior to the filing of the forfeiture action.
Reversed and remanded for trial. | [
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Prager, C.J.
Retired: Kelly Joe Clark (defendant/appellant) appeals his conviction on one count of knowingly and intentionally receiving unauthorized consideration in connection with an adoption in violation of K.S.A. 1991 Supp. 59-2121, a class E felony.
The facts in this case were stipulated to by the parties and are undisputed. The defendant received a cash payment of $5,000 as consideration for his consent to the adoption of his baby girl. Defendant admitted that he wanted the money to cover some old bills, including some bad checks, traffic fines, and a phone bill, and to buy a car. Defendant admitted that the money was not to be used to pay any bill or expense incidental to the birth of the child or adoption proceedings.
The controlling statute is K.S.A. 1991 Supp. 59-2121, which provides as follows:
“(a) Except as otherwise authorized by law, no person shall request, receive, give or offer to give any consideration in connection with an adoption, or a placement for adoption, other than;
(1) Reasonable fees for legal and other professional services rendered in connection with the placement or adoption not to exceed customary fees for similar services by professionals of equivalent experience and reputation where the services are performed, except that fees for legal and other professional services as provided in this section performed outside the state shall not exceed customary fees for similar services when performed in the state of Kansas;
(2) reasonable fees in the state of Kansas of a licensed child-placing agency;
(3) actual and necessary expenses, based on expenses in the state of Kansas, incident to placement or to the adoption proceeding;
(4) actual medical expenses of the mother attributable to pregnancy and birth;
(5) actual medical expenses of the child; and
(6) reasonable living expenses of the mother which are incurred during or as a result of the pregnancy.
(b) In an action for adoption, a detailed accounting of all consideration given, or to be given, and all disbursements made, or to be made, in connection with the adoption and the placement for adoption shall accompany the petition for adoption. Upon review of the accounting, the court shall disapprove any such consideration which the court determines to be unreasonable or in violation of this section and, to the extent necessary to comply with the provisions of this section, shall order reimbursement, of any consideration already given in violation of this section.
(c) Knowingly and intentionally receiving or accepting clearly excessive fees or expenses in' violation of subsection (a) shall be a class E felony. Knowingly failing to list all consideration or disbursements as required by subsection (b) shall be a class B misdemeanor.”
Defendant first contends that the evidence was not sufficient to. support the trial court’s finding that the defendant was guilty of the crime of receiving unauthorized consideration in connection with an adoption for the reason that the State failed to prove that he failed to report all consideration received or that he failed to return any unauthorized payment following a judicial determination that the consideration was unauthorized.
We find no merit to this contention. We agree with the State that 59-2121(a) and (b) create separate crimes and that failure to report or reimburse any consideration given or received is not an element of the crime of intentionally and knowingly receiving or accepting clearly excessive fees or expenses in connection with an adoption under subsection (a).
Defendant’s second point on appeal is that the district court erred in denying defendant’s motion to dismiss on the ground that K.S.A. 1991 Supp. 59-2121 is unconstitutionally vague. Defendant points out that 59-2121(c) outlaws the receipt of unauthorized consideration in connection with an adoption only when the consideration is “clearly excessive.” He argues that the “clearly excessive” standard is unconstitutionally vague and, therefore, is a violation of due process of law as guaranteed by the Fourteenth Amendment and state law.
We find this contention to be without merit. K.S.A. 1991 Supp. 59-2121(c) makes it unlawful to intentionally and knowingly receive or accept clearly excessive fees or expenses “in violation of subsection (a).” Subsection (a) makes all receipt of consideration in connection with an adoption or placement for adoption illegal with six exceptions.
It is clear that it was the legislative intent that all fees, expenses, or other consideration received not meeting one of the six exceptions provided are “clearly excessive” and a violation of 59-2121(c) where the excessive fees or expenses are received or accepted knowingly or intentionally.
Where the defendant requests or receives compensation for “fees or expenses” which falls within one of the six exceptions, the defendant may still be guilty of violating the statute where the amount requested or received is not reasonable, actual, or necessary and the defendant acts knowingly and intentionally.
■The class B misdemeanor which arises when a defendant knowingly fails to list all consideration or disburséments in an accounting as required by subsection (b) is an entirely separate crime.
The statute involved here is not unconstitutionally vague. It gives fair warning to those persons potentially subject to it and adequately guards against arbitrary and discriminatory enforcemént. State ex rel. Mays v. Ridenhour, 248 Kan. 919, 943, 811 P.2d 1220 (1991).
In this case, the defendant did not contend that his conduct came within any of the six statutory exceptions. In his statements to the police, defendant clearly acknowledged that the $5,000 he requested and received was not for the purpose of paying any fees or expenses incidental to the birth of the child or the adoption proceedings. He indicated he was aware that his conduct was unlawful. His acts were committed knowingly and intentionally.
We hold that the district court did not err in holding that K.S.A. 1991 Supp. 59-2121 is not unconstitutionally vague.
Affirmed. | [
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Larson, J.;
Cynthia Reynolds appeals, alleging an erroneous jury instruction as to the burden of proving residency under an insurance policy.
Cynthia’s daughter, Sheila Reynolds, died as the result of a two-vehicle accident. The liability limits on the vehicle that collided with Sheila’s car were appreciably lower than the under-insured motorist coverage limits on two separate cars owned by Cynthia and insured with Farmers Insurance Company (Farmers).
Cynthia, as conservator of Sheila’s daughter and sole heir, Ashleigh Nichole Reynolds, alleged her Farmers policy covered Sheila because insureds included “family members.” A family member was defined in the insurance policy as “a person related to you by blood . . . who is a resident of your household.”
The critical issue was Cynthia’s claim and Farmers’ denial that Sheila was a resident of Cynthia’s household at 611 North Third Street, Hiawatha, Kansas, at the time of her death.
This case began as an interpleader action in which Cynthia was a defendant. Farmers was permitted to intervene. The issue of residency was decided by a jury trial in which Cynthia made the opening statement, went forward with her evidence first, and presented opening and closing jury arguments.
After completion of all evidence, the trial court proposed and gave, over Cynthia’s objection, the following instruction:
“Cynthia A. Reynolds, guardian and conservator for Ashleigh N. Reynolds, claims that at the time of the death of Sheila Reynolds, Sheila Reynolds had established her residence at 611 North Third, Hiawatha, Kansas.
“Cynthia A. Reynolds has the burden to prove that her claims are more probably true than not true.”
Cynthia argued that once she had shown that Sheila had established a residency at her house, the burden shifted to Farmers to prove Sheila had changed her residence. Cynthia’s proposed instruction so stating was not given.
The jury verdict, rendered by a unanimous vote, was that, “at the time of her death, Sheila Reynolds was not a resident of the household of her mother.”
The sufficiency of the evidence to justify the verdict is not an issue on appeal. The evidence was contradictory, which gives credence to Cynthia’s contention that if the burden of proof was shifted to Farmers a different result would have been reached by the jury.
Cynthia concludes the issue is whether Sheila had changed her residence and cites an estate case, In re Estate of Phillips, 4 Kan. App. 2d 256, 604 P.2d 747, rev. denied 227 Kan. 927 (1980), and a divorce case, Perry v. Perry, 5 Kan. App. 2d 636, 623 P.2d 513 (1981), in support of her position. Both cases held the burden of proving a change in residence is on the party who asserts the change, but this is not the determinative issue herein.
The critical issue, simply stated, is:
Was the jury properly instructed as to the burden of proof in determining if Sheila was a member of Cynthia’s household at the time of Sheila’s death?
Our standard of review on appeal of the alleged erroneous jury instruction was set forth in Trout v. Koss Constr. Co., 240 Kan. 86, 88, 727 P.2d 450 (1986):
“It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.”
Counsel have not cited to us nor has our research located any Kansas case directly on point regarding the issue of the burden to prove residency sufficient to make a family member an insured under underinsured motorist coverage.
It is the general rule that the insured has the burden of proving the loss sustained was one that comes within the coverage of the policy. 19 Couch on Insurance 2d § 79:345 (rev. ed. 1983) (citing U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan. App. 2d 244, 245-46, 627 P.2d 1147, rev. denied 229 Kan. 671 [1981]). 21 Appleman, Insurance Law and Practice § 12274 n.13 (rev. ed. 1980), cites Southern Farm Bur. Cas. Ins. Co. v. Fields, 262 Ark. 144, 553 S.W.2d 278 (1977), in stating the burden rests on an injured person to show she was an insured within the uninsured motorist coverage. Arellano v. Maryland Casualty Company, 312 S.W.2d 701 (Tex. Civ. App. 1958), was also cited in Appleman § 12275 n.14 for the rule that the burden rested on the named insured to prove that her daughter, who was injured in an automobile accident while riding in an automobile owned by a third party, was a resident of the same household as the named insured.
U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan. App. 2d 244, involved damage to school buildings from a tornado. In ruling on the issue of who had the burden of proving the extent of the loss, our court stated:
“For many years, the law has recognized that the insured has the burden of proof to establish the nature and extent of any loss and that the loss claimed was caused by one of the perils insured against (‘covered’) by the policy. The only exception to this rule pertains to exclusionary clauses within the policy, with respect to which the insurer has the burden of proof. See Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 5, 522 P.2d 401 (1974), and Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879 (1902). Based upon these authorities, we conclude that the burden of proof in this cause is on the plaintiff to prove the nature and extent of its loss, whether ‘total’ (within the meaning of K.S.A. 40-905) or not, and that the loss was ‘covered’ by the policy.” 6 Kan. App. 2d at 245-46.
In Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401 (1974), a livestock auction company claimed insurance coverage for theft of cattle. Because the livestock had disappeared mysteriously, the burden of proof became a critical issue. Our Supreme Court stated:
“The distinction between ‘coverage’ provisions and exculpating or ‘exclusionary’ clauses in an insurance contract is the decisive factor in determining which party has the burden of proof on an issue, where coverage under the policy is disputed. The assured has the burden of proving that the loss was of a type included in the general coverage provisions of the insurance contract. (Buffalo’s Truck Sero. v. National Ben-Franklin Ins. Co., 243 F.2d 949 [1957]).” 214 Kan. at 900-01.
The first reported case by our modern-day Court of Appeals, Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan. App. 2d 1, 5, 561 P.2d 892 (1977), states: “[0]ne who claims benefits under an insurance policy has the burden of showing that the injury suffered was of a type included in the general provisions of the insurance contract.”
In Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 491, 608 P.2d 903 (1980), Baugher was cited as authority for holding: “The assured has the burden of proving that the loss was of a type included in the general coverage provisions of the insurance contract.” Ron Henry Ford, Lincoln, Mercury, Inc. v. Nat’l Union Fire Ins. Co., 8 Kan. App. 2d 766, 770, 667 P.2d 907 (1983), held: “The initial burden of proving that a loss is of the type included within the coverage of an insurance policy is on the insured.”
U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co. states the insured has the burden to prove the “nature and extent of any loss and that the loss claimed was caused by one of the perils insured against (‘covered’) by the policy.” 6 Kan. App. 2d at 245. Baugher places the burden on the assured to prove “that the loss was of a type included in the general coverage provisions of the insurance contract.” 214 Kan. at 901. Although none of the Kansas cases cited directly hold that an insured has the burden of proving who is covered under the policy, such a decision is the natural and logical extension of these cases.
Farmers is not claiming lack of coverage by any exclusionary provision of the policy in its denial that Sheila was a resident of Cynthia’s household. The issue is one of inclusion and the burden of proving Sheila was included in the terms of the policy as a covered person most logically falls upon the insured.
We hold that under the circumstances in this case, the trial court correctly instructed the jury that Cynthia had the burden of proving Sheila was a resident of Cynthia’s household at 611 North Third Street, Hiawatha, Kansas, at the time of Sheila’s death.
The result we reach is not in conflict with the reasoning, logic, or result in either Friedman v. Alliance Ins. Co., 240 Kan. 229, 729 P.2d 1160 (1986), or Teter v. Corley, 2 Kan. App. 2d 540, 541-42, 584 P.2d 651 (1978). Although both cases considered whether a family member was the resident of a household for insurance coverage purposes, neither addressed the burden of proof issue involved herein.
Cynthia has not raised any other objection, but it is clear that she had the right to argue to the jury the contention she makes on appeal because one of the instructions given stated in part that “a residence once established is presumed to continue until the same has been abandoned.” This is a direct quote from Teter and followed Estate of Schoof v. Schoof, 193 Kan. 611, 612, 396 P.2d 329 (1964). The factors relied on to determine residency, which are set forth in detail in Friedman, 240 Kan. at 237, were the basis for another instruction in this case.
The instructions considered together and read as a whole fairly enlightened the jury on the law governing this case.
Affirmed. | [
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Brazil, J.:
Brian J. Higgins appeals the district court’s order granting the City of Lenexa’s (City) motion to dismiss due to Higgins’ failure to file a notice of appeal. K.S.A. 22-3609(2). Higgins contends the time in which to file an appeal had not run and the City’s policies deny a defendant equal protection. We affirm. The facts are not in dispute. Higgins was convicted in Lenexa Municipal Court of obstructing and resisting an officer and criminal damage to property in violation of Lenexa city ordinances. On the same day, Higgins was sentenced by the court and given a 10-day stay of sentence. The court’s decision, sentence) and stay were signed by the judge on the back of the complaints filed with the court. It is undisputed Higgins was represented by counsel at those proceedings.
Five days later, Higgins filed his appeal bond through a bonding company with the municipal court clerk. He was given a date to appear in-Johnson County District Court. Apparently, Higgins bejieved he had filled out, with the clerk’s office, the papers necessary to perfect his appeal,. It is undisputed that Higgins failed to file a notice of appeal with either the Lenexa Municipal Court or the Johnson. County District Court. Higgins also failed to serve a notice of appeal on the Lenexa City Attorney’s office.
The City filed a motion to dismiss for lack of jurisdiction, due to Higgins’ failure to file a notice of' appeal. The court granted the City’s motion. ,■ ,
1. Notice of appeal.
Higgins contends that, because the municipal court never filed a journal entry or judgment form, the 10-day filing period found in K.S.A. 22-3609(2) never commenced! Higgins states, and both parties ágree, the code of procedure for municipal courts, K.S.A. 12-4101 et seq., does not expressly state whether the time to file an appeal runs from the court’s oral pronouncement of sentence or from the filing of a joúrhal entry. Higgins consequently asserts the filing of a journal .entry is governed not by the Code of criminal procedure, but by the code of civil-procedure, specifically K.S.A. 60-258.
The City contends the municipal court proceeding is more in the nature of a. criminal rather than civil proceeding. As such, K.S.A. 60-258 is inapplicable. Further, the court’s oral pronouncement of conviction and sentence meets the applicable requirements found in the code of criminal procedure. The City asserts the 10-day filing period of K.S.A. 22-3609(2) had expired.
K.S.A. 22-3609(2) reads:
“An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court, Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds, to the district court. No appeal shall be taken more than 10 days after the date of the judgment appealed from.”
Higgins asserts that the judgment referred to in K.S.A. 22-3609(2) must be filed and journalized according to the provisions of K.S.A. 60-258. K.S.A. 60-258 states that “[n]o judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of thé court.” We disagree. The municipal code’s provisions regarding judgment read: “If the accused' person is found not guilty, judgment shall be rendered immediately. If the accused person is found guilty, sentence shall be imposed and judgment rendered without unreásonable deláy.” K.S.A. 12-4507. “When a judgment is rendered, thé municipal judge or clerk of thé municipal court shall enter such judgment on the. docket; however, the omission of this duty shall not affect the validity.of the judgment.” K.S.A. 12-4508.
It is well settled that failure to perfect an appeal from a conviction in municipal court to the district court by filing a written notice of appeal as required by K.S.A. 22-360.9(2) is a jurisdictional defect. City of Bonner Springs, v. Clark, 3 Kan. App. 2d 8, 588 P.2d 477 (1978). See also City of Overland Park v. Nikias, 209 Kan. 643, Syl. ¶ 4, 498 P.2d 56 (1972) (“in an appeal from orders of . the district court dismissing, two attempted criminal appeals from the Municipal Court of Overland Park, Kansas, the record is examined and it -is held both attempted appeals were properly dismissed since written notices of appeal were not filed in the municipal court as required by K.S.A. 1970 Supp. 22-3609[2],”). It is also the case that “[t]he judgment, in a criminal case, whether it imposes confinement, imposes a fine, grants probátion, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.” State v. Moses, 227 Kan. 400, Syl. f 2, 607 P.2d 477 (1980). '
A conviction in a municipal court proceeding is more criminal in nature than civil. K.S.A. 12-4103 reads:
“This code is intended to provide for the just determination of every proceeding for violation of city ordinances. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. If no procedure is provided by this code, the court shall proceed in any lawful manner consistent with any applicable law and not inconsistent with this code.”
It is undisputed that the municipal court judge pronounced Higgins’ convictions and sentence in open court, in the presence of Higgins and his counsel. The judge’s handwritten minutes found on the back of the complaints filed with the court reflect Higgins’convictions, sentence, and stay of 10 days. To reiterate, the judgment in a criminal case is effective upon its pronouncement from the bench. State v. Moses, 227 Kan. 400, Syl. ¶ 2.
- Although Moses involved' a felony governed by the code of criminal procedure, the court made no distinction between felony crimes and misdemeanors nor between crimes governed by the code of criminal procedure and those governed by the municipal code:
The present case involved resisting an officer and criminal damage to property, crimes under the- Lenexa municipal ordinances. If Higgins had been charged in district court, rather than municipal court, he would have been charged under K.S.A. 1991 Supp. 21-3720 (criminal damage to property) and K.S.A. 21-3808 (obstructing,legal process or official duty). It is undisputed that in district court judgment would have been effective upon its pronouncement from the bench. We are not persuaded that the procedure in municipal court should be different.
According to the Kansas, Municipal Court Manual, a- municipal court has no civil jurisdiction. Kan. Mun. Ct. Manual § 3.01 (1986 rev.). Further, many of the provisions of the municipal code are patterned after the code of criminal procedure. Those statutes include provisions relating to motions (K.S.A. 12-4408), continuances (K.S.A. 12-4409), order of presentation at trial (K.S.A. 12-4503), jüdgment (K.S.A. 12-4507), sentence disposition (K.S.A. 12-4509), parole (K.S.A. 12-4511), setting aside of judgment (K.S.A. 12-4512), correction of errors (K.S.A. 12-4513), and appeal (K.S.A. 12-4601, K.S.A. 12-4602). See Buck, A New Procedure For Municipal Courts, 42 J.K.B.A. 7 (1973). We conclude that under the code for municipal courts, like the code for criminal procedure, the court’s judgment is effective when announced. Consequently, the time for appeal under K.S.A. 22-3609(2) began to run when sentence was announced. Higgins’ failure to file a timely notice of appeal is a-jurisdictional defect.
In addition,' Higgins has not explained why the notes made and signed by the judge on the back of the complaint would not constitute ¿judgment form under K.S.A. 60-258. Although we have concluded that K.S.A. 60-258 is not applicable to municipal court cases, we believe that the practice of noting the judgment on the back of the complaint, when signed by the judge, constitutes a judgment form-.
At oral argument and by supplemental letter filed after argument, Higgins contends his appeal bond effectively served as both bond and notice of appeal. That contention is without merit. K.S.A. 22-3609 speaks in terms of .two documents: notices of appeals and appearance bonds. Further, K.S.A. 22-3609(3) specifically requires a defendant to serve upon the city attorney prosecuting the case a notice of appeal. There is no such requirement as to the bond, and there is no contention Higgins served the city attorney with a copy of the appearance bond. Consequently, a notice of appeal was not served on the city attorney.
2. Equal protection.
Higgins contends that the City denied him equal protection of the laws because the City does not provide forms for municipal court defendants to appeal their convictions pro se. Higgins argues that other Johnson County cities provide such a form and, consequently, Lenexa’s policy is constitutionally flawed. Higgins cites no authority for his proposition.
Our Supreme Court has held that there must be some statutory protection given to a particular class in order to require an equal protection analysis. Akins v. Hamblin, 237 Kan. 742, 750, 703 P.2d 771 (1985). The Tenth Circuit Court of Appeals has held that, in an equal protection analysis, “the real test is whether the statutory classification has some rational relationship to legitimate state objectives.” Aubertin v. Board of Cty. Comrs. of Woodson Cty., 588 F.2d 781, 785 (10th Cir. 1978). In this case, K.S.A. 22-3609 clearly requires an appeal from a municipal court to be filed in the district court of the county in which the municipal court is located. The practices of other cities in Johnson County regarding pro se appeals should have little bearing on Lenexa’s procedure. Moreover, Higgins was represented by counsel in municipal court. After judgment was pronounced, Higgins attempted to perfect this appeal pro se. Higgins then contacted present counsel and told him that he had already filed a notice of appeal.
Higgins also contends that, regardless of his failure to file a notice of appeal, the Lenexa city prosecutor had notice of Higgins’ appeal and was not prejudiced by his failure to timely file a notice of appeal. That contention has no bearing on this case. “The fact that an appellee has notice of an appellant’s intention to appeal is irrelevant where statutory jurisdictional requirements are not met.” City of Bonner Springs v. Clark, 3 Kan. App. 2d at 10.
Higgins’ equal protection claim is without merit. Higgins must accept the consequences of attempting to proceed pro se.
The district court appropriately dismissed Higgins’ appeal due to lack of jurisdiction. Affirmed. | [
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Knudson, J.:
Harold L. Claus, Jr., appeals from the district court’s decision affirming suspension of his driver’s license for one year for failing a breathalyzer test. The Kansas Department of Revenue (KDR) cross-appeals from certain rulings by the district court.
Several issues are raised in this appeal but we conclude KDR’s assertion that the district court lacked jurisdiction because of insufficient service of process must be sustained. Accordingly, the remaining issues will not be discussed.
Thé heading at the top of the administrative order notifying Claus of suspension of his driver’s license indicates the order was issued by:
“Kansas Department of Revenue
Divisiori of Vehicles-Driver Control Bbreau
P.O. B6x 2744, Topeka, Kansas 66601-2744”
The certificate of service in Claus’ petition for review of the order indicates a copy was mailed to:
“Kansas Department of Revenue
Division of Vehicles-Driver Control Bureau
P.O. Box 2744
Topeka, Kansas 66601-2744”
KDR does not deny that it received actual notice. However, KDR argues proper service would be upon the Secretary of Revenue.
K.S.A. 1990 Supp. 8-259 provides that review of driver’s license suspensions shall be in accord with the Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. 77-601 et seq. K.S.A. 77-615(a) provides: “A petitioner for judicial review shall serve a copy of the petition in the manner provided by subsection (d) of K.S.A. 77-613 and amendments thereto upon the agency head or on any other person or-persons designated by the agency head to receive service.” (Emphasis added.) K.S.A. 77-613(d) provides in relevant part:
“Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. Delivery of .a copy of an order, pleading or other matter means handing it to the person being served or leaving it at that person’s principal place of business or residence With a person of suitable age and discretion who works or resides therein. Service shall be presumed if the presiding officer, or a person directed to make service by the presiding officer, makes a written certificate of service. Service by mail is complete upon mailing.”
There are no provisions for “substantial compliance” contained in the Act comparable to those provided in the Rules of Civil Procedure by K.S.A. 1990 Supp. 60-304. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983).
“Chapter 60’s requirement that the civil procedure be liberally construed is not contained within Chapter 20. in addition, Chapter 20 does not provide, as does Chapter 60, that substantial compliance of service procedure will effect valid service if the party is made aware that an action or proceeding was pending in a specific court in which that party’s status or property is subject to being affected.” 234 Kan. at 390.
KDR argues the notice as addressed properly served only the Driver Control Bureau, a subdivision of the Kansas Department of Revenue, and was not proper service on the “agency head,” who is the Secretary of Revenue. KDR avers that, while the Driver Control Bureau is located in the same building, it is on a different floor, is not part of the Secretary’s office, and does not report directly or indirectly to the Secretary.
The language of the statutes is clear and unambiguous. We find service was improper and that the district court, and thus this court, has no jurisdiction over KDR.
Remanded with directions to the district court to dismiss Claus’ petition for review. | [
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Rulon, J.:
John F. Galloway, defendant, appeals his conviction of one count of possession of cocaine, K.S.A. 1990 Supp. 65-4127a, arguing the district court: (1) violated his statutory and constitutional rights when it held he was voluntarily absent and proceeded with the last day of trial; and (2) abused its discretion in admitting a black pouch into evidence. W.e affirm.
With regard to the black pouch, Galloway testified that he knew his companion Lester Shine had it, but he did not know what was in it. However, later in his testimony, Galloway stated that the only time he saw Shine with the pouch was when Shine removed it from Shine’s car.
At the end of the first day of trial and after the presentation of all the evidence, the court adjourned the proceedings until the following day, The next day, Galloway did not appear in court. A jury instruction conference was conducted between the parties and the court. Defense counsel moved that a mistrial be ordered because Galloway was absent. Finding that Galloway was voluntarily absent, the court denied the .motion.
DEFENDANT’S ABSENCE
Galloway argues that, in finding he was voluntarily absent, the district court did not make sufficient inquiry as to the circumstances causing the absence. At the hearing on Galloway’s post-trial motion for judgment of acquittal or a new trial, the court found that Galloway was absent from the trial because he had gone to the hospital. However, because Galloway failed to notify the court and his counsel .of his whereabouts, the court refused to order a new trial. Contrary to the court’s finding that Galloway had gone to the hospital, there is no evidence in the record establishing that Galloway was in a hospital.
Speaking generally on a defendant’s right to be present in court during criminal proceedings, we have said:
“[A] criminal defendant has the absolute right to be present at all stages of the prosecution against him. This right is guaranteed by the Sixth Amendment to the United States Constitution, which provides that: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. . . .’ The Fourteenth Amendment makes this guarantee obligatory upon the states. [Citation omitted.] It has been held that the right of the accused to be present at trial is one of the most basic rights preserved by the Constitution. [Citation omitted.]
“However, a criminal defendant may not impede or prevent the continuation of his trial by simply choosing to voluntarily absent himself from the proceedings. This exception to the rule that a defendant must be present at trial was first recognized in case law.
“ ‘We have many times held that these rights may be waived by the accused, even in felony cases, and that voluntary absence may be deemed to be such a waiver. Thus a felony trial commenced when the defendant was present could be concluded and a verdict received in his absence when it was shown that the defendant, free on bond, had fled the jurisdiction.’ [Citations omitted.]” State v. Hartfield, 9 Kan. App. 2d 156, 160-61, 676 P.2d 141 (1984).
Thus, although the Sixth Amendment to the United States Constitution allows the defendant the right to be present, this right can be waived. See U.S. v. Rogers, 853 F.2d 249, 252 (4th Cir. 1988). However, the trial “ ‘court has “only a narrow discretion” in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one’s own trial must be carefully safeguarded.’ ” U.S. v. Hernandez, 842 F.2d 82, 85, reh. denied 846 F.2d 752 (5th Cir. 1988).
K.S.A. 22-3405, in relevant part, provides:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has been commenced in such person’s presence shall not prevent continuing the trial to and including the return of the verdict.” (Emphasis added.)
Here, the question raised concerned what constitutes a voluntary absence. In State v. Sandstrom, 225 Kan. 717, 721-22, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), the court noted that counsel for the defendant waived the defendant’s right to be present. In considering waiver, the court noted that Sandstrom was free on bond and was not in custody at the time she was required to appear. 225 Kan. at 721. The court further noted “[t]here is nothing to show that she was prevented from being present or that she could not have been present had she desired to do so.” 225 Kan. at 721.
In State v. Kelly, 213 Kan. 237, 515 P.2d 1030 (1973), the issue addressed by the court was whether a defendant can be sentenced in absentia. 213 Kan. at 241. Although sentencing in absentia is not challenged here, dicta in Kelly clearly indicates that voluntary absence can be found when the defendant has fled the jurisdiction while free on bond. 213 Kan. at 241.
Therefore, based on these prior decisions, voluntary absence can be found when the defendant, released on bond, is not in custody and was not prevented from being present. There does not appear to be any requirement that the court inquire as to why the defendant is absent or whether someone has tried to contact Ox locate the defendant.
Galloway, as we understand, is requesting this court to hold that some inquiry must be made by the trial court before it can determine that a defendant has voluntarily waived his right to be present. Due to the limited discussion of voluntary absence in our case law, decisions of other jurisdictions may provide assistance in analyzing the subject. The Judicial Council Comments to K.S.A. 22-3405 note the Kansas statute is modeled after both Fed. R. Crim. Proc. 43 and Mont. Code Annot. § 95-1904 (1947).
The present version of the Montana provision is found at Mont. Code Annot. § 46-16-108 (1989). Examination of that statute reveals that it does not speak of “voluntary absence”; therefore, reliance on cases interpreting. that statute is not warranted- Accordingly, we turn to consideration of judicial interpretations of the federal rule.
Fed. R. Crim. Proc. 43(b)(1) (1991 Supp.) provides:
“The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, “(1) is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial).”
As noted by Wright, “The purpose of this is to prevent the defendant from obstructing the trial by absconding. If defendant is voluntarily absent, the court may continue the trial up to and including the return of the verdict. Defendant’s absence must be found to be voluntary.” 3A Wright, Federal Practice and Procedure: Criminal § 723, p. 21 (1982).
In U.S. v. Rogers, 853 F.2d 249, the defendant was absent on the second day of trial for about 50 minutes. 853 F.2d at 251. During that time, three witnesses were called. 853 F.2d at 251. Although the district court ordered the transcripts to be available .the next day and also allowed the defendant to recall the witnesses, the circuit court found error. 853 F.2d at 251-52. That court noted a district court faced with such a problem
“should try to find out where the defendant is and why he is absent, and should consider the likelihood the trial could soon proceed with the defendant, the difficulty of rescheduling and the burden on the government. [Citations omitted.] Typically, these factors will favor proceeding without the defendant in multi-defendant trials only. [Citation omitted.]” Rogers, 853 F.2d at 252.
See also Hernandez, 842 F.2d at 85. (“In exercising [its discretion], the trial court must weigh the likelihood that the trial could soon take place with the defendants present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, particularly in multiple-defendant trials; and inconvenience to jurors.”)
In applying the law to the facts, the Rogers court held: “The court' below inquired of defense counsel regarding Rogers’ whereabouts, but did nothing else. This is not sufficient to establish a waiver of his Rule 43 right, particularly in a single defendant trial, and the court abused its discretion by proceeding without further investigation.” 853 F.2d at 252.
The test outlined in Rogers was taken substantially from United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063 (1972), and has been called the “complex of issues” test. United States v. Sanchez, 790 F.2d 245 (2d Cir.), cert. denied 479 U.S. 989 (1986). In ruling that the district court did not abuse its discretion in proceeding with the trial in absentia, the Sanchez court stated:
“It is enough that, in a case with more than one defendant, Sanchez waived his right to be present by failing to appear without explanation and while on bail; that some reasonable steps, including a one-day continuation with notification to his attorney and this issuance of a bench warrant, were taken unsuccessfully in response to his non-appearance; that there was no reason to believe that the trial could likely soon be held with Sanchez present; and that severance would impose on the Government the burden of prosecuting two separate trials that would involve substantially the same evidence.” 790 F.2d at 251.
The Sanchez court also noted that the “complex of issues” test has been expanded to include single-defendant cases. 790 F.2d at 250. However, in single-defendant cases, the factors are not as easily satisfied as in multi-defendant cases. See Rogers, 853 F.2d at 252.
Several state courts have had the opportunity to address the present subject under similar factual circumstances. Gulledge v. State, 526 So. 2d 654, 656 (Ala. Crim. App. 1988) (defendants found voluntarily absent where judge had informed them case to proceed at 9:00 a.m. following day); State v. Hammond, 231 N.J. Super. 535, 542, 555 A.2d 1169 (1989) (proceeding in defendant’s absence not prejudicial when defendant knew time he was to be present and failed to have an excuse for absence); People v. Whitehead, 143 A.D.2d 1066, 533 N.Y.S.2d 753 (1988) (defendant waived right to be present where he was told time at which to appear yet failed to do so); People v. Collins, 137 A.D.2d 542, 524 N.Y.S.2d 283 (1988) (where defendant failed to appear on third day of trial, and court directed that inquiries be made at area hospitals, inquired as to possible rearrest, and issued bench warrant for defendant’s arrest, and efforts at locating defendant at residence or at residences of family and friends unsuccessful, proceeding in absentia upheld); Royal v. State, 761 P.2d 497, 498-99 (Okla. Crim. 1988) (defendant found voluntarily•»absent where an arrest warrant was issued, sheriff searched two residences, courthouse premises were searched, and defense-' attorney, bondsman and family were unable to provide clues as to whereabouts); Nauls v. State, 762 S.W.2d 336, 338 (Tex. Crim. 1988) (proceeding in absentia upheld where defendant informed ás to time he needed to appear, failed to communicate to court or counsel why he was absent, and clerk of court had instructed defendant in telephone conversation on date of absence to come to court “immediately”).
Our case is a single-defendant case. The trial court inquired of defense counsel as to the whereabouts of Galloway. Counsel informed the court that, upon his inquiries, he was informed Galloway was not in either of two local hospitals, nor was he in custody at the county jail. Defense counsel also called the residence of Galloway’s parents, but was unable to learn any relevant information as to Galloway’s location. Further, the court delayed the proceedings for well over one hour in an effort to assure Galloway’s rights would not be violated.
Galloway was present during the first day of trial. Although he was not specifically informed by the court as to when on the second day trial would proceed, the record discloses that the court, in the defendant’s presence, advised the jurors that they were to return at 9:30 the following day. Further, counsel for Galloway reported that he advised his client the trial would start at 9:30 a.m. the following day, but that Galloway should arrive at 9:00 a.m. to discuss some matters. Nowhere in the record is there any showing that Galloway tried to contact the court the morning of the second day of trial to'inform anyone of his whereabouts and why he would be absent.
In contrast to those factors weighing in favor of a finding of a voluntary absence, we note that although defense counsel checked two local hospitals, there are more than two active hospitals in the Wichita vicinity. Additionally, although the county jail was checked, it is possible for a person to be in custody but not yet be placed in jail.
While the district court did not exhaust every means available to locate Galloway, it is clear that the court did more than simply proceed with the trial without first causing inquiry to be made. The mere fact that such an inquiry was directed at Galloway’s counsel does not negate the fact that some information was available to the trial court in order to make a reasoned judgment. Although a trial court can seek to obtain information through its own efforts, this is not a requirement.
Based on the evidence presented, we cannot say the district court abused its discretion in proceeding in absentia. Further, even if this court were to hold that the court erred, such error was harmless.
“The record should affirmatively show the presence of the defendant at every stage of the trial. Unless defendant has effectively waived his right to be present, nothing done in his absence is of legal effect and reversal of his conviction is required unless there was no reasonable possibility of prejudice [sic] defendant from his absence, in which case the error may be regarded as harmless.” 3A Wright, § 721, pp. 8-9.
See also Rogers, 853 F.2d at 252 (a Rule 43 violation is subject to harmless error analysis).
“An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]” State v. White, 246 Kan. 28, 37, 785 P.2d 950 (1990).
Galloway argues the error was not harmless because “absence from the courtroom during instructions and closing arguments would lead impermissibly to conclusions on the part of the jury” that would harm his credibility. If this argument is accepted, then harmless error is never applicable in cases where the defendant was absent. Clearly, harmless error can be applied.
We note that no testimony was heard in Galloway’s absence. The portion of the trial proceedings that occurred in Galloway’s absence included the reading of the jury instructions and closing arguments by counsel. Galloway does not contend that he was harmed by either the instructions given or the closing arguments by counsel. See Royal, 761 P.2d at 498-99 (in voluntary absence determination, court considered that defendant present when evidence presented); Gelsey v. State, 565 So. 2d 876, 878 (Fla. Dist. App. 1990) (where defendant claimed absence during closing argument prejudicial, court affirmed conviction, noting defendant present during opening of trial, evidentiary phase, jury, deliberations and pronouncement of sentence, and that no prejudicial comments were made during closing argument); State v. Hammond, 231 N.J. Super. at 541 (defendant present at evidence- producing portion of trial). Further, the jury was instructed that it was to determine the case on the evidence that was admitted and it was not to be influenced by anything not within the evidence and issues of the case.
We are convinced that the trial court did not err in refusing to order a mistrial, but if error did occur, it was harmless.
THE BLACK POUCH
“A trial judge has discretion to exclude evidence when its probative effect is outweighed by its prejudicial effect on the jury.” State v. Martin, 237 Kan. 285, 289, 699 P.2d 486 (1985). “Probative evidence is evidence that tends to prove an issue; it furnishes, establishes or contributes toward proof.” State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 698, 648 P.2d 249 (1982), aff’d 233 Kan. 223, 662 P.2d 1183 (1983).
“The scope of appellate review is whether the trial court’s ruling was an abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. All judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” Martin, 237 Kan. at 290.
Galloway was convicted of possession of cocaine. At trial, an exhibit admitted into evidence was a piece of crack cocaine found by Officer Bachman after he observed Galloway throw an object to the ground. Also admitted into evidence as an exhibit was a black pouch that Shine removed from his car and which had cocaine residue in it.
Galloway argues that the introduction of the pouch served no probative purpose. He points out that the crime of possession of cocaine requires the specific intent to control the substance, and there was no evidence Galloway had such intent with regard to the pouch. Further, Galloway notes that the only link between this pouch and the State’s case was that Galloway was standing next to the car from which Shine produced the pouch.
The jury was instructed that to establish a violation of the Uniform Controlled Substances Act, it must be found “1. That the defendant possessed a narcotic drug known as cocaine; [and] 2. That the defendant did so intentionally.” See PIK Crim. 2d 67.13.
An additional instruction defined the term “possession” in the following manner:
“Possession ... is to have control with the knowledge and intent of being able to exercise direction over a substance or thing.
“Possession may be exclusive or held jointly with others.
“Possession may be actual or constructive with the power and right to dispense or dispose of the substance or thing.”
See State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989).
Based on the instructions provided and the evidence presented at trial, it is possible that Galloway was convicted of possession of cocaine as a result of constructive possession of the cocaine found in the pouch. This court recently discussed constructive possession in State v. Cruz, 15 Kan. App. 2d 476, 809 P.2d 1233 (1991). We said:
“ ‘Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control. Knowledge of the presence of the controlled substance with the intent to exercise control is essential.
“ ‘Control as used in K.S.A. 65-4127a means to exercise a restraining or directing influence over the controlled substance.’ State v. Flinchpaugh, 232 Kan. 831, Syl. ¶¶ 1, 2.
See State v. Washington, 244 Kan. 652, 654.
‘Possession’ ” of [a controlled substance] is having control over the [controlled substance] with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence. [Citation omitted.] Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. [Citation omitted.]’ ” ’ State v. Rose, 8 Kan. App. 2d 659, 664, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983) (quoting State v. Bullocks, 2 Kan. App. 2d at 49-50).
‘When a defendant is in nonexclusive possession of premises on. which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. [Citation omitted.] Such parallels the rule in Kansas as to a defendant charged with possession of drugs in an automobile of which he was not the sole occupant [State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976).] Incriminating factors noted in Faulkner are a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possession to the drugs. [Citation omitted.]’ ” State v. Cruz, 15 Kan. App. 2d at 488-89.
In our case, Galloway testified that, before his arrest, he spent a good portion of the night in the car and he never left the presence of the vehicle for an extended period of time. Police officers testified that prior to and at the time of his arrest, Galloway was observed standing next to the vehicle in which the pouch was found. While a portion of Galloway’s testimony indicates that he did not know the pouch was present in the car, another portion of the testimony clearly indicates that Galloway knew Shine had the pouch but did not know of its contents. Officer Bachman testified that he saw Galloway throw what he believed was crack cocaine to the ground just prior tó his arrest. The presence of the crack cocaine tends to show prior participation in drug activity. The pouch was removed by Shine from the front seat of a car in which Galloway had spent a good portion of the night. Finally, the pouch contained cocaine residue.
Based on the facts, the pouch was both relevant and probative to the charge of possession of cocaine. It reasonably could have been determined by a jury that not only did Galloway possess the cocaine rock found on the ground, but that he also possessed the cocaine residue found in the pouch. We are satisfied the trial court did not abuse its discretion in admitting the pouch into evidence.
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Lewis, J.:
The defendant, Marion L. Wickliffe, was convicted by a jury of the crime of theft of an automobile. He appeals that conviction, arguing that the trial court erred in failing to instruct the jury on the lesser included crime of deprivation of property. We agree and reverse and remand.
The defendant first came to the attention of the police by driving the purloined vehicle north on State Line Road in Lea- wood at 2:30 a.m. with its headlights off. After observing this event, the officers gave chase and finally cornered the defendant on the second level of a parking garage. The defendant was asked for some identification and could only produce a military identification card. When asked who owned the car, the defendant stated that it belonged to his girlfriend’s mother, whom he identified as Andrea Whitehorse. The officers became further suspicious when, upon questioning, the defendant could not advise them of his girlfriend’s name or address.
At some point during the interrogation, one of the officers observed a wallet lying on the floorboard of the car. This wallet was confiscated by the police and was found to contain the identification of Doris Scott.
Ms. Scott was then contacted by the police and asked if her car was missing. Upon checking the location where the vehicle was last parked, she advised the officers that it was missing. She stated that she had last seen it at 11 p.m.
In addition to his complaints about jury instructions, the defendant argues that the trial court erred in failing to suppress evidence concerning the wallet found in the vehicle by the police.
LESSER INCLUDED OFFENSE INSTRUCTION
The defendant argues that the trial court erred in refusing to instruct the jury on the crime of unlawful deprivation of property as a lesser included offense. We view this contention as meritorious.
State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), has become the lightning rod for all lesser included offense decisions in this state. In many instances, Fike has overruled, explicitly and by implication, many prior Supreme Court decisions defining what is and is not a lesser included offense. It is safe to say that, since Fike was filed, many newly discovered lesser included offenses have been revealed by the application of the two-prong test required by Fike. The net result is that the definition of a lesser included offense has become an ever-changing exercise of judicial fancy. The Fike decision has its quicksilver qualities, which makes the issue one which changes from factual scenario to factual scenario.
We, therefore, begin our analysis by observing that State v. Keeler, 238 Kan. 356, Syl. ¶ 8, 710 P.2d 1279 (1985), specifically holds that unlawful deprivation of property is a lesser included offense of theft. Keeler, however, is pre-Fike and cannot be relied upon without determining whether it can survive the Fike analysis. Without unduly prolonging this opinion, we have applied the statutory elements test of Fike to the matter at hand. That application shows us that Keeler is in harmony with Fike and remains good law. We hold that unlawful deprivation of property was and remains a lesser included offense of the crime of theft.
There is more to the issue than the mere conclusion that one crime is a lesser included offense of the other. In this state, the duty to instruct on lesser included offenses arises only if there is some evidence on which the defendant might reasonably be convicted of the lesser crime. State v. Bishop, 240 Kan. 647, Syl. ¶ 7, 732 P.2d 765 (1987); State v. Keeler, 238 Kan. at 365. The law requires that some evidence be offered to support the lesser offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). “[I]n order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State of the defense for the purpose of proving what events occurred.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). The evidence presented need not be overwhelming; an instruction of a lesser included offense must be given even if the evidence supporting it is weak and inconclusive and based solely on the testimony of the defendant. State v. Eaton, 244 Kan. 370, 374, 769 P.2d 1157 (1989); State v. Hill, 242 Kan. 68, Syl. ¶ 3, 744 P.2d 1228 (1987); State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).
The difference between theft and unlawful deprivation of property is in the intent of the perpetrator. Theft requires an intent to permanently deprive the owner of his or her property. K.S.A. 21-3701. Unlawful deprivation of property involves an intent to temporarily deprive the owner of the use and possession of his or her property. K.S.A. 21-3705.
As we view it, if the evidence is such as to exclude the possibility of an intent to temporarily deprive the owner of his or her property, the lesser included offense instruction need not be given. For example, in State v. Keeler, 238 Kan. 356, the evidence indicated that the stolen vehicle had been gone for nine days. Further, the defendant in Keeler denied that he took the vehicle and that he ever had possession of it. Under these circumstances, the Supreme Court held that there was no evidence to sustain a lesser included offense instruction. In State v. Grauerholz, 232 Kan. 221, 654 P.2d 395 (1982), the defendant took money from another, deposited it in his own account, and proceeded to spend it. The Supreme Court reasoned that his actions were inconsistent with any intent to merely temporarily deprive the owner of his money. Thus, the court held the unlawful deprivation of property instruction was neither necessary nór appropriate.
In the instant matter, there is very little evidence to indicate just what the intent of the defendant may have been. On the one hand, the car had only been missing for at most three and one-half hours and there was no evidence as to when the defendant may have come into possession of it. This evidence, indicating that the defendant had only been in possession of the car a relatively short time, might have sustained an unlawful deprivation of property charge. On the other hand, the defendant lied about whom the vehicle belonged to and attempted.to elude the authorities. This evidence could be construed as indicative of an intent to permanently deprive.
It appears to us that, where there is no real evidence as. to what the defendant’s intent may have been, that issue is left for the jury to determine. Under such circumstances, a jury would be free to conclude that the defendant was guilty of unlawful deprivation of property or of theft, depending upon its reading of his intent.
Based upon the paucity of direct or circumstantial evidence to indicate the defendant’s intent, we hold that the trial court erred in refusing to give an instruction on unlawful deprivation of property. Our holding requires that we reverse the defendant’s conviction and remand for a new trial.
MOTION TO SUPPRESS
The defendant argues that the trial court erred in refusing to suppress the introduction into evidence of the wallet seized from the stolen vehicle. Although we need not necessarily reach this issue in view of our decision to reverse and remand, we do so because of its implications in a retrial.
The trial court appears to have denied the motion to suppress on the grounds that such a motion was required to be filed in writing before trial was commenced. Based upon the failure of defense counsel to file the motion in writing prior to trial, the motion was denied. Our review of the law convinces us that the trial court erred in refusing to consider the motion for the reasons stated.
K.S.A. 22-3216 requires that any party seeking to have evidence suppressed must file a written motion before the commencement of trial. However, as with so many rules, there is an exception. K.S.A. 22-3216(3) states: “The motion [to suppress evidence] shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, hut the court in its discretion may entertain the motion at the trial.” (Emphasis added.)
Based upon this provision in the statute, we hold that the trial court does have discretion to entertain a motion for suppression after the commencement of the trial. In this case, however, the trial court did not exercise that discretion and denied the motion because it was not filed in writing prior to trial.
It was error for the court to summarily dismiss the motion without exercising its discretion and evaluating whether the defendant came within the exception listed in the statute. If the defendant was correct in his assertion that he was not aware of the grounds for the motion prior to trial, then the trial court had the discretion to consider the motion on its merits.
Even though we conclude the trial court erred in refusing to consider the motion, that is of little comfort to the defendant. We conclude that, based on the facts shown, the defendant lacked standing to raise the issue of illegal search and seizure. In addition to that, we are convinced that any error that took place in admitting the wallet was harmless.
It is a well-established principle of the Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution that defendants may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have, in fact, been violated. United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980). “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-72, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). See State v. Sanders, 5 Kan. App. 2d 189, 192, 614 P.2d 998 (1980).
The basic test to determine whether a person has standing to challenge the validity of the search is not whether the person had a possessory interest in the items seized, but whether he had a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); United States v. Salvucci, 448 U.S. at 92; Rakas v. Illinois, 439 U.S. 128, 134, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), reh. denied 439 U.S. 1122 (1979); State v. Whitehead, 229 Kan. 133, Syl. ¶ 2, 622 P.2d 665 (1981); State v. Huber, 10 Kan. App. 2d 560, Syl. ¶ 4, 704 P.2d 1004 (1985).
It is clear that a person who does not have an ownership or possessory interest in the property searched has little legitimate expectation of privacy in that property. State v. Strayer, 242 Kan. 618, 620, 750 P.2d 390 (1988); State v. Sanders, 5 Kan. App. 2d at 193-95. Based on Kansas case law, the lack of ownership or possessory interest is dispositive on the issue of standing.
In State v. Sanders, we held that a driver, who was not the owner of the car searched but who had permission to use the car, had standing to object to a search of the vehicle. Our reasoning was that the possessory right of the defendant to the vehicle put him in the same position as an owner, thus entitling him to the same expectation of privacy. Similarly, in State v. Boster, 217 Kan. 618, Syl. ¶ 2, 539 P.2d 294 (1975), the Supreme Court held that one who is driving a vehicle at the time of his arrest with the apparent consent of the owner has a sufficient possessory interest in the vehicle to challenge the search.
The results reached in Sanders and Boster can be contrasted with that reached in State v. Strayer, 242 Kan. 619. In Strayer, the defendant did not have any ownership interest in the aircraft searched; he was simply a passenger. Under this scenario, the court held that the defendant did not have a legitimate expectation of privacy in the aircraft. 242 Kan. at 620. In addition, in State v. Masqua, 210 Kan. 419, 421, 502 P.2d 728 (1972), the court held that a person who is a trespasser and not legitimately on the premises searched has no interest in the premises sufficient to challenge the search. In State v. Edwards, 197 Kan. 146, 147-48, 415 P.2d 231 (1966), the court held that one cannot challenge the validity of the search of a premises or property which he does not own, lease, control, lawfully occupy, or rightfully possess.
It is clear to us that the thief of an automobile has neither an ownership nor a possessory interest in the property stolen. As a result, that individual cannot have a legitimate expectation of privacy in the vehicle stolen and does not have standing to object to the search of the vehicle and seizure of items therefrom. Accordingly, we hold that the defendant had no legitimate ownership or possessory interest in the stolen vehicle and no legitimate expectation of privacy in that vehicle. Accordingly, we hold that he had no standing to object to the search and seizure of the vehicle.
Although there appears to be no Kansas case law directly holding that the thief of a vehicle does not have a sufficient privacy interest in the car to challenge the search, several decisions of our sister states are in accord. See Hill v. State, 299 Ark. 327, 332, 773 S.W.2d 424 (1989); Hambright v. State, 161 Ga. App. 877, 289 S.E.2d 24 (1982); Mendelvitz v. State, 416 N.E.2d 1270, 1274 (Ind. App. 1981); State v. Wickline, 232 Neb. 329, 334, 440 N.W.2d 249 (1989); Jackson v. State, 745 S.W.2d 4, 7-8 (Tex. Crim. 1988); and State v. Zakel, 61 Wash. App. 805, 807, 812 P.2d 512 (1991).
Our research of the law demonstrates that the overwhelming majority of decisions in this country hold that, if a car is stolen, the occupant has no legitimate expectation of privacy in the vehicle and, thus, no standing to challenge the search. We join our sister states in the imposition of that rule.
Finally, even if we assume the defendant had standing, any error that took place was harmless. The admission of evidence secured by an unreasonable search and seizure, which is cu mulative in nature and does not result in prejudice to or affect the substantial rights of the defendant, is not reversible error. State v. Wood, 197 Kan. 241, Syl. ¶ 4, 416 P.2d 729 (1966). In the instant matter, there was no prejudice to the defendant by the admission of this evidence, and his substantial rights were not affected by the admission of the wallet found in the car at the time of the arrest.
Reversed and remanded for a new trial consistent with this opinion. | [
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Larson, J.:
Victoria Rodriguez, surviving wife of Candelario Rodriguez, appeals the trial court’s confirmation of the Director of Workers Compensation’s decision affirming the administrative law judge’s rulings in three consolidated workers compensation claims.
The first claim arose out of Candelario’s injury to his right knee while performing services on an irrigation well for his employer, Henkle Drilling & Supply Co. (Henkle), in September of 1985.
He experienced pain and surgery was scheduled for April of 1986, but he continued to work at Henkle. His treating physician, Dr. John Gilbert, diagnosed the injury to the knee as a degenerative joint disease and opined a 15 percent disability rating.
The second injury occurred in March of 1986. The drive shaft on an irrigation engine engaged, causing a co-worker’s wrench to strike and break Candelario’s left forearm. The fracture was reduced with a bone graft from Candelario’s left hip. Dr. Gilbert testified that Candelario’s arm fracture resulted in a 20 percent disability rating.
The administrative law judge made awards, which were approved by the Director and the trial court, based on two separate scheduled injuries of 15 percent loss of function of the right knee and 20 percent loss of function of the left arm.
On November 23, 1988, Candelario committed suicide. Victoria, his surviving wife, filed a workers compensation claim, contending the suicide was caused by a mental disturbance arising from the knee and forearm injuries. The administrative law judge ruled the suicide was not compensable. This ruling was affirmed by the Director and the trial court.
Victoria appeals in all three cases. We are considering them together on appeal.
These cases involve questions of burden of proof, negative findings, and sufficiency of evidence and issues of law. We first set forth the rules by which we are bound in review of workers compensation matters.
The claimant has the burden of proof to establish the right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K.S.A. 1991 Supp. 44-501(a).
“ ‘Burden of proof’ means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.” K.S.A. 1991 Supp. 44-508(g).
“In workers compensation cases, the scope of review by an appellate court is to determine whether the district court’s judgment is supported by substantial evidence.” Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987).
“An appellate court may substitute its judgment on questions of law but, on disputed issues of fact, the appellate court ‘must view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the findings of the trial court.’ [Citations omitted.]” Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989).
“A negative finding indicates that the party upon whom the burden of proof is cast did not sustain the requisite burden, and on appeal the negative finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice.” EF Hutton & Co. v. Heim, 236 Kan. 603, 610, 694 P.2d 445 (1985).
The scope of our review has not been changed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et. seq., which codified existing case law. Williams v. Excel Corp., 12 Kan. App. 2d 662, 664, 756 P.2d 1104 (1988).
The trial court did not err in awarding compensation based upon two scheduled injuries as opposed to a general bodily disability.
We first point out that the knee and arm injuries involved herein occurred prior to July 1, 1987. Any amendments made by the legislature effective after that date, including the addition of subsection (23) to K.S.A. 44-510d(a), are not applicable to the consideration of the compensation to be awarded for these injuries.
Victoria contends the trial court erred in failing to treat the separate and distinct injuries to the knee and forearm as one single injury to the body as whole. Her argument is based on K.S.A. 44-510c(a)(2), which states: “Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, shall, in the absence of proof to the contrary, constitute a permanent total disability.”
Both parties acknowledge this statute has been extended by case law to allow compensation for partial general disability of the body as whole under K.S.A. 44-510e. See Hardman v. City of Iola, 219 Kan 840, 844, 549 P.2d 1013 (1976); Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931).
Our court extended the rule of Honn and Hardman in Downes v. IBP, Inc., 10 Kan. App. 2d 39, 40-41, 691 P.2d 42 (1984), rev. denied 236 Kan. 875 (1985), by holding that simultaneous injury to both hands of the claimant, caused by repetitive use— not a single traumatic event, removed the injury from the schedule of 44-510d and allowed compensation for a general bodily disability.
The Kansas Supreme Court adopted the reasoning of Downes in Murphy v. IBP, Inc., 240 Kan. 141, 144-45, 727 P.2d 468 (1986), by holding that simultaneous aggravation to both arms and hands through repetitive use removes the disability from a scheduled injury and converts it to a general bodily disability. This was allowed even though the injuries did not manifest symptoms simultaneously. The fact that the aggravation occurred simultaneously was sufficient to turn the scheduled injuries into a general bodily disability.
Victoria attempts to bring herself under the umbrella of these decisions. She cannot do so because of the factual basis for the claims.
It is clear in this case that there were two isolated instances approximately six months apart which caused traumatic and sudden injury to separate and distinct scheduled members of Candelario’s body.
Victoria’s attempts to overcome this clear distinction by arguing that Candelario’s knee injury continued to degenerate and was aggravated simultaneously by the injury to his arm are not supported by the medical testimony.
Dr. Gilbert testified that Candelario did not report any aggravation of the injury to his right knee by the 1986 accident to his forearm. He also testified the forearm and knee injuries were separate incidents. The factual evidence does not show simultaneous aggravation. The two injuries were the result of totally independent, separate, and distinct traumatic occurrences which cannot be tied together to produce an award of general bodily disability.
In Crouse v. Wallace Manufacturing Co., 207 Kan. 826, 486 P.2d 1335 (1971), the claimant sustained a non-industrial injury to his left hand with resulting permanent partial disability. Seven years later, the claimant sustained a industrial injury and permanent partial disability to his right hand. The claimant attempted to make the same argument as Victoria does herein. Honn was distinguished because it involved simultaneous injuries where in Crouse there were separate scheduled injuries. The court held:
“The provisions of the workmen’s compensation act are clear and limit benefits in instances of partial disability to scheduled members of the body to the amount provided by the schedule. When a specific injury and disability is a scheduled injury under the workmen’s compensation act, the benefits provided under the schedule are exclusive of any other compensation.” 207 Kan. 826, Syl. 11 3.
The trial court was correct, as a matter of law, in refusing to turn the two separate injuries into a general bodily disability. The awards for scheduled injuries were properly entered.
The trial court did not err in refusing to award compensation for a hip injury caused by the surgical harvesting of a section of the hip bone for transplanting into claimant’s forearm.
Victoria contends Candelario was entitled to a permanent partial disability award by virtue of the fact the bone graft material was taken from the left iliac crest in his hip in order to repair the left forearm.
Victoria claims the evidence is sufficiently similar to that of Quinones v. MBPXL Corp., 10 Kan. App. 2d 284, 285, 697 P.2d 891 (1985), to require the allowance of a general bodily disability. In Quinones, a claimant sustained an injury to his right arm and in the course of treatment a nerve was transplanted from his left leg. This resulted in an area devoid of feeling, and our court held the loss of sensation made the worker less employable since he could not feel cold, heat, or any sensation of pain.
Candelario testified in his deposition on October 24, 1988, to suffering pain and discomfort from the donor site, which was aggravated by tight underwear and the belt line on his trousers.
Dr. Gilbert testified this procedure was normal and that the claimant did not suffer any physical restrictions. Dr. Gilbert further testified the claimant did not minimize his complaints. There was no evidence that the claimant suffered any impairment or permanent injury as a result of the bone graft.
The trial court ruled in this case that there was insufficient evidence to support any finding of disability. This is a negative finding, and there is no uncontroverted evidence or showing of prejudice or malice toward the finder of facts. We will not set aside this negative finding. See Box v. Cessna Aircraft Co., 236 Kan. 237, 246, 689 P.2d 871 (1984).
The trial court properly found that Candelario’s suicide was not compensable.
K.S.A. 1991 Supp. 44-501(d) provides:
“If it is proved that the injury to the employee results for the employee’s deliberate intention to cause such injury, ... or substantially from the employee’s intoxication, any compensation in respect to that injury shall be disallowed. The employer shall not be liable under the workers compensation act where the injury, disability or death was substantially caused by the employee’s use of any drugs, chemicals or any other compounds or substances, including but not limited to, any form or type of narcotic drugs, marijuana, stimulants, depressants or hallucinogens.”
While the literal application of the above wording would preclude the award of compensation, most jurisdictions in the United States have judicially created an exception to such a harsh rule.
The efforts of diligent counsel and our research have revealed only one Kansas workers compensation case, Gardner v. Ark Warehouse Co., 148 Kan. 190, 80 P.2d 1066 (1938), where a suicide was claimed to be compensable. Gardner was decided on the narrow issue that no questions of law were presented for review and is without precedential assistance to us in this case.
A brief history of the development of the current majority rule is found in 1A Larson’s Workmen’s Compensation Law § 36.10, p. 6-162 (1990):
“At one time the field was dominated by the voluntary wilful choice test, sometimes called the rule in Sponatski’s Case [, 220 Mass. 526, 108 N.W. 466 (1915)], under which compensation in suicide cases was not payable unless there followed as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy without conscious volition to produce death. This doctrine was gradually displaced as majority rule by the chain-of-causation test, which found compensability if the injury caused the deranged mental condition which in turn caused the suicide.”
The excellent annotation “Workmen’s Compensation — Suicide,” 15 A.L.R.3d 616, § 5, p. 631 (1967) defined the chain-of-causation rule as
“where the injury and its consequences directly result in the workman’s loss of normal judgment and domination by a disturbance of the mind, causing the suicide, his suicide is compensable. This rule rejects the tort liability concept of fault (which stresses the independent intervening cause), and the criminal-law standard of insanity (which requires that the person not know what he is doing), substituting therefor the ‘chain-of-causation’ or ‘but for’ test and the requirement of an uncontrollable ‘compulsion’ to commit suicide.”
In attempting to reduce problems of causation to its simplest terms, Professor Larson states:
“Discussion of the suicide defense is simplified, however, by the fact that, whatever the approach taken, the ultimate rule of law appears to be the same. The issue boils down to one of proximate versus independent intervening cause.” 1A Larson’s Workmen’s Compensation Law § 36.10,
p. 6-161.
All of the parties to this appeal are in agreement that Kansas should adopt the chain-of-causation test, under which the following questions are raised:
(1) Was there initially a work-related injury as defined in K.S.A. 1991 Supp. 44-501(a)?
(2) Did the work-related injury directly cause Candelario'to become dominated by a disturbance of the mind of such severity as to override normal rational judgment?
(3) Did this disturbance result in Candelario’s suicide?
These are the same issues framed by the Ohio Supreme Court in Borbely v. Prestole Everlock, 57 Ohio St. 3d 67, 565 N.E.2d 575 (1991), and the Pennsylvania Supreme Court in Globe Sec. Systems Co. v. W.C.A.B., 518 Pa. 544, 544 A.2d 953 (1988).
In Matter of Death of Stroer, 672 P.2d 1158, 1161 (Okla. 1983), the Supreme Court of Oklahoma discussed the chain-of-causation test in this manner:
“Although 85 O.S.1981 § 11 provides that benefits are not allowable for an employee’s intentionally self-inflicted injury, suicide does not automatically preclude compensation. . . . The majority of jurisdictions whose workers’ compensation statutes contain an exclusion for wilful or intentional injury have adopted the chain of causation test as the criterion for interpreting the term ‘wilful’, ‘purposeful’ or ‘intentional’. This standard best reflects the socio-economic purpose of the Workers’ Compensation Act.
“Under this rule, an employee’s death by suicide is compensable if the original work-related injuries result in the employee’s becoming dominated by a disturbance of mind directly caused by his/her injury and its consequences, such as extreme pain and despair, of such severity as to override normal or rational judgment. The act of suicide is not an intervening cause of death and the chain of causation is not broken in cases where the incontrovertible evidence reflects that, but for the injury, there would have been no suicide .... The chain of causation rule places the burden on the claimant to prove by a preponderance of the evidence that there was an unbroken chain of causation between the compensable injury, the disturbance of mind, and the ultimate suicide.” (Emphasis added.)
We approve the adoption of the chain-of-eausation test in Kansas to determine whether the suicide of a worker may be compensable. It then becomes necessary to determine if the legal principles set forth above were properly applied.
The respondent and the Fund argue that the claimant failed to prove Candelario suffered from a mental disturbance or, if there was a mental disturbance, that it was caused by the work injuries. Victoria argues vigorously that the trial court erroneously required proof that the injuries were severe and extreme rather than that disturbance of the mind was severe and extreme.
The facts as viewed by the claimant differ greatly from the contentions of the respondent and the Fund.
Victoria claims the evidence showed Candelario was a man in constant physical pain, who felt worthless because of his inability to work, who underwent radical mood swings and personality changes due to his suffering, and who sank into depression, despair, and hopelessness culminating in suicide. This evidence primarily came from family members, but included opinions of Dr. Jeffrey Lane and Dr. Leslie Ruthven, who performed psychological autopsies on Candelario.
There was other evidence which strongly suggested that factors other than Candelario’s injuries brought him to suicide. He was experiencing severe marital difficulties. His wife had left him on two occasions during the final six weeks of his life. The last time was 13 days prior to his death when Victoria had gone to Texas to see her mother because Candelario wanted to kill her, himself, and their daughter.
On the day of his suicide, Candelario telephoned Victoria, begged her to return the next day so they could be together on Thanksgiving, and threatened to kill himself if she did not do so. Victoria said she would return two days later. The parties became angry and Victoria hung up. Less than two hours later, Candelario called for Victoria again and was extremely upset when told she was not there. His son’s girlfriend testified he was extremely agitated and immediately thereafter took his own life.
A KBI investigation revealed Candelario had a blood alcohol concentration of .18 and had cocaine in his blood at the time of his death. Testimony showed Candelario had a long-term alcohol, problem and had previously used threats of suicide in attempting to manipulate his family.
The respondent and the Fund’s psychological expert, Dr. T.A. Moeller, questioned the validity of psychological autopsies and opined there was an insufficient basis upon which to determine the cause of the suicide.
The trial court in its opinion stated:
“[I]t is clear that Mr. Rodriguez sustained severe pain as a consequence of his two previous work-related injuries, also that he acted depressed and despondent. The troublesome inquiry, however, suggests that the cause of his mental state is unclear. The record reflects that he also incurred marital and family problems to the extent that his wife and children left the home. These problems appear to be disassociated to his previous injuries and had persisted throughout his marriage. In addition, alcohol and controlled substances entered into Mr. Rodriguez’s life, both of which were found in his blood subsequent to his death. Alcohol in particular had continued to be a major problem for Mr. Rodriguez and predated the injuries sustained while employed by respondent.
“The Court in light of the preceding findings, together with the nature of the psychological autopsies of the experts, the questionable objectivity, and lack of a preponderance of the evidence establishing a direct causal connection between his previous injuries and his suicide, must conclude that the claim in this instance was properly denied. This is not to say that such previous injuries and subsequent associated pain and distress was not a factor; however, contemplated by the rule, the evidence must show it to be of such an extreme and of such severity as to dominate Mr. Rodriguez’s mental state as to be considered a disturbance of the mind. This the evidence failed to do.”
These are negative findings. Our review of the record clearly shows the trial court was justified in finding the claimant failed to sustain the requisite burden of proving the chain of causation to make the suicide a compensable event.
There was also substantial evidence the suicide was caused by a myriad of factors other than a mental disturbance arising from the injuries. Much of the direct evidence showed that the suicide resulted from the effects of alcohol, drugs, and marital discord.
We disregard as improvident and harmless the statement of the trial court concerning the fact Candelario was not employed at the time of his death as being any factor in the decision regarding whether the chain-of-causation test was met. The trial court’s opinion properly hinges the suicide claim back to the on-the-job injuries. Its decision was not reached based on an incorrect legal premise.
We do not deem it necessary to attempt to distinguish or harmonize the large number of cases from other jurisdictions cited by both sides. They have all been considered as have all other contentions of the claimant and are not found to affect our decision.
The opinion of Dr. T.A. Moeller was properly considered.
An inordinate part of claimant’s brief is directed to a claim that it was reversible error for the administrative law judge and trial court to consider the testimony of.Dr. T.A. Moeller, a professor of clinical psychology. All of these contentions are without merit.
The admission of expert testimony is a matter within the discretion of the trial court. Hudson v. City of Shawnee, 246 Kan. 395, Syl. ¶ 10, 790 P.2d 933 (1990). The Kansas Supreme Court in Box v. Cessna Aircraft Co., 236 Kan. at 243-44, in discussing the admission of evidence in a workers compensation case, said: “The rules of evidence, K.S.A. 60-401 et seq., are not applicable in workers’ compensation proceedings. [Citations omitted.] The admissibility of evidence is more liberal in compensation cases, not more restrictive.”
Expert testimony may properly be admitted to challenge the scientific theory and methodology which underlie another expert’s opinion. See e.g., State v. Hodges, 241 Kan. 183, 185-89, 734 P.2d 1161 (1987).
The four allegations of error made by the claimant have been considered. No abusé of discretion was shown in allowing the testimony of Dr. Moeller to be considered by the administrative law judge and the trial court.
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Elliott, J.:
Lawrence Presbyterian Manor, Inc., (Manor) appeals the Board of Tax Appeals’ (BOTA) denial of an ad valorem tax exemption under K.S.A. 79-201b Fifth.
We reverse.
The following short factual history seems to be undisputed: The Manor is a Kansas nonprofit corporation dedicated to providing housing and associated services to the elderly. Its five-story building was completed in late 1976, having been constructed with private donations and industrial revenue bonds. The original building contained apartments for residents, a chapel, dining and meeting rooms, and a health center. In 1982-83, the Manor pur chased adjoining land and constructed duplexes for residents desiring more independent living arrangements.
The Manor charges residents an entrance fee and, for those living in the apartments, a monthly occupancy fee. Additionally, residents are charged a daily fee should nursing care be required. Residents living in the duplexes pay a life use fee, 80% of which is amortized over a 15-year period and refunded should a resident die or move. Duplex residents also pay monthly maintenance fees and daily fees for nursing care if required. The Manor maintains a “Good Samaritan” fund for residents who become financially unable to pay their full fees.
The Manor is operated by the governing body for the United Presbyterian Church in Kansas and Missouri. The governing body operates 13 similar homes for the elderly in those two states.
In 1984, the Manor filed for a tax exemption on the duplex additions pursuant to K.S.A. 79-201b Fifth; the original five-story building had been exempted from taxation because it had been constructed with industrial revenue bond proceeds. That industrial revenue bond exemption expired in 1986, at which time the Manor filed for a tax exemption on the original building and on a vehicle owned by the Manor. BOTA consolidated the two applications.
BOTA ruled the property should be exempted under K.S.A. 79-201 Ninth; exemption under 79-201b Fifth was denied.
Both the Manor and the County filed for rehearing and both filed for judicial review. The County claimed the Manor should not have been granted any exemption at all, and the Manor claimed it should have been granted exemption under 79-201b Fifth as requested.
The district court affirmed BOTA’s order, denying both parties’ claims on review.
The sole issue on appeal is whether the Manor satisfies the elements necessary for exemption under 79-201b Fifth.
The Merits
K.S.A. 79-201b Fifth exempts the following property used in providing housing for the elderly from all ad valorem taxes:
“All real property and tangible personal property, actually and regularly used exclusively for housing for elderly persons, which is operated by a corporation organized not for profit under the laws of the state of Kan sas ... in which charges to residents produce an amount which in the aggregate is less than the actual cost of operation of the housing facility or the services of which are provided to residents at the lowest feasible cost, taking into consideration such items as reasonable depreciation and interest on indebtedness and contributions to which are deductible under the Kansas income tax act; and all intangible property including moneys, notes and other evidences of debt, and the income therefrom, belonging exclusively to such corporation and used exclusively for the purpose of such housing.”
The parties agree that the Manor is a Kansas nonprofit corporation.
When considering an exemption to taxation, taxation is the rule and exemption, the exception. See Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 166, 786 P.2d 1141 (1990). Thus, on appeal, the Manor has the burden of rebutting the presumption of validity attaching to BOTA’s actions.
But while an agency’s interpretation of a statute should be given weight and consideration, final construction of a statute rests with the courts. As a result, we are free to make our independent construction of the meaning of K.S.A. 79-201b Fifth. See National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989).
A brief history of the evolution of the statute in question would include the following:
1. In 1965, our Supreme Court held a nonprofit home for the elderly to be tax exempt, even though most residents had paid an entry fee and were paying monthly charges. Topeka Presbyterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P.2d 802 (1965). In doing so, the court recognized that traditionally, special concern had been shown for the elderly (195 Kan. at 97) and recognized that relief of poverty is not a condition precedent to charitable assistance (195 Kan. at 98).
2. In 1973, the Supreme Court overruled Topeka Presbyterian Manor, holding that to be charitable, gifts to the needy must be made either free or at charges which are nominal. Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 278, 505 P.2d 1118 (1973).
3. Shortly thereafter, the Special Committee on Assessment and Taxation was asked to review state policy on property tax exemptions and to study property tax exemptions for special care housing as to uniformity and consistency. See Legislative Re search Dept. Memo to Special Committee on Assessment and Taxation, June 25, 1985.
That committee recommended legislation to exempt “such housing” when provided by a state-licensed, nonprofit corporation “when contributions to the corporation are deductible under the Kansas Income Tax Act, and payments by the residents as a group provided less than the total operating costs of the facility.” Legislative Research Dept. Memo, June 25, 1985, at 2.
4. K.S.A. 79-201b was enacted by the legislature in 1975. L. 1975, ch. 495, § 3.
The title of 79-201b does not make any mention of low-income elderly. It mentions only “housing” for elderly persons. K.S.A. 79-201b Fourth does mention housing for the elderly and handicapped of limited or lower income, where financing of the facilities was obtained under federal statutes.
By mentioning only housing for the elderly in the title of 79-201b, the legislature, at least impliedly, adopted the broader concept of charity espoused in Topeka Presbyterian Manor, 195 Kan. at 97-98.
The central question around which this appeal revolves is whether tax deductible contributions to the Manor should be included in revenues in determining whether “charges to residents” produce an amount less than the actual cost of operations.
The Manor argues in the negative; the County contends that the contributions should “clearly” be included in determining revenues.
Simply put, if contributions are included in the equation, the Manor loses; if they are excluded, the County loses.
We have several problems with the County’s position. First is the language of the statute itself. The granting/exemption clause of 79-201b Fifth does not talk in terms of revenues or net operating revenues. It speaks only of “charges to residents.” Had the legislature intended the result urged by the County, it could have clearly stated it meant “charges to residents plus tax deductible contributions.”
Second, the County urges the addition of the phrase “and contributions to which are deductible under the Kansas income tax act” following the alternative ground for exemption clause (lowest feasible cost) supports its argument for including contributions in the equation. We disagree.
We feel the legislature intended to treat the various nonprofit entities discussed in 79-201b in a consistent and uniform manner. We are unable to attribute an intent on the part of the legislature to treat adult care homes (K.S.A. 79-201b Second) and private childrens’ homes (K.S.A. 79-201b Third) differently than housing for the elderly (K.S.A. 79-201b Fifth) and group housing for mentally retarded persons (K.S.A. 79-20lb Sixth).
The pertinent wording of subsections Second and Third is as follows:
“charges to residents for services of which produce an amount which in the aggregate is less than the actual cost of operation of the home or the services of which are provided to residents at the lowest feasible cost, taking into consideration such items as reasonable depreciation and interest on indebtedness comma and contributions to which are deductible under the Kansas income tax.act.” (Emphasis added.)
The emphasized comma in subsections Second and Third is absent in the language of subsections Fifth and Sixth. With the comma in place, the flow of the language of the paragraph clearly reflects the apparent legislative intent to grant a tax exemption “when” contributions are deductible and when payments by the residents as a group provide less than the operating costs of the facility. See Legislative Research Dept. Memo, June 25, 1985, at 2.
Third is our concern for the impact of the County’s position in the real world of nonprofit organizations.
To be prudently operated, the directors of a nonprofit organization must ensure its continuing viability. In order to do that, the nonprofit organization must have a positive balance sheet. It must rely on contributions to offset the shortfall from “charges to residents.”
The County’s position — requiring total revenues, including tax deductible contributions, to be less than actual costs of operations — is simply unrealistic and would, in effect, deny tax-exempt status to virtually all nonprofit corporations running housing for the elderly. That cannot have been the legislature’s intent.
Accordingly, we hold that tax deductible contributions to the Manor are not to be included in figuring the amount produced by “charges to residents” in K.S.A. 79-201b Fifth.
The County contends, and the Manor agrees, that in determining the charge to residents/cost of operation equation, we should look at the entire 11-year life of the Manor. The Manor’s method of calculating the actual cost of operating the facility is not seriously disputed by the parties.
A review of the Manor’s financial statements shows that the Manor calculates its operational revenue (charges to residents) by totaling room and board charges, subtracting the amount residents are financially unable to pay, and then adding entrance fees and other resident service fees. This amount failed to cover the cost of operations in 8 of the individual 11 years the Manor had been in operation prior to BOTA’s decision (1977-88). The cumulative totals for the 11-year life of the Manor show a shortfall of some $411,000 of charges to residents compared with actual cost of operations.
The Manor has met its burden of establishing a tax exemption under K.S.A. 79-201b Fifth.
Because of our holding on the charge to residents/actual cost of operation issue, we need not address the alternative means of tax exemption (services provided to residents at the lowest feasible cost).
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Lorentz, J.:
This is an interlocutory appeal by the State of Kansas from the district court’s suppression of evidence in a criminal case charging Gary M. Ratley with one count of pos session of marijuana with intent to sell, contrary to K.S.A. 1991 Supp. 65-4127b, a class C felony.
On June 30, 1990, after being physically abused by her husband, Gary M. Ratley, Janet Ratley took her child and left the parties’ marital home for a “safe house.” She planned to return to the marital home to pick up various personal possessions and did so on several occasions. On July 3, 1990, she met with authorities at the Allen County Sheriffs Office and signed a written consent for the search of the marital residence.
In the early afternoon of July 5, 1990, Special Agent Thomas Williams of the Kansas Bureau of Investigation (KBI), along with four other KBI agents and two officers from the sheriffs department, conducted a warrantless search of the residence based on Janet’s written consent. During the search, 15 bags of marijuana were seized from inside the residence and approximately 19 cultivated marijuana plants were taken from the premises surrounding the residence. Gary was arrested later that same day. On the following day, Williams asked to talk to Gary. Gary indicated he did not wish to talk, and he was returned to the holding facility. A few minutes later, he returned and told Williams he wanted to talk. Following an explanation of his rights, Gary stated he understood them and then signed an “advice of rights” form and a “consent to waive rights” form. Gary subsequently confessed, entering into an agreement to tell the truth concerning his illegal activities in return for being charged with only one count of possession of marijuana with intent to sell.
On June 3, 1991, proceedings were held in district court on motions to suppress evidence, change venue, suppress the confession, and strike the information. The motions to change venue, suppress the confession, and strike the information were denied, and in a written order filed June 21, 1991, the trial court suppressed the evidence obtained from the consent search.
The State first contends the trial court erred in applying the wrong standard when it found Janet had abandoned the marital home by no longer occupying the premises jointly with Gary and therefore was not capable of giving a valid consent to search. In its argument the State suggests the correct standard is whether Janet had mutual authority or other sufficient relationship to the premises at the time she gave the consent to search.
< “[T]he search of property, without warrant and without probable cause, but with proper consent voluntarily given is valid under the Fourth Amendment.” United States v. Matlock, 415 U.S. 164, 165-66, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). “One of the exceptions to the requirement of a search warrant , is, a •search made with consent or waiver voluntarily, intelligently and knowingly given.” State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984). Here, neither party challenges, the consent as not being voluntarily, intelligently, or knowingly,given; The-issue is whether Janet had the authority to consent to the, search. ■
Recent United States Supreme Court cases appear to be decided on whether the third party had common authority- to consent, not .on whether , the third party jointly occupied the premises. •-.-,.
“[T]he consent of one who possesses common authority over premises or effects is valid as against the absent,, nonconsenting person with whom that authority is shared. ., . ..[W]hen the prosecution seeks to justify, a warrantless search by proof of. voluntary consent, it is not limited to proof that consent was'given by the defendant, but may show that permission to search was obtained from' a third party who possessed common authority over or other' sufficient relationship to the premises or effects sought to be inspected.” (Emphasis added.) Matlock, 415 U.S. at 170-71.; , . .
“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that- one of their number might permit the common area to be searched.” (Emphasis added.) Matlock, 415 U.S. at 171 n.7.
All.the .cases relied .on by. Gary to establish a standard that.the spouse must jointly occupy the residence were, decided prior to Matlock, except State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976). Those cases involved consent by a non-spousal third party. Although post-Matlock, Jakeway also involved non,-spousal third-party consent and. is distinguishable on that basis. 221 Kan. at 146. The United States Supreme Court decision-, in Matlock, sets the standard for a valid third-party consent as “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” 415 U.S. at 171.
Historically and legally, the relationship between a husband and wife has been treated differently than that between non-spouses, i.e., landlord-tenant and homeowner-guest. See K.S.A. 23-201 et seq., K.S.A. 60-423, K.S.A. 60-428, and K.S.A. 60-1601 et seq. The difference in treatment of spouses as opposed to non-spouses stems from their unique relationship which gives them a common authority and sufficient relationship arising from the marital bonds affecting all aspects of their lives. While joint occupancy may be a factor to consider, it does not appear to be the overwhelming factor from which the common authority or sufficient relationship springs.
While the issue at hand has not been decided in Kansas, several post-Matlock cases in other jurisdictions have touched upon it. In United States v. Long, 524 F.2d 660 (9th Cir. 1975), the court upheld the validity of the estranged wife’s consent, noting that although she did not live with her husband, she had left because of her fear of him, had left items at the house, had a right to control the house as joint owner, and had exercised that right when she accompanied agents to collect her things. 524 F.2d at 661. The court’s decision appears to be based on her continued use of the property in that she had personal items there, had a joint right to control the property, and exercised her right of control when she retrieved items left there. 524 F.2d at 661 n.1. The fact that the agents went with her at the time she retrieved her possessions, rather than without the consenting party as is the case here, does not appear to be the controlling factor as Gary argues.
The court in State v. Madrid, 91 N.M. 375, 574 P.2d 594, cert. denied 91 N.M. 491 (1978), relying on Matlock, upheld the non-occupying spouse’s consent to search defendant’s residence based on the spouse’s sufficient relationship to the premises. 91 N.M. at 378. This sufficient relationship was based on the spouse’s right to occupy the premises, possession of a key to the premises which implied right of unlimited access, and use of the premises by leaving personal property there. In view of those facts, the defendant did not have an expectation of exclusive authority over the premises and his spouse’s consent was valid. 91 N.M. at 378. Also in Madrid, the court noted that the' spouse had left because of marital difficulties and, at the time of consent, had not lived with the defendant for approximately five months. 91 N.M. at 377.
In United States v. Crouthers, 669 F.2d 635 (10th Cir. 1982), the court upheld the consent of the non-occupying spouse although she had left the apartment several weeks earlier and was living with her parents. 669 F.2d at 642-43. The court found that evidence of the extent to which she had moved out was lacking and held that it was apparent that she had not abandoned her marriage or the apartment completely as she still had a key to the apartment. 669 F.2d at 643. The court’s decision was based on the inference that she still had control over the apartment, not on her jointly occupying it or her being there when the search was conducted. 669 F.2d at 643.
Sullivan v. State, 716 P.2d 684 (Okla. Crim. 1986), upheld the non-occupying spouse’s consent under Matlock’s common authority doctrine. In that case, the spouse moved out of the residence because of marital problems and alleged abuse. 716 P.2d at 686. The court found she had not abandoned the premises and still retained common authority over the residence because she retained a key to the premises, still had property in the house, and continued to exercise her common authority by her intent to return at a later time to remove her remaining property. 716 P.2d at 687.
In none of the foregoing cases did the court look at whether the spouse intended to return to live on the property. In those cases, the key was the existence of evidence of the spouse’s common authority or a substantial relationship to the premises at the time of consent.
Kansas cases regarding abandonment of the homestead seem to reflect this continuing common authority. It has been held that “[i]n order to constitute an abandonment of the homestead the abandonment must be voluntary. Absence of a wife from the home occasioned by the husband’s abuse does not constitute a voluntary abandonment of homestead rights.” Meech v. Grigsby, 153 Kan. 784, 787, 113 P.2d 1091 (1941). See In re Estate of Fink, 4 Kan. App. 2d 523, 528-29, 609 P.2d 211, rev. denied 228 Kan. 806 (1980).
Evidence at trial showed that Janet and her son were at a safe house at the time she gave consent and that the divorce pro ceedings involved battery and abuse claims. At the time of the June 3, 1991, proceeding, she did not want to give her present address because of protection and safety reasons. These facts tend to show that she did not voluntarily abandon her homestead rights or rights over the use pr access to the premises in question. Under Meech, the non-occupying spouse does not lose her common authority over the property. The sufficient relationship still exists.
There is also no evidence to show that Gary did anything such as changing locks, obtaining a restraining order, or removing Janet’s possessions from the property in an effort to restrict her common authority or relationship to the property.
After reviewing Matlock, cases from other jurisdictions, and Kansas case law, we hold that in Kansas, spousal consent to search cases should be approached on a case-by-case basis using a common authority or sufficient relationship test. As noted in the cases discussed here, factors to be considered in determining if common authority or a sufficient relationship exists for a valid consent to search are (1) the non-occupying spouse’s retention of a key to the premises, (2) the non-occupying spouse’s access to the property, (3) changed locks, (4) the length of time the non-occupying spouse is away from the premises, (5) whether the non-occupying spouse left personal property on the premises, and (6) the reason for the non-occupying spouse’s departure. In this case, Janet had access to the property, visited the premises to retrieve personal property she had left there, left the premises because of Gary’s actions, was not in any way discouraged or restrained from returning to the property, and had only been gone three days when the consent to search was given. That is sufficient evidence to establish that she retained common authority or sufficient relationship to the property to give a valid consent, and it was error for the evidence obtained from the search following that consent to be suppressed.
The State next contends that the search was valid under the apparent authority exception as set out in Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990):
“The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, then it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. [Citation omitted.]
“. . . As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged agáinst an objective standard: would thé facts available to the officer at the moment
. . . “warrant a man of reasonable caution in the belief ” ’ that • the consenting party had authority over the premises? [Citation omitted.]” (Emphasis added.) 111 L. Ed, 2d at 160-61.
According to the record, although Janet told Williams she was staying at the safe house on July .3, 1990, she never discussed with him her intention regarding returning to live on the property. At the time of the consent, Williams had no evidence that steps had been taken by the defendant to revoke Janet’s authority or that Janet had given up all use or authority over the property. Williams was informed that the Ratleys were married and that Janet was presently at the safe house, but he did not know whether she ever intended to return to the marital home.
Under the- facts herein; a reasonable person would be entitled to rely on Janet’s apparent authority to consent to the search. We, therefore, hold that Kansas adopts the “apparent authority” rule, which makes valid a consent to search when the facts available to .an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched.
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Gernon, J.:
The law firm of Wallace, Saunders, Austin, Brown & Enochs, Chartered, (Wallace-Saunders) brought suit against Louisburg Grain Company, Inc., (Louisburg) and K-M Land Company, Inc., (K-M) for payment of legal services. Here, Wallace-Saunders appeals the trial court’s decision striking its pleadings and ruling that Wallace-Saunders’ judgment lien did not have priority over other judgment liens held by Southwest National Bank, the City of Arkansas City, and the City of Hesston, the intervenors here.
For an understanding of this appeal, it is important to note, as counsel did at oral argument, that this is the eighth case to reach the appellate courts of Kansas and Missouri involving Louis-burg, K-M, A. Scott Anderson, and E. Sylvia Anderson. A history of the prior litigation and the relationship of the Andersons to Louisburg, K-M, and intervenors is detailed in City of Arkansas City v. Anderson, 243 Kan. 627, 762 P.2d 183 (1988), cert. denied 490 U.S. 1098 (1989).
We note that other cases involving the Andersons, Louisburg, or K-M, in which Wallace-Saunders appeared as counsel, and the years of such representation, include:
1986 59,514 City of Hesston, Kansas, and Southwest National Bank, Wichita, Kansas v. A. Scott Anderson, E. Sylvia Anderson, Herbert L. Ketterman, Grace Ketterman, and K-A Corporation
1987 60,184 City of Hesston, Kansas, and Southwest National Bank, Wichita, Kansas v. A. Scott Anderson and E. Sylvia Anderson, et al. v. K-M Land Co. and Louisburg Grain Co., Inc.
1987-88 60,359 The City of Arkansas City, Kansas, The City of Hesston, Kansas, and Southwest National Bank, Wichita, Kansas v. A. Scott Anderson, E. Sylvia Anderson, K-M Land Co., and Louisburg Grain Co., Inc.
1989 63,405 Federal Land Bank of Wichita v. A. Scott Anderson and E. Sylvia Anderson; and Donald K. Woolsey; Karl Alan Niebrugge and Joyce A. Niebrugge; City of Hesston; Southwest National Bank, Wichita, Kansas; The City of Arkansas City, Kansas; and the Board of County Commissioners of The County of Miami
1989-90 63,760 City of Hesston, Kansas, and Southwest National Bank, Wichita, Kansas, and City of Arkansas City, Kansas, and Southwest National Bank, Wichita, Kansas v. A. Scott Anderson, E. Sylvia Anderson, K-M Land Company, and Louisburg Grain Co., Inc.
1990 65,002 City of Arkansas City, Kansas, and Southwest National Bank, Wichita, Kansas v. Main Corporation, Herbert L. Ketterman, Grace Ketterman, A. Scott Anderson, and Sylvia Anderson
Here, the trial court was required to determine the validity of a judgment lien of Wallace-Saunders against Louisburg and KM. Wallace-Saunders filed suit on December 21, 1988. On December 27, 1988, an “answer” was filed on behalf of Louisburg and K-M, signed by A. Scott Anderson, President, which stated in its entirety, “Defendant admits that the monies are due as claimed by the Plaintiffs, but the Defendant has no cash to pay.” On January 4, 1989, a journal entry, noting that the defendants had Confessed judgment, was filed granting judgment in full to Wallace-Saunders.
In October of 1989, Wallace-Saunders sought to execute on real property in Miami County which was titled in the name of Louisburg Grain Company, Inc. After execution, Wallace-Saunders moved for an order of sale ánd sent notice of sale to interested parties, including counsel for the intervenors.
The intervenors had previously obtained a judgment against A. Scott Anderson in the amount of $585,000 in another county and had registered this judgment in Miami County on October 23, 1985. On March 26, 1986, the intervenors registered another foreign judgment in Miami County in the amount of $2,604,029.40 against A. Scott Anderson and E. Sylvia Anderson. The intervenors also obtained a judgment in Harvey County against Louisburg and K-M directly in the amount of $116,119. This judgment was registered in Miami County on May 15, 1989.
Louisburg is owned in its entirety by K-M, which, in turn, is owned in its entirety by A. Scott Anderson and his family members.
On January 12, 1990, the intervenors filed a motion to set aside the writ of execution and to deny an order of sale. The intervenors’ motion to set aside the writ of execution alleged that Louisburg and K-M were alter egos of A. Scott Anderson and that the intervenors had engaged in “extensive litigation” against Anderson and the companies over the preceding five years. The motion further alleged that Wallace-Saunders represented the Andersons and the companies in the litigation and that Wallace-Saunders’ judgment was collusive or fraudulent and should be set aside. The intervenors’ memorandum cited the Kansas Supreme Court decision in City of Arkansas City v. Anderson, 243 Kan. 627, and contended that five of the six badges of fraud identified in that decision were present in this dispute. The memorandum argued that the intervenors were entitled to priority over Wallace-Saunders’ judgment lien. Central to intervenors’ motion were two allegations:
“10. That this suit constitutes yet another attempt on the part of A. Scott Anderson to defraud the creditors of himself and of his alter ego, Louisburg Grain Company.
“11. That if plaintiff has ever acted as defendants’ attorney in this matter, or has given defendants legal advice with regard to same, that plaintiffs acquisition of a judgment lien against its own clients was collusive and improper and should be set aside.”
On May 21, 1990, the district court sustained the intervenors’ motion to set aside the writ of execution and ordered that a trial be set to determine the validity and priority of any judgment liens. The court stated in part: ;
“Certainly, there is an appearance of the indicia of fraud that exists in this case. First of all, the defendants have been the subject of litigation in other counties which have been reduced to judgment. The plaintiffs knew of this litigation and participated in the defense of the defendants in that litigation. It appears that the plaintiff could have known that the grain elevator, which is the subject of the writ of special execution, could be one of the last assets of the defendants. Also, it is clear that a confidential relationship exists or has existed between the plaintiffs and the defendants as a result of the representation of the defendants in the litigation conducted in other counties. Certainly, it is not normal for an attorney to sue for a fee, at least not in Miami County, Kansas. The culmination of all of this leads the Court to the conclusion that these matters warrant further scrutiny.
“Certainly, this Court can reach no final conclusion until it is presented with evidence; evidence of the nature of the transaction between plaintiff and defendant; evidence of the relationship of the defendants to A. Scott Anderson and Sylvia Anderson; evidence concerning the timing of the law suit; why it was filed in Miami County, Kansas; why the writ of special execution was not requested for several months after a consent judgement was granted.
“All of these matters must be determined after the Court finds the facts. Facts can be determined only with the presentation of evidence, the testimony of witnesses, examination of documents and all subject to the rigors of cross examination. It is the opinion of this Court that justice in this particular case calls for such a trial.”
The court, at a discovery conference, ordered:
“1: That Wallace, Saunders, Austin, Brown and Enochs shall produce all correspondence from A. Scott Anderson, E. Sylvia Anderson, K-M Land Company, Louisburg Grain Company and correspondence to A. Scott Anderson, E. Sylvia Anderson, K-M Land Company and Louisburg Grain Company from January 1, 1987 through the current date.
“2. That Wallace, Saunders, Austin, Brown & Enochs shall produce all time records, including timesheets and itemizations, from January 1, 1987 through the current date.
“3. That Wallace, Saunders, Austin, Brown & Enochs shall produce all written communications and notes relating to the employment agreement and contract between Louisburg Grain, K-M Land Company, A. Scott Anderson and/or E. Sylvia Anderson from January 1, 1987 through the current date.”
The court, on October 8, 1990, denied Wallace-Saunders’ motion for leave to file an interlocutory appeal on its motion for an in camera inspection. The basis for Wallace-Saunders’ objection to the discovery order was its contention that the “information which has been ordered to be produced is subject to the attorney-client privilege and work product doctrine.”
The intervenors countered by alleging that a prima facie case of fraud had been established on the part of the Andersons; that Wallace-Saunders had represented all of the Anderson interests and entities for many years, including the transfers set aside by the Kansas Supreme Court in 243 Kan. 627; and that despite Wallace-Saunders’ suit against Louisburg and K-M, Wallace-Saunders continued to represent the Andersons and their various entities in other counties.
The court further sustained the intervenors’ motion to strike Wallace-Saunders’ pleadings and further ordered that Wallace-Saunders’ judgment did not constitute a prior lien in time to any other lien on the real estate involved.
On appeal, Wallace-Saunders raises three issues:
1. The court erred by ordering production of documents subject to attorney-client privilege.
2. The court abused its discretion by striking Wallace-Saunders’ pleadings for failure to comply with court-ordered discovery.
3. The motion by the intervenors was not timely.
PRODUCTION OF DOCUMENTSMTTORNEY-CLIENT
PRIVILEGE
The precise issue presented by Wallace-Saunders is whether the attorney-client privilege is applicable to the discovery ordered by the court, given the facts and circumstances here.
K.S.A. 1990 Supp. 60-226(b) defines the general scope of discovery and provides in part:
“Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In general-. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . .”
K.S.A. 1990 Supp. 60-226(c) authorizes the trial court to issue protective orders limiting the scope of discovery.
K.S.A. 60-426 defines the attorney-client privilege and provides in part:
“(a) General rule. Subject to K.S.A. 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence are privileged, and a client has a privilege ... (2) to prevent his or her lawyer from disclosing it ... . The privilege may be claimed by the client in person or by his or her lawyer ....
“(b) Exceptions. Such privileges shall not extend (1) to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort . . . .”
The attorney-client privilege applies only to communications made to an attorney in his capacity as a legal advisor. State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985).
The intervenors argue that any communication between. Wallace-Saunders and the Andersons or Louisburg and K-M are not privileged because, when the law firm filed suit against Louisburg and K-M, it simply could not be acting in their behalf as their attorney and, further, that such communication is excepted out of the privilege under K.S.A. 60-426(b)(l). We agree.
The intervenors made a sufficient showing of fraud to justify some discovery. As the intervenors note, the Kansas Supreme Court
“recognized six badges or indicia of fraud. The badges or indicia of fraud are: (1) a relationship between the grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures.” City of Arkansas City v. Anderson, 243 Kan. at 632 (quoting Koch Engineering Co. v. Faulconer, 239 Kan. 101, 105, 716 P.2d 180 [1986]).
“ ‘[T]he concurrence of several badges of fraud are said to make out a strong case.’ ” Anderson, 243 Kan. at 633 (quoting Koch Engineering Co. v. Faulconer, 239 Kan. at 107).
Wallace-Saunders concedes that a relationship exists between its firm and the companies. Its counsel confirmed that the firm represented the Andersons and Louisburg in the previoús litigation and indicated the firm continues to represent Louisburg. This admission establishes that Wallace-Saunders was aware of the litigation against its clients. The third badge, insolvency of the companies, was not clearly established, although the trial court noted that the proven circumstances suggested its likelihood. The trial court also indicated the circumstances suggested the property in dispute was likely one of the last assets of the companies. The trial court also concluded that the transaction was consummated contrary to normal business procedures because fee collection does not ordinarily involve a lawsuit. In summary, the intervenors made a showing that five of the six badges of fraud could probably be established.
The United States District Court of Kansas has considered what degree of proof is required to invoke the “crime or fraud” exception of K.S.A. 60-426(b)(l). See In re A.H. Robins Co., Inc., 107 F.R.D. 2 (D. Kan. 1985). In Robins, the court concluded that a prima facie showing of fraud was required to invoke the exception. 107 F.R.D. at 8.
Wallace-Saunders maintains that any communications between Wallace-Saunders and K-M, Louisburg, and the Andersons were made in the course of its professional relationship and made in confidence. The court’s discovery order directs Wallace-Saunders to produce all written communication, timesheets, and correspondence “from January 1, 1987 through the current date.” Although broad and likely to encompass materials not relevant, given the history of the parties as documented in published cases and the prima facie case of fraud found by the court, we cannot conclude that the court’s order was an abuse of discretion.
Neither available authority nor the facts support Wallace-Saunders’ contention that all communications with the Andersons, Louisburg, and K-M were privileged.
“The rule has always been that communications between attorney and client are privileged when made in professional confidence. Communications not made in such confidence are not so privileged.” State v. Maxwell, 10 Kan. App. 2d at 63. (Emphasis added.)
The conflict of interest rules would appear to indicate that Wallace-Saunders could not act as the companies’ attorney regarding this suit to collect fees. MRPC 1.7 concerning conflicts of interest provides in part:
“(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
“(1) the lawyer reasonably believes the representation will not be adversely affected; and
“(2) the client consents after consultation.” (1990 Kan. Ct. R. Annot. 228.)
We conclude that Wallace-Saunders was not acting, nor could it act, as attorney for Louisburg and K-M when it sued them to collect fees and obtained a judgment. Therefore, we find that all communications are discoverable as ordered by the court. Further, the showing of the badges of fraud clearly justifies the discovery of all information relevant to the claim that the answer and confession of judgment by A. Scott Anderson on behalf of Louisburg and K-M was fraudulent or collusive.
SANCTIONS FOR FAILURE TO COMPLY WITH
COURT ORDER
Whether to sustain a motion to strike a claim is discretionary with the court. Vickers v. City of Kansas City, 216 Kan. 84, 91-92, 531 P.2d 113 (1975). The guidelines set forth by the Supreme Court in determining whether a court has abused its discretion under K.S.A. 60-237(b) are as follows: “ ‘[Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.’ ” 216 Kan. at 92.
K.S.A. 60-237(b)(2) contains permissible sanctions for failure to comply with a discovery order and provides in part:
“If a party . . . fails to obey an order to provide or permit discovery, . . . the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:
“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”
“[T]he trial court is vested with considerable discretion in the enforcement of its previously issued discovery orders and in the assessment of sanctions against noncomplying parties.” Vickers v. City of Kansas City, 216 Kan. at 90. However, the Kansas Su preme Court has indicated: “The dismissal of a lawsuit and its equally severe sanction of granting a default judgment, while appropriate in certain circumstances [citations omitted], should only be utilized as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end.” Burkhart v. Philsco Products Co., 241 Kan. 562, 576-77, 738 P.2d 433 (1987).
The Kansas Supreme Court has stated:
“ ‘[Wjhere a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court and the efficient administration of justice, the application of a stringent sanction is fully justified and should not be disturbed.’ [Citations omitted.]” Beal v. Rent-A-Center of America, Inc., 13 Kan. App. 2d 375, 379-80, 771 P.2d 553, rev. denied 245 Kan. 782 (1989) (quoting Williams v. Consolidated Investors, Inc., 205 Kan. 728, 733, 472 P.2d 248 [1970]).
The Supreme Court has noted: “Most of the cases in which a dismissal or a default judgment have been held proper sanctions involve parties who refuse or fail to follow a discovery order.” Burkhart v. Philsco Products Co., 241 Kan. at 578.
Here, Wallace-Saunders refused to comply with the court’s order compelling production of documents, claiming it was subject to attorney-client privilege. Wallace-Saunders claimed that some of the information sought was not related to the “pending” suit and, therefore, was not discoverable. Wallace-Saunders refused to produce any documentation related to the “pending” suit. This lack of response clearly was contrary to the court’s order.
Further, applying the holding in Burkhart to the facts here, the documents withheld would be dispositive to show the relationship of all parties and entities, i.e., whether Louisburg and K-M were alter egos of the Andersons, and whether Wallace-Saunders and the Andersons were involved in fraud and/or collusion. We are persuaded that the trial court’s decision was correct.
TIMELINESS
Wallace-Saunders contends the intervenors’ motion to set aside the writ of execution was not timely under K.S.A. 60-260(b).
K.S.A. 60-260(b) provides in part:
“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: ... (3) fraud (whether heretofore de nominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party .... The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. . . . This section does not limit the power of a court to . . . set aside a judgment for fraud upon the court.”
K.S.A. 33-102 governs the effect of fraudulent transactions and provides:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.” (Emphasis added.)
Wallace-Saunders contends the intervenors’ action was untimely because Wallace-Saunders’ judgment was obtained January 4, 1989, and the intervenors’ motion was not filed until January 12, 1990. Wallace-Saunders argues the intervenors’ action is barred by the one-year time limit of K.S.A. 60-260(b).
A careful reading of the statutes, along with the particular facts of this case, suggests that the intervenors’ action was timely.
First, K.S.A. 33-102 demonstrates a strong public policy to defeat fraudulent transactions. The language of the statute indicates such transactions “shall be deemed utterly void and of no effect.” K.S.A. 33-102. By its own terms, the statute applies to judgments or executions “made or obtained with intent to hinder, delay or defraud creditors.” K.S.A. 33-102. Second, K.S.A. 60-260(b) is arguably inapplicable because the statute specifies that it provides relief for parties but does not mention non-parties. Third, if K.S.A. 60-260(b) is applicable, it specifies that relief is available from “a final judgment, order, or proceeding.” (Emphasis added.)
In this case, the intervenors’ motion did not seek to set aside Wallace-Saunders’ judgment. Rather, the motion sought to set aside the writ of execution and to deny the pending request for an order of sale. The motion was filed approximately 2V2 months after Wallace-Saunders filed the request to issue a writ of special execution, well within the one-year time limit of K.S.A. 60-260(b) for relief from an “order.” The intervenors did not seek or obtain an order setting aside Wallace-Saunders’ judgment in violation of the time limits in K.S.A. 60-260(b). Instead, they sought to prevent efforts to execute upon or enforce the judgment, based upon their allegation that the judgment was fraudulent or collusive. We find that the intervenors’ action is permissible and timely under K.S.A. 33-102 ánd K.S.A. 60-260(b).
Affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In this habeas corpus case counsel for the petitioner and for the respondent agree upon the following facts which the record discloses. On June 16, 1934, the petitioner appeared in court after his plea of guilty to the offense of grand larceny and was sentenced to be confined in the state penitentiary at Lansing, at hard labor for a period of not less than five and not more than fifteen years and to pay the costs of his prosecution. There is no controversy about the validity of that judgment. The petitioner was not taken to the penitentiary forthwith, but was taken to the county jail and while there was guilty of malicious destruction of property consisting in part of the breaking of all the windows in the jail. The county attorney, on the date of the original sentence, to wit, June 16, 1934, had known that the petitioner had been convicted of a felony theretofore but had not at such time advised the court relative thereto. Afte? the misconduct in the jail occurred the county attorney caused the defendant to. be brought again before the court on June 18, 1934, which was during the same term of court, and on such occasion, for the first time advised the court of the prisoner’s- former conviction and of the petitioner’s conduct while he was confined in jail. As a consequence thereof,'the original sentence of June 16, 1934, was set aside and revoked .and the petitioner was sentenced for a term of not less than ten nor more than thirty years and to pay the costs of his prosecution. The petitioner contends that the second sentence was unlawful and void. Counsel associated with the office of the former attorney general, A. B. Mitchell, after making a full investigation of the facts in the case, conclude in their brief as follows: . . the sentence rendered by the district court on June 18, 1934, is null and void and we feel further that it is incumbent upon the state in a case wherein it finds that the facts and the law are in favor of the petitioner in writ of habeas corpus, to be frank with this court and admit it.”
Not only is there no dispute about the facts in the present case but also there is no dispute about the law which is applicable and controlling. The identical problem presented was passed upon by this court in the case of Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586. In the cited case the question before us was discussed at length in the opinion by Mr. Justice Harvey, now Chief Justice. The third paragraph of the syllabus thereof reads as follows:
“Defendant pleaded guilty to a charge of forgery in the second degree, for which our statute provides a punishment in the penitentiary of from' one to ten years. Because of evidence of one prior conviction of a felony the sentence was doubled, the judgment being that defendant be taken from the bar of the court to the county jail and thence to the penitentiary to serve the sentence. Three days later defendant, still being held in the county jail through no request or fault of his own, was again taken into court, additional evidence of his prior conviction was heard, the former sentence set aside, and he was sentenced to life imprisonment. Held, the later sentence was unauthorized and is void, and the sentence first imposed remains in force.”
The second sentence imposed upon the petitioner is void. We note again, however, that the first sentence is valid and that the maximum period provided for therein, to wit: “nor more than fifteen years” will not expire until June, 1949. This court is not concerned with whether the petitioner is entitled to parole at this time.. Our holding alone does not require that the petitioner be discharged forthwith from the custody of the respondent. The sentence imposed June 16, being a valid sentence, must stand and the writ must be denied. The petitioner must remain in the custody of the respondent until otherwise dealt with in compliance with the sentence of the trial court on June 16, 1934. He cannot be held, however, pursuant to the sentence of June 18,1934. It is so ordered. | [
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The opinion of the court was delivered by .
Wedell, J.:
This is an original proceeding in habeas corpus. Petitioner seeks his release from the state penitentiary on the ground he is unlawfully restrained of his liberty.
His petition for the writ, in substance, alleges: Petitioner was denied the right of counsel; the court refused to appoint counsel for him; he was denied a trial by jury; he was convicted upon hearsay evidence and was not sentenced by a judge.
The petition alleges each and all of the above facts are disclosed by the court records. To the petition is attached an uncertified copy of the journal entry of judgment and sentence for murder in the first degree. It does not bear the signature of the judge of the district court in which petitioner was sentenced.
The answer and return of the respondent, R. IJ- Hudspeth, warden of the Kansas state penitentiary, denies all of the allegations contained in-the petition except those specifically admitted. None is admitted. To the answer are attached certified copies of the following instruments on file in the office of respondent, to wit: The information, plea of guilty, journal entry of judgment and sentence; a written confession by petitioner of the murder describing in detail the manner in which the murder was committed and the motive prompting its commission (the confession was signed by five witnesses); a letter of the prosecuting attorney to respondent written at the time of petitioner’s commitment and a record of petitioner kept by the federal bureau of investigation.
Petitioner’s reply, in substance,- alleges: He was not assisted by counsel and the trial court did not offer to appoint counsel or permit petitioner to obtain counsel; the written statement of petitioner contained in respondent’s answer, if true, could only have been obtained by duress; the letter of the county -attorney written to respondent at the time of petitioner’s commitment is proof of duress and intimidation; the journal entry contained in respondent’s answer is not the same as the one petitioner obtained from the clerk of the district court on May 21, 1946.
In support of respondent’s answer affidavits are filed by the county attorney and by the person who was the clerk of the district court at the time of the prosecution and sentence. The affidavit of the county attorney, in substance, discloses: He remembered the case of the petitioner and the facts pertaining thereto; the written confession of petitioner was made voluntarily before him and other witnesses and without any threats, promises or coercion whatsoever (the signed statement concedes that to be true); the Honorable F. W. Boss, district judge at- the time petitioner entered a plea of guilty, is deceased; petitioner was fully advised by the court of his constitutional rights, including his right to counsel and that if he were unable to employ counsel the court would provide counsel for him; the statements of petitioner touching his denial of counsel and denial of trial by jury are totally untrue; petitioner voluntarily pleaded guilty and was sentenced on such plea; affiant does not now recall whether a separate journal entry was drafted, approved by himself and signed by the district judge; none can now be found in the files of the court but judgment was rendered by the district court as evidenced by the recitals shown at page 613 of journal No. 47 of the records of the clerk of the district court of Cherokee county, Kansas.
A certified copy of the journal entry is attached to the affidavit of the county attorney. It discloses petitioner entered a plea of guilty and was sentenced for 'murder in the first degree. It discloses petitioner appeared in his own proper person. Its recitals are silent with reference to any request for the appointment of counsel and with respect to an offer of the ¿trial judge to provide counsel for him if he desired it.
The affidavit of the person who was clerk of the district court at the time of the prosecution, judgment and sentence, in substance, discloses: He remembered the case on which petitioner pleaded guilty to the charge of murder; he knows that a journal entry was prepared and filed by the judge of the district court, the late W. F. Boss, and that the same was filed with the clerk of the district court and placed in the files of the court and later transcribed in the journal book; by inadvertence the name of the district judge was not copied into the journal; the original journal from which the journal entry was prepared is not in the files and for some reason has been lost.
A certified copy of the remarks of the trial court, as disclosed by the trial docket and furnished by the present clerk of the district court, reveals the following:
“May 24, 1922. Case called — Deft present — Information read. Deft asked to plead thereto — Pleads guilty to Murder in the- first degree — Deft asked whether he has any thing to say or any reason to give why sentence should not be pronounced on his plea of guilty — none given — Deft is thereupon sentenced to be taken, by Sheriff of Cherokee Co., Kansas and delivered to Warden of State Penitentiary, at Lansing, Ks., there to be confined at hard labor for and during his natural life for the crime of Murder in the first degree, to pay costs of prosecution. Remanded—
' “F. W. Boss, Judge.”
The burden is, of course, on the petitioner to prove the facts upon which he relies for his release by a preponderance of the evidence. (Bissell v. Amrine, 159 Kan. 358,155 P. 2d 413.) See, also, opinions in Downs v. Hudspeth and Crisp v. Hudspeth, both this day decided, ante, pp. 567, 575. In determining whether the writ should issue we shall give the allegations of the petition the same force and effect as if they were made in open court on oral examination or as if they were contained in petitioner’s deposition. The facts" upon which petitioner relies as being disclosed by the records themselves are not so disclosed. Furthermore, the allegations of his petition are directly and positively denied by evidence of the respondent. In determining whether the writ should issue we may completely ignore the written statement of confession signed by the petitioner'prior to judgment and sentence as well as the letter written to the warden of the state penitentiary by the county attorney at the time of petitioner’s commitment. Not only the affidavit of the county attorney, who prosecuted the action, but also the notes of the trial judge on his trial docket disclose petitioner desired to plead guilty. Reliable evidence also discloses petitioner was offered counsel by the district judge if he desired it.
This is an original action in this court. We think petitioner has not met the burden of proof with respect to the charge that he was denied counsel or that he was denied a trial by jury or that he was sentenced on hearsay evidence or that he was not sentenced by the judge of the district court of Cherokee county.
The fact a journal entry of judgment, in a case tried prior to the change in the criminal code in 1941, may recite defendant was without counsel is not proof he was depriyed of counsel. (Garrison v. Amrine, 155 Kan. 509,126 P. 2d 228, certiorari denied 317 U. S. 630, 63 S. Ct. 51, 87 L. Ed. 509; Hill v. Hudspeth, 161 Kan. 376,168 P. 2d 922.) At the time petitioner was sentenced (1922) our code did not require that the j ournal entry state the statute under which defendant was charged and pleaded guilty, or the statute under which he was . sentenced, as petitioner contends was necessary. (Crisp v. Hudspeth, this day decided, ante, p. 567.)
The writ is denied. | [
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The opinion of the court was delivered by
Pbager, J.:
This is a direct appeal in a criminal action in which the defendants-appellants, Larry D. Thompson and Michael Pennington, were tried by a jury and convicted of aggravated robbery (K. S. A. 21-3427) and aggravated sodomy (K. S. A. 21-3506). The defendants were also charged with kidnapping but a mistrial was declared on that charge when the jury was unable to agree on a verdict.
At the outset we must consider a motion filed by the state to dismiss the appeal of the defendant Larry D. Thompson. It is the position of the state that this court has no jurisdiction to hear the appeal because a timely notice of appeal was not filed within the time allowed by K. S. A. 22-3608. The record discloses that the defendant Thompson was convicted by a jury in the district court of Sedgwick county on May 5, 1975. Sentence was imposed on May 29, 1975. 22-3608 (1) provides in part that if sentence is imposecj, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence. The district court’s power to modify Thompson’s sentence expired on September 26, 1975, 120 days after sentence was imposed as provided by K. S. A. 21-4603 ( 2). The time in which Thompson could file a notice of appeal expired on October 6, 1975. A notice of appeal was filed by Thompson’s counsel, Chester Lewis, on December II, 1975, 66 days out of time. In his response to state’s motion Thompson’s counsel argues that the defendant Thompson was an indigent person and that, following his conviction and incarceration, an attorney was not appointed to pursue his appeal until December 21, 1975. It is undisputed that defendant Thompson was represented by counsel during the period in which an appeal could be taken. There is nothing in the record to show that defendant Thompson’s counsel did not provide him with proper representation. There is no contention by defendant that his counsel was negligent or derelict in his duties to defendant Thompson. Under the circumstances we must conclude that this court has no jurisdiction of Thompson’s appeal and that his appeal should be dismissed. The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to. Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. (State v. Mitchell, 210 Kan. 470, 502 P. 2d 850.) It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. (State v. Sims, 184 Kan. 587, 337 P. 2d 704; State v. Shores, 185 Kan. 586, 345 P. 2d 686.) Since the defendant Thompson failed to serve and file his notice of appeal by October 6, 1975, as required by the provisions of K. S. A. 22-3608 (1), this court is without jurisdiction to hear his appeal. The appeal of defendant Thompson is dismissed.
The appeal of the defendant Michael Pennington was timely filed and we will now proceed to determine the issues which he has raised in his statement of points. We must first examine the essential facts of the case. This action arose from an incident which occurred on the evening of January 6, 1975, in Wichita. The victim, Kevin McCune, had attended a party early in the evening and left for his home about midnight as a passenger in a friend’s automobile. Shortly after the drive began McCune ascertained that his friend was too intoxicated to drive and decided that he would walk home. The friend let him out of the car. After walking approximately one mile McCune was picked up by four persons in a car. The occupants in the car included defendants Thompson and Pennington, Judy McPherson, and a female named Michelle. There is some dispute as to whether McCune solicited the ride or was invited by the occupants. Prior to taking McCune home, Thompson, the driver, took Michelle to a house where she got out. Thereafter Thompson proceeded down a dirt road and stopped his vehicle. From this point on the testimony was hotly disputed.
The state presented evidence which indicated that Thompson stopped the car at a deserted location and at gunpoint obtained McCune’s jewelry, wallet, and suede coat. Following this McCune was forced to have oral sex with Pennington and Thompson and finally with Miss McPherson. It was McCune’s testimony that Thompson threatened to kill him if he did not cooperate. At this point a patrol car happened on the scene and intervened. One of the officers testified that he first observed Thompson and Mc-Cune in the back seat of the car where McCune was clad only in a knit shirt. Thompson was fully dressed. When the officer reached the car, McCune ran toward the police officer screaming that he had been sexually assaulted. After calming McCune the officers placed the defendants and Miss McPherson under arrest. The defendants in their testimony denied robbing McCune and, although admitting the sexual activities, took the position that all parties consented thereto. At the trial of the case two basic issues arose: (1) Whether the defendants robbed McCune of his coat and personal belongings and (2) whether the acts of sodomy committed on that occasion were consensual or forcible. The jury resolved these issues against the defendants and found them guilty of aggravated robbery and aggravated sodomy.
The first point raised on the appeal by the defendant Pennington is that the trial court erred in not suppressing the confession made by the defendant at the police station. The factual circumstances surrounding the taking of this confession were undisputed. Following the arrest of Pennington and Thompson at the scene, the arresting officer Vinroe informed them of their Miranda rights. Both of the defendants indicated that they did not want to make a statement. Thompson and Pennington were then put into officer Vinroes police car and driven to the police station. During the drive officer Forshee advised the defendants again of their Miranda rights. Both responded that they understood their rights and did not wish to make a statement. No further questions were asked by the arresting officers. The defendants were booked at approximately 6:00 a. m., January 7, 1975. At 9:10 a. m. on that date detective Fraipont interviewed Pennington and told Pennington that he would like to hear his side of the stoiy. Pennington was given a form containing his constitutional rights as well as a place to indicate waiver of these rights. Pennington read the form and initialed beside each right, indicating that he understood those rights and then signed the form. He then indicated that he would talk to the detective. Pennington told Fraipont that it was McCune who had the gun and forced Pennington to engage in homosexual activities. Pennington stated that he knew nothing of McCune’s jewelry or billfold but that McCune had given Miss McPherson his coat to sell for gasoline. Pennington then stated that the sexual activities were performed by mutual agreement and that no force was exerted on McCune.
The statement of Pennington was admitted into evidence at the trial following a Jackson v. Denno hearing. A motion to suppress the statement was overruled. Both defendants testified on their own behalf at the trial, each denied robbing McCune and, although admitting consensual sexual activities with McCune, denied that there was any force involved.
The defendant Pennington contends in substance that under the totality of the circumstances the trial court erred in not suppressing the defendant’s confession. Pennington argues that this statement was not voluntarily given and was the result of successive, coercive interviews by police officers. He contends that once he told the officer at the scene of the crime that he did not wish to talk, no further interrogation could thereafter take place. He further argues that the statement was involuntary because he had been denied food and further that his level of intelligence was so low as to make it impossible, as a matter of law, for him to knowingly, intelligently, and voluntarily waive his rights. At the hearing the state and the defendant stipulated that a psychiatrist would testify that Pennington had an I. Q. of only 68.
The scope of review of this court with regard to the admissibility of confessions has been stated many times. When a trial court, pursuant to the provisions of K. S. A. 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, and determines the statement was freely, voluntarily, and intelligently given and admits the statement into evidence at the trial, the supreme court on appellate review will accept such determination if it is supported by substantial competent evidence. (State v. Law, 214 Kan. 643, 522 P. 2d 320; State v. Kanive, 221 Kan. 34, 558 P. 2d 1075.) At the hearing on the motion to suppress, the state called as witnesses the two arresting officers and detective Fraipont. The defendant presented no evidence in opposition thereto except a stipulation that Pennington’s I. Q. was 68. We have no hesitancy in holding that there was substantial competent evidence from which the trial court could find that the defendant’s statement was freely, voluntarily, and intelligently given. It is clear that detective Fraipont with great care explained to Pennington his Miranda rights and he signed the form stating that he understood those rights. The defendant Pennington contends, however, that once a person is taken into custody and the Miranda warning given him, if that person states that he does not wish to make a statement, he cannot thereafter be interrogated by the police officers. The defendant maintains that since he advised the arresting officer that he did not wish to make a statement, any statement subsequently obtained by detective Fraipont was the result of coercion as a matter of law and hence was inadmissible into evidence. This court, when faced with a similar contention in State v. Law, supra, declined to adopt such a rule. The court recognized that law enforcement officers should not be permitted to attempt an in-custody interrogation and, if met by refusal, to return the defendant to jail, and then repeat the procedure periodically until a statement is obtained. The court stated, however, that the prohibition against continued interrogation after a refusal to talk does not invalidate a statement thereafter given where the right to remain silent has been voluntarily and knowingly waived at a later time. The same rule is recognized and followed in State v. Kanive, supra. It is equally applicable here. Detective Fraipont advised Pennington of his rights and gave him a written form which contained those rights. It was not a case where the defendant was continually badgered until he decided to talk. The evidence shows that he understood his rights and later gave a statement to detective Fraipont. There is no evidence in the record that the defendant ever demanded food during the seven hours prior to giving his statement. We also reject the contention of Pennington that due to his low level of intelligence he was incapable of voluntarily and intelligently waiving his right to remain silent. The cases relied upon by defendant Pennington to establish his position are distinguishable. (Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Davis v. North Carolina, 384 U. S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761; and Dover v. State, 227 So. 2d 296 [Miss.].) Those cases involved more extreme conditions of incarceration, lengthier interrogation, and more obvious coercion. The mental deficiencies of the defendant may be an important factor in determining whether or not a confession was voluntarily given. That fact alone, however, is not conclusive evidence on the issue. In the case now before us the trial court at the Jackson v. Denno hearing had before it evidence of Pennington’s low I. Q. and must be presumed to have considered this evidence. The trial court was in a better position to observe the demeanor and appearance of the defendant than is this court. Considering the totality of the circumstances as contained in the entire record we have concluded that there is substantial evidence to support the trial court’s finding that the confession of the defendant Pennington was freely, voluntarily, and intelligently given and that the same was properly admitted into evidence at the trial.
The second point raised by the defendant Pennington on this appeal is that the trial court erred in overruling the defendant’s motions to dismiss and for judgment of acquittal because the sodomy statutes, K. S. Á. 21-3505 and 21-3506, are unconstitutional. In this state nonforcible sodomy is a class B misdemeanor and is defined in K. S. A. 21-3505 as follows:
“21-3505. Sodomy. Sodomy is oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal. Any penetration, however slight, is sufficient to complete the crime of sodomy.”
The defendant Pennington in this case was charged with aggravated or forcible sodomy which is a class B felony and which is defined in K. S. A. 21-3506 as follows:
“21-3506. Aggravated sodomy. Aggravated sodomy is sodomy committed:
“(a) With force or threat of force, or where bodily harm is inflicted on the victim during the commission of the crime; or
“(b) With a child under the age of sixteen (16) years.”
The defendant’s constitutional attack upon the statute is multipronged and involves a number of constitutional provisions. The defendant attacks the constitutional validity of 21-3505 on the grounds that it discriminates against the rights of consenting homosexuals and thus violates their right of privacy created by the interaction of the First, Third, Fourth, Fifth, and Ninth Amendments of the United States Constitution, applicable to the states by virtue of the Fourteenth Amendment. It is further contended that 21-3505 constitutes a bill of attainder in violation of Article 1, Section 10, of the Constitution of the United States and is also an invalid exercise of police powers in violation of the Fourteenth Amendment by striking down a personal liberty or materially restricting its normal exercise by a homosexual and thus denies equal protection of the law. Reduced to its essence the defendant’s basic ground for reversal on this point is that the sodomy statute is invalid on its face for an unconstitutional overbreadth in that it prohibits private, consensual acts of adult persons in violation of the United States Constitution’s right of privacy as enunciated in Griswold v. Connecticut, 381 U. S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).
The state takes the position that the defendant was convicted of forcing another to engage in homosexual activities and therefore defendant has no standing to challenge the sodomy statute on the ground that it discriminates against consenting homosexuals. In our judgment the state is correct in its position. On a number of occasions this court has recognized the rule that unconstitutional governmental action can only be challenged by a person directly affected and such a challenge cannot be made by invoking the rights of others. (Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316; State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12; Groene v. State, 195 Kan. 740, 408 P. 2d 580; Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P. 2d 82; Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P. 2d 860; Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291.) None of our decisions involved sodomy statutes. Appellate courts in other jurisdictions have applied this general rule to constitutional challenges of sodomy statutes and have refused to consider constitutional attacks against consensual sodomy where the defendant is prosecuted for acts of forcible sodomy. We note for example, State v. Kasakoff, 84 N. M. 404, 503 P. 2d 1182; and Hughes v. State, 14 Md. App. 497, 287 A. 2d 299, which hold that where a defendant is convicted of forcible sodomy, he lacks standing to challenge the sodomy statute on the ground that it is unconstitutional in prohibiting private, consensual acts of adults. Here the basis of defendants argument is that because the statute is unconstitutional as it applies to consenting adults, it is unconstitutional as applied to him. But the defendant was not charged as a consenting adult. He was charged and convicted of forcible sodomy and under the circumstances we hold that the defendant lacks standing to challenge the constitutional validity of the sodomy statute on the basis asserted. The fact that the sodomy statutes, when applied to consenting adults, may impair the rights of others does not bestow upon the defendant the right to challenge them in this case. The issue of the constitutionality of the statute proscribing consensual sodomy (K. S. A. 21-3505) is not properly before us in this case and will not be considered on this appeal. We reserve any constitutional questions which might be involved in that situation.
The defendant also attacks the constitutionality of K. S. A. 21-3506 which covers the offense of aggravated or forcible sodomy. He first contends that this statute constitutes an invalid exercise of police power but cites no cases in support of that position. In the exercise of its police power a state has a right to enact laws to promote the public health, safety, morals, and welfare of its citizens. We have no hesitancy whatsoever in holding that acts of forcible sodomy committed by one citizen upon another may be declared to be a crime by our state legislature and that a statute making it a crime constitutes a legitimate and proper exercise of the state police power. Furthermore we do not accept defendant’s contention that 21-3506 constitutes an unconstitutional bill of attainder. A bill of attainder has been defined as a legislative act which inflicts punishment on named individuals or members of an easily ascertainable group without judicial trial. The three elements of a bill of attainder are specificity in identification of the individuals affected, punishment, and lack of a judicial trial. (United States v. O’Brien, 391 U. S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 [1968].) The aggravated sodomy statute 21-3506 does not contain the elements of a bill of attainder.
Finally the defendant contends that the aggravated sodomy statute is unconstitutional because it provides for cruel arid unusual punishment. The complaint here is that in Kansas forcible rape is classified as a class C felony while forcible sodomy is classified as a class B felony. Rape as a class C felony carries a maximum sentence of 20 years. Aggravated sodomy as a class B felony carries a maximum sentence of life imprisonment. In our judgment the difference in the maximum sentence to be imposed under each crime does not violate the constitutional provisions regarding equal protection of the law or cruel and unusual punishment. In classifying these crimes as class C and B felonies the legislature properly exercised its power to define and prescribe punishment for criminal offenses. (State v. Jones, 214 Kan. 568, 521 P. 2d 278.) We have concluded that the aggravated sodomy statute (K. S. A. 21-3506) is not unconstitutional for the reasons asserted by the defendant.
The third point raised by the defendant Pennington is that the trial court erred in failing to instruct the jury that a specific intent to deprive the owner permanently of the property taken in the robbery is an essential element of the crime of aggravated robbery. (K. S. A. 21-3427.) The instruction of the court as given required the state to prove as an element of the crime of aggravated robbery that the defendants Thompson and Pennington “unlawfully and wilfully” took property consisting of one coat, two rings, and one billfold. The court then defined the term “wilful” as meaning “intentional” as distinguished from accidental or involuntarily. By so instructing the jury the trial court clearly satisfied the requirement of State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022, that a general intent to commit the crime of robbery is an essential element of that crime.
The trial court’s instructions did not include as an element of aggravated robbery the specific intent to deprive the owner permanently of his property. We have concluded that such a specific intent is not an essential element of the crime of aggravated robbery as it is defined by K. S. A. 21-3427 (Weeks 1974) which became effective on July 1, 1970, as a part of the Kansas Criminal Code. The statute defines aggravated robbery as follows:
“21-3427. Aggravated robbery. 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.”
Robbery is defined in K. S. A. 21-3426 as follows:
“21-3426. Robbery. 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.”
There is no specific intent required beyond the general intent to commit the act of forcible taking. All that is required is an intentional taking of property from the person or presence of another by force or threat of bodily harm. It has long been the law of Kansas that when the commission of an act is made a crime by statute, without any express reference to any intent, the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act. (State v. Bush, 45 Kan. 138, 25 Pac. 614.)
At common law the crime of robbery as forcible larceny required an animo furandi, a specific intent to deprive the owner of the property taken, not temporarily, but permanently. Our former robbery statutes (K. S. A. 21-527 and 21-528 [Corrick 1964]) required a “felonious” taking as an essential element of robbery. The term “felonious” was defined as requiring an intent to deprive the owner not only temporarily but permanently of his property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner. (Guffey v. Casualty Co., 109 Kan. 61, 197 Pac. 1098; In re Mutchler, 55 Kan. 164, 40 Pac. 283.)
In enacting K. S. A. 21-3426 and 21-3427 (Weeks 1974) the legislature eliminated the requirement of a “felonious taking” and required only a “taking” of the property by threat or force. The language of the new statutes broadened the statutory crime of robbery to cover any taking of property from the person or presence of another by threat of bodily harm or by force. The requirement of a specific intent to deprive the owner permanently of his property was eliminated. It is sufficient under the present statutes if the taking is done with the general intent to commit the act of taking the property by threat of bodily harm or by force. For a thorough discussion of the problem in another jurisdiction see Traxler v. State, 251 P. 2d 815 (1952), where the Oklahoma Criminal Court of Appeals reached the same conclusion following a similar statutory change in the definition of robbery. It follows that the trial court did not err in failing to instruct the jury that a specific intent to deprive the owner permanently of the property taken is an essential element of the crime of robbery.
The final point raised by the defendant’s brief pertains only to the appeal of the defendant Larry D. Thompson and has not been raised on behalf of the defendant Pennington. Since the appeal of defendant Thompson has been dismissed by this court for want of jurisdiction, we do not deem it necessary or proper to rule on that point.
For the reasons set forth above the appeal of Larry D. Thompson is dismissed and in the appeal of Michael Pennington the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Robert C. Hornbeak was convicted by a jury of aggravated robbery in violation of K. S. A. 21-3427 in the district court of Sedgwick County, Kansas, on July 16, 1975, and was sentenced to imprisonment for not less than 10 years nor more than life, in accordance with K. S. A. 21-4501 (b). He appeals, citing as error the denial of his motion for a transcript of the preliminary hearing, the withholding of favorable evidence by the prosecution, the receipt in evidence of a “mug shot,” and the receipt in evidence of identification testimony based upon suggestive photographic and lineup identification. He also claims that the evidence was not sufficient to show that he was at the scene of the robbery.
The Carl Bell Market at 13th and St. Francis in the city of Wichita, Kansas, was robbed by four armed men on March 14, 1975. The manager testified that he was behind the meat counter when the four entered the store. He identified the defendant as the robber who pointed a small hand gun at him during the robbery. Defendant was also identified by a customer who had been sitting outside in a parked car when the four robbers entered the market.
The defendant claims that' it was error for the trial court to deny his motion for a transcript of the preliminary examination for his use during trial. John D. Clark, of the Wichita bar, was appointed to represent the defendant, and appeared for him during the preliminary examination and the subsequent trial. An information was filed in the district court on May 22, 1975. On June 13, defendant filed a motion for an order providing him with a transcript of the preliminary hearing “to assist this defendant during the trial of this matter.” Apparently the motion was submitted without argument and was denied by order entered June 20, 1975. Trial commenced on July 14, 1975, forty-five days after the preliminary hearing.
The defendant places primary reliance on the case of Britt v. North Carolina, 404 U. S. 226, 30 L. Ed. 2d 400, 92 S. Ct. 431 (1971). That case involved the failure of the state to provide an indigent defendant with a free transcript of the first jury trial, which ended in a mistrial. The second trial was conducted the following month before the same judge, with the same counsel, and the same court reporter. Counsel acknowledged on oral argument that die trial occurred in a small town; the lawyers and the court reporter were good friends; the reporter would at any time have read back to counsel his notes on the mistrial, well in advance of the second trial, if counsel had simply made an informal request. The court concluded that petitioner had available an informal alternative which appears to be substantially equivalent to a transcript. The court observed, however, that Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, requires a state, as a matter of equal protection, to provide indigent prisoners with the basic tools of an adequate defense, when those tools are available for a price to other prisoners, and that the state must provide an indigent defendant with a transcript of prior proceedings when the transcript is needed for an effective defense. Two factors are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. The opinion points out that the court below rested its decision not upon “particularized need,” but instead upon the second factor, the availability of adequate alternatives to a transcript.
We discussed Britt at length in State v. Kelley, 209 Kan. 699, 702, 703, 498 P. 2d 87. We held that in the light of Britt, it is proper for a trial court, in making its determination of necessity for a transcript of a prior proceeding, to consider the availability of alternative devices that would fulfill the same functions as a ‘transcript. Kelley was represented by the same counsel at preliminary examination and at trial. Full access to the reporters notes was available when needed. We held that this constituted a fair and adequate alternative, and that the 'trial court did not err in denying the motion for a free transcript.
Again in State v. Julian, 212 Kan. 169, 509 P. 2d 1123, error was alleged in the denial of a free transcript. Less than one month had elapsed between the preliminary hearing and the trial. Julian was represented in both actions by the same attorney. The defense failed to call the court reporter as a witness, to read his notes of the preliminary hearing, as suggested by the trial judge. We said:
“. . . [T]here is no absolute right to a transcript. The necessity for a transcript can be determined in the light of the availability of alternative devices which could fulfill the functions of a transcript. . . .”
We held that an adequate alternative was available and thus the trial court did not err in denying the request. We dealt with similar problems in State v. McVeigh, 213 Kan. 432, 516 P. 2d 918; State v. Greene, 214 Kan. 78, 519 P. 2d 651; and State v. Wheeler, 215 Kan. 94, 523 P. 2d 722.
Similarly, a claim of denial of equal protection for failure to provide a free copy of the transcript of the first trial was raised in State v. Jordan, 220 Kan. 110, 551 P. 2d 773. The second Jordan trial was conducted before the same judge, with the same counsel and court reporter, forty-five days after the first trial. The court reporter was available during the entire second trial and could have made portions of the first transcript available prior to trial if a request had been made by the defendant. We again noted that the trial court “may consider the availability of alternative devices that would fulfill the same functions as a transcript. . . . An indigent defendant in a criminal proceeding on proper showing of need is entitled to have a transcript of portions of previous trial proceedings prepared at state expense, subject however to a determination by the trial court that such transcript is necessary for the indigent to present his defense adequately.” (p. 113.) We noted that the reporter was generally available for consultation before and during trial and observed that the defendant made no showing that he was surprised or unduly hampered in conducting his defense at the second trial because of the absence of the transcript of the first. Under the circumstances disclosed, we found no abuse of discretion on the part of the trial court in denying the motion for a free transcript.
Britt, it seems to us, does not require the state to furnish every defendant with a complete transcript of all prior proceedings, whether prehminary examination or trial, upon request. The state must provide a transcript only when it is needed for an effective defense, and when reasonably efficacious alternative devices are not available.
In the case at hand the defendant had the same counsel at both the prehminary examination and the trial; only a short time elapsed between hearings; the court reporter was available, was called to testify, and read from her notes of the prehminary hearing.
The testimony with which we are concerned is that of Mr. Whitt, a prosecution witness. He was seated in an automobile, parked in the parking stall nearest the door through which the robbers entered the market. He made no identification on the date of the robbery, but approximately one week later he was shown five or six pictures by an officer from the Tulsa Police Department. He testified on direct examination that he identified two of the pictures as photographs of two of the men, one being the defendant. He remembered later that they were the ones he saw go into the store. He stated that his in-court identification did not depend upon the photographs.
His testimony at the preliminary examination was similar, to the effect that he had identified two of the men, including defendant Hombeak, from the photographs. He did say, however, that when he first looked at the picture of defendant Hombeak, he stated that he had seen him somewhere but he could not place him. He recognized him, and knew that he had seen him somewhere before.
The witness was cross-examined as to his prior testimony, and his earlier testimony was read to the jury by the court reporter. It thus appears that the defendant had everything he would have had with a transcript. Under the circumstances, the defendant had an effective alternative which was substantially equivalent to a transcript. We conclude that the trial court did not err in denying the motion.
Before we leave this matter, however, we think it well to fix guidelines for the court and counsel with regard to the furnishing of transcripts of preliminary examinations. Our statute, K. S. A. 22-2904, provides that the examining magistrate may cause the record of a preliminary examination to be made, and he should do so when a request is made by either the prosecuting attorney or by the defendant or his counsel. This statute requires the taking of a record, either by a court reporter or by electronic means (see rules relating to court reporters, No. 360, et seq., effective January 10, 1977) but it does not specifically provide for the transcription and distribution of a transcript from that record.
K. S. A. 22-4909, as amended by section 25 of chapter 163 of the Laws of 1976, relates only to transcripts necessary for the purposes of an appeal or other post-conviction remedy, and is here inapplicable.
K. S. A. 22-4507, as amended by section 111 of chapter 145 of the Laws of 1976, provides for the reimbursement of expenses reasonably incurred by an attorney appointed for an indigent, and thus provides a method whereby the indigent may secure a transcript of a preliminary proceeding or an earlier trial, when such transcript is needed for use at trial.
Appointed counsel should secure the approval of the trial judge in accordance with the rules of the board of supervisors of panels to aid indigent defendants. The application for a transcript need not detail the uses to which the transcript may be put, but the applicant should make known to the trial court, either in the motion or orally at the time the motion is heard, the primary reason why a transcript is requested. In the usual case where identity is challenged, for example, the motion should so state, and upon such a showing a transcript should be provided.
In those instances where the state secures a transcript, the original should be filed with the clerk of the court, thus making the transcript available to defense counsel. Where a request is made and initially denied, defense counsel has an obligation to renew the request upon discovery of additional information which would justify the request.
Defendant next contends that the state violated the Brady rule (see Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and State v. Kelly, 216 Kan. 31, 34, 531 P. 2d 60), in that the state failed to give the defendant a photograph which was taken by Wichita police on March 19, 1975, when Hornbeak was arrested for an offense not here involved. Defendant contends that this photograph would be exculpatory because it would show that he had a moustache and a goatee, and that this would be in direct contradiction of one of the witness’ testimony that the defendant was clean shaven at the time of the robbery. The photograph would be exculpatory only if it revealed that at the time it was taken, approximately five days after the robbery, the defendant had such a long growth of facial hair that it could not have been grown in five days.
The evidence which the state withheld in Brady was not known to the defendant. His attorney had asked the prosecution to allow him to examine all statements given by a co-defendant, Boblit. Several were produced; one was withheld. It contained evidence critical to Brady’s defense. Brady did not know of that statement until after he had been tried, convicted, and sentenced, and after his conviction was affirmed. Brady v. Maryland, supra, p. 84.
As is stated in United States v. Natale, 526 F. 2d 1160 (2nd Cir. 1976):
“ ‘The heart of the holding in Brady is the prosecution’s suppression of evidence’ favorable to the accused. Moore v. Illinois, 408 U. S. 786, 794, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706 (1972). The concept of ‘suppression’ implies that the Government has information in its possession of which the defendant lacks knowledge and which the defendant would benefit from knowing. . . .” (Emphasis supplied.) (pp. 1170, 1171.)
Similarly, in United States v. DeMarco, 407 F. Supp. 107 (C. D. California 1975), that court said:
“. . . The very purpose of Brady was to make clear that the due process clause compels the production of material not otherwise discoverable.” (Emphasis supplied.) (Footnote 2, p. 111.)
Also, the suppression or withholding of mere cumulative evidence is not violative of the rule; the evidence must be sufficiently material on the ultimate question of guilt or innocence to have played a determinative role in the outcome of the trial. United States v. Crow Dog, 532 F. 2d 1182, 1192 (8th Cir. 1976).
Hombeak knew of the “mug shot,” yet he made no request for its production during the trial. The first mention of that photograph came with the motion for a new trial. Where a defendant is aware of the existence of evidence and fails to request its production during trial, the prosecution cannot be said to have “suppressed” that evidence. Further, two lineup photographs of the defendant were taken about the same time as the “mug shot.” Both of these were in evidence and before the jury. Both showed the defendant to have some facial hair. The “mug shot,” therefore, would have been mere cumulative evidence. For these reasons we hold that no error is shown.
Defendant next contends that the trial court erred in receiving into evidence state’s exhibit No. 1, a “mug shot,” because the legend printed thereon carries the obvious implication that the defendant was either arrested or convicted of a crime prior to the robbery here involved. The exhibit was admitted into evidence without objection. The matter was not raised in the motion for a new trial, nor was this issue ever presented to the trial court. K. S. A. 60-404, frequently referred to as our contemporaneous objection rule, provides that a judgment shall not be reversed because of the erroneous admission of evidence unless there appears of record a specific objection to the evidence timely interposed. State v. Estes, 216 Kan. 382, 532 P. 2d 1283; State v. Holloway, 219 Kan. 245, 547 P. 2d 741. Further, an issue presented for the first time on appeal will not be considered by this court. Churchill v. State, 216 Kan. 399, 532 P. 2d 1070.
Defendant’s next claim of error relates to identification testimony. He contends that it was error for the trial court to allow witnesses to make an in-court identification after they had been subjected to prior photographic and lineup procedures which were impermissibly suggestive. The record is devoid of any objection on this ground to the testimony of the witnesses at trial, and it contains no motions to suppress the testimony. The matter was not raised in the motion for new trial, nor was it otherwise presented to the trial court. Defendant’s failure to object, to move to suppress, or to otherwise present this issue to the trial court precludes review, as provided by K. S. A. 60-404, previously discussed. And see Cook v. State, 220 Kan. 223, 552 P. 2d 985.
Finally, Hornbeak contends that the evidence was insufficient to show that he was at the scene of the robbery, and thus to support his conviction. Two witnesses identified him as one of the robbers, and placed him at the scene of the crime. We have held that it is sufficient evidence for the victim alone to testify as to the identity and presence of the defendant. State v. Greer, 202 Kan. 212, 215, 447 P. 2d 837. As we have frequently stated, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form a basis for a reasonable inference of guilt when viewed in the light most favorable to the state. State v. Beard, 220 Kan. 580, 552 P. 2d 900; State v. Jackson, 220 Kan. 675, 556 P. 2d 885.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Feomme, J.;
The defendant, John Henry Thompson, appeals from criminal convictions on two counts of aggravated robbery (K. S. A. 21-3427). Both counts arose from a robbery occurring at the 10th Street Jewelry Store in Kansas City, Kansas. William Boyice, Sr., the owner of the store, was robbed of jewelry and currency. William Boyice, Jr., the son, was robbed of a gold watch.
The robbery occurred in the afternoon of December 31, 1974. Two men entered the store armed with hand guns. One had his face partially obscured by a stocking cap and a turtle neck sweater. One of the robbers on leaving the store was heard to refer to the other as “Slim”.
The younger Boyice testified that earlier in the day while he was alone in the store two men entered the store to look at merchandise. He recognized one of them as “Slim” from Kansas City, Missouri. He had met him on several previous occasions. He spoke to “Slim” but was ignored. Boyice, Jr., further testified that he recognized this same man as being one of those who took part in the robbery.
Detective Whitmill was called and he investigated the robbery. He was given the above information. Whitmill later received an anonymous phone call advising him that one of the robbers who took part in the 10th Street Jewelry Store robbery went by the name of “Crazy John”. Putting together the three bits of information he had received, i. e., “Slim”, “Kansas City, Missouri” and “Crazy John”, he made a trip to the police department in Kansas City, Missouri, where a “moniker file” was kept on individuals that the department had investigated. An investigation of this file by Whitmill produced the information that the name “Crazy John” had previously been used in referring to a man by the name of John Henry Thompson, and Thompson was also known as “Slim”. Whitmill obtained a photograph of John Henry Thompson together with four additional photographs of other individuals. He presented these to both Boyice, Sr., and Boyice, Jr. The picture of John Henry Thompson was identified as that of one of the robbers. Thereafter defendant appeared in a lineup with others and he was identified by Boyice, Jr. . At the trial the defendant was identified by both Boyice, Sr., and Boyice, Jr.
The defendant relied on a defense of alibi. The only issue at the trial was identification. The jury returned a guilty verdict within thirty minutes after retiring to consider the evidence.
After reviewing the record we are convinced there was ample evidence to establish identity and guilt beyond a reasonable doubt. The trial court was justified in overruling defendant’s motion for judgment of acquittal. See State v. Gustin, 212 Kan. 475, 510 P. 2d 1290.
The defendant’s next point concerns the anonymous phone call to Whitmill by which he was advised the robbery was committed by a man named “Crazy John”. At the trial the prosecuting attorney stated in substance that the state would show that Whit-mill received information from an informant implicating a person “Crazy John”. Defendant’s counsel promptly objected to such statement as hearsay and the court admonished the prosecutor not to state the substance of the phone call.
We note when Whitmill testified he merely stated that as a result of additional information received he went to Kansas City, Missouri, looking for the full name of a man known as “Crazy John”. He was not permitted to testify as to what the anonymous caller told him.
We believe the trial court’s action in limiting this testimony was proper. In State v. Murphy, 309 So. 2d 134 (La. 1975), it is stated:
“While it is not violative of the hearsay rule for a police officer to state that he made an arrest or a search and seizure as the result of information received or a complaint, the exception is limited to the statement of fact — for, whenever he is permitted to explain the nature of the information or complaint, he does not testify to a fact but to what someone else told him.” (p. 135.)
In State v. Long, 137 N. J. Super. 124, 348 A. 2d 202, the line dividing the admissible from the inadmissible is more clearly drawn. The New Jersey court explains:
“. . . This rule is not violated when ‘a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received.” ’ State v. Bankston, 63 N. J. 263, 268 (1972). Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct. Ibid.
“Where, however, the information as related to the jury directly or by necessary inference points to the guilt of the defendant, the testimony is inadmissible. Bankston, supra, 63 N. J. at 271; State v. Niesbbalski, 82 N. J. L. 177 (Sup. Ct. 1912).” (pp. 133, 134.)
The substance of the anonymous phone call when considered along with the evidence as to the contents of the “moniker file” by necessary inference would have pointed to the identity and guilt of the defendant. It was properly excluded for that reason.
An officer who has received an anonymous phone call advising that a crime under investigation was committed by a man identified as “Crazy John” should not be permitted to testify as to the substance of that communication, for the substance of the communication is inadmissible hearsay when it tends to identify the accused and establish his guilt.
Testimony concerning an anonymous phone call which tends to establish the identity and guilt of an accused does not fall in the same category as a police radio dispatch. The latter serves as an explanation of the officers action in proceeding to a particular location. See State v. Trotter, 203 Kan. 31, 453 P. 2d 93; State v. Hollaway, 214 Kan. 636, 522 P. 2d 364; and State v. Ritson, 215 Kan. 742, 529 P. 2d 90. Radio dispatch testimony is permissible merely to explain a sequence of events leading to action by an officer and it is not admissible to prove the truth of the matter asserted in the dispatch or to establish the identity and guilt of a named accused. Limited police dispatches are permissible under K. S. A. 60-460 and the cases cited above.
Now let us consider the propriety of the prosecutor’s remarks in his opening, statement. The statement in pertinent part was as follows:
“. . . Detective Whitmill will tell you about how he received an anonymous phone call; had a conversation with someone. As a result of that conversation, went to the Kansas City, Missouri Police Department, looking for any possible records on a person who goes by the nickname of Crazy John. In the course of that investigation, came upon this defendant’s name using— as a person who used the nickname Crazy John, . . .”
Since the substance of the call was not stated we believe that the statement was proper and the court was not in error in overruling defense counsel’s objection. The substance of the phone call if stated would have referred to inadmissible hearsay but the mere fact an anonymous phone call was received was proper to explain the actions of the officer. No error was committed with regard to the phone call.
Defendant’s final claim of error is directed to testimony and comments by the prosecutor concerning the contents of the “moniker file”.
In substance Detective Whitmill testified he checked the contents of this file looking for the name of “Crazy John”. From the file he learned the name was associated with a person named John Henry Thompson and that Thompson was also'known as “Slim”. He then testified he obtained a photograph of John Henry Thompson and included the same with four other pictures for photograph identification purposes. These were viewed by William Boyice, Jr., and he picked out the defendant’s picture.
The defendant objected to this testimony on the ground of hearsay and because the oral testimony was not the best evidence of the contents of the file. The trial court permitted the oral testimony saying it was not introduced for the purpose of proving the contents or to prove the truth of the statements in the file. The court further commented that it is common knowledge such a file contains considerable other information concerning past criminal records which would be highly prejudicial if the entire file were admitted into evidence. The court stated that the information obtained by Whitmill was only incidentally relevant to show a chain of circumstances leading to the picture of the defendant and as such it was purely on a collateral matter. The oral testimony was admitted.
Ordinarily the best evidence rule does not apply to writings collateral to the issue. In recognition thereof K. S. A. 60-467 in pertinent part provides:
“(a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds . . . (4) that the writing is not closely related to the controlling issues and it would be inexpedient to require its production,
It has generally been held that the best evidence rule does not apply to writings collateral to the issue. So, where the execution or existence of a writing, as distinct from its contents, does not form the foundation of the action, although it is material to the controversy, and where the purpose of the evidence is not to maintain or destroy any right involved in the action, the production of the writing may not be required, but its execution and existence may be proved by parol. A similar statement may be found in 32A C. J. S., Evidence, § 787, p. 109, where the notes -list nine states which have applied this rule. Our court in State v. Phillips, 175 Kan. 50, 55, 259 P. 2d 185, mentioned this rule with approval in permitting oral testimony concerning the files of a university. See also 29 Am. Jur. 2d, Evidence, § 449, p. 510.
However, this does not end our inquiry for if the evidence was hearsay it does not become admissible merely because it has been reduced to writing and placed in a police file. (City of Fort Scott v. Elliott, 68 Kan. 805, 74 Pac. 609.) Hearsay is not limited to oral testimony or statements and the general rule which excludes hearsay as evidence applies to written, as well as oral, statements. (29 Am. Jur. 2d, Evidence, § 498, p. 556.)
It would appear proper to permit Detective Whitmill to testify in a general way that he examined such a file and as a result obtained and submitted a picture of the defendant for identification. However, the contents of the file were made up of written statements supplied by other investigators covering their factual determinations from other investigations. The truth of such written statements, if in issue, could not be shown by the testimony of Whitmill. Such testimony would violate the defendant’s right of confrontation and cross-examination guaranteed by the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Constitution of the State of Kansas.
The bald statement by the prosecution that the testimony was not offered to prove the truth of the matter contained in the file does not make the contents of the file admissible. We should consider the circumstances under which this testimony was offered. One of the robbers had been referred to by his accomplice as “Slim”. Whitmill was permitted to testify the file in Kansas City identified John Henry Thompson both as “Slim” and as “Crazy John”. So the contents of the file were used to identify the “Slim” who robbed the jewelry store as being John Henry Thompson, and it would tend to establish guilt.
Although error was committed this does not end our inquiry. K. S. A. 60-2105 provides:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.”
The improper admission into evidence of secondary testimony inculpating the accused may be held harmless error where it appears the testimony erroneously admitted was merely cumulative of other overwhelming eyewitness testimony identifying the accused and had little, if any, likelihood of having changed the result of the trial. (State v. Mims, 220 Kan. 726, 556 P. 2d 387.
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. (Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. den. 386 U. S. 987, 18 L. Ed. 2d 241, 87 S. Ct. 1283; State v. Fleury, 203 Kan. 888, 457 P. 2d 44; State v. Mims, supra.)
In addition to the erroneous admission of the testimony of Whit-mill concerning the contents of the file, the defendant objected strenuously to comments on this testimony made by the prosecutor in closing argument. In summation the prosecuting attorney recited events leading to Whitmill’s examination of the file and stated that the “file said” the person that uses the nickname of “Crazy John” is John Henry Thompson and that Thompson is also known as “Slim”. The prosecutor went on to say that this was important because it tied into the testimony of William Royice, Jr.
Such an argument indicates the true purpose of the state in presenting the testimony. At the close of the state’s summation, the defendant made a request to admonish the jury to disregard both the testimony and the argument. The matter was argued out of the hearing of the jury and the court declined. The comments of the state in its closing argument were improper. We have held that an admonition for the jury to disregard similar improper statements may cure such errors. See State v. Watkins, 219 Kan. 81, 547 P. 2d 810; State v. Jones, 218 Kan. 720, 545 P. 2d 323; and State v. Warbritton, 215 Kan. 534, 527 P. 2d 1050. However, this was not done.
We note in general instruction No. 11 the jury was advised:
“. . . You should disregard questions which were withdrawn or to which objections were sustained. You should also disregard testimony and exhibits which the Court has refused or stricken. Remarks of counsel are not evidence and should not be considered as such.”
However, such a general instruction in this case cannot be held to cure such error in the admission of specific evidence if the evidence prejudiced the accused and prevented a fair trial. See State v. Netherton, 128 Kan. 564, 279 Pac. 19.
The question remaining is whether this court in its collective judgment can declare that these errors had little, if any, likelihood of having changed the result of the trial. We must hold such a belief beyond a reasonable doubt.
Since the testimony was inadmissible the prosecutor’s remarks thereon were improper, and the remarks would further weigh on the issue of prejudice. Misconduct on the part of a prosecutor in going outside the record or in commenting on inadmissible testimony in the heat of final argument must be so gross and flagrant as to deny the accused a fair trial in order to require a reversal. (State v. Murrell, 215 Kan. 10, 523 P. 2d 348; State v. Kelley, 209 Kan. 699, 498 P. 2d 87.) We have stated we will not require the granting of a new trial in the absence of a showing that the objectionable statements by the prosecutor were injurious to the defendant and likely to affect the jurors to his prejudice. (State v. Norwood, 217 Kan. 150, 535 P. 2d 996; State v. Murrell, supra.)
In the present case there was nothing to indicate ill will on the part of the prosecutor. His remarks were not so gross and flagrant as to deny the accused a fair trial. The trial court had ruled the testimony admissible and no objection was made to his final summation until after the case was submitted.
There was clear and convincing testimony by two eyewitnesses which identified the defendant. One witness had previous acquaintances with him including a meeting on the morning of the day on which the robberies occurred. The weight of such evidence is an important factor in determining whether the erroneous admission of other accumulative evidence is harmless error. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission of certain other evidence could not have affected the result of the trial, such admission is harmless error. (State v. Fennell, 218 Kan. 170, Syl. 2, 542 P. 2d 686.) In addition the jury in this case returned verdicts within 30 minutes after they retired to consider defendant’s guilt.
Considering all the facts and circumstances surrounding this issue of identification this court is of the opinion that the testimony erroneously admitted was merely cumulative. When this testimony and the comments of the prosecuting attorney on summation are considered they merely relate to a matter on which there was other overwhelming eyewitness testimony. There seems little, if any, likelihood that this could have changed the result of the trial. Accordingly we are able to declare the errors had little, if any, likelihood of having changed the result of the trial, and such belief is declared beyond a reasonable doubt.
For the reasons previously stated the judgment on these convictions is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought by the plaintiffs against the Board of County Commissioners of Morton county and others, as more fully set forth later, to enjoin an- election called for January 20, 1947, to relocate the county seat. The board of county commissioners and certain of the defendants demurred to the petition and also to an application for a restraining order and temporary injunction. A trial was had in the district court at which the demurrer was overruled and a temporary injunction was granted. From these rulings an appeal was perfected to this court. The appeal was heard on January 18, 1947, and was decided the same day. At that time a short opinion was prepared and filed {ante, p. 254) in which it was stated that later a fuller opinion would be prepared and filed.
In view of our conclusions hereafter stated, it is not necessary that we make an analysis of all the allegations of the petition. It is first noted that in the caption to the petition the defendants are named as the board of county commissioners of Morton county, and “E. M. Dean, John M. Hardwick, B. B. Rickart and Delmas Littell, individually and as County Commissioners of the County of Morton.” In the petition it is alleged that Morton county has a population of more than two thousand people, and that the county seat has been located at Richfield for more than eight years consecutively, and that there have been erected at the county seat 'for county purposes buildings costing more than ten thousand dollars; that the plaintiffs are residents, electors and taxpayers of the county and bring the action on their own behalf and on behalf of other residents, electors and taxpayers; that defendants Hardwick and Dean are duly elected, qualified and acting county commissioners for the second and third commissioner districts and that defendant Littell is. the duly appointed, qualified and acting commissioner of the first commissioner district; that in December, 1946, petitions were presented to the board of county commissioners to call an election to remove the county seat to Elkhart, and various claimed defects in the petition are set forth; that the defendants Dean and Littell acting as the board of county commissioners made a finding that the petitions were insufficient, and the defendants Harwick and Rickart claiming to act as the board of county commissioners, when in fact Rickart was not in law or in fact a county commissioner, made a finding the petitions were sufficient and pursuant to such finding, made a purported order calling the election to be held January 20, 1947; that plaintiffs believe that Littell is the duly appointed, qualified and acting county commissioner, and that the order made by defendants Dean and Littell that no election be held, was the valid act of the board of county commissioners, and that plaintiffs believe that defendant Rickart acted without legal authority and was not de jacto or de jure a county commissioner of the county and that the action of defendants Hardwick and Rickart in purporting to call the election was not the act of the board of county commissioners, but if such purported order was the official act of the board of county commissioners of Morton county, the order was made without authority of law and in violation of G. S. 1935, ch.-19, art. 16. Then follow allegations that the election was called notwithstanding the insufficiency of the petitions presented to the board of county commissioners,-with lengthy allegations pertaining to lack of qualification of signers of the petitions and the sufficiency of the petitions, and other allegations that the election was not properly called under the provisions o"f G. S. 1935, 19-1613 to 19-1619, and that the list of qualified electors was not properly made as required by those sections of the statutes. A further allegation is that if not restrained the defendants will hold a purported election at the expense of the county, will attempt to canvass the returns and attempt to move the county records pursuant to such canvass, all of which will cause expense to the county and cause irreparable damage to the plaintiffs and to other taxpayers, citizens and electors of Morton county. Other allegations are not of present importance. The prayer was for a restraining order, for a temporary injunction and on final hearing for a’ permanent injunction enjoining the holding of the election.
As has been noted the defendants’ demurrer to the petition’ was overruled and a temporary injunction granted, and the appeal followed.
The only question necessary to be decided is whether the petition stated facts showing that plaintiffs could maintain the action. Although developed later two propositions suggest themselves, one being the right of plaintiffs to question the official composition of the board of county commissioners, and the other the right of plaintiffs to enjoin an election.
It has been noted that in the caption of their petition, plaintiffs denominate defendants Dean, Hardwick, Rickart and Littell as county commissioners. That there are only three members of the board of county commissioners need not be demonstrated. (See Kan. Const. art. 4, § 2; G. S. 1935, 19-202.) The allegations of the petition need not be repeated, but in essence, it is charged that Hard-wick and Dean are commissioners, and that Littell is a duly appointed commissioner, and that Rickart is acting as a commissioner, and it is contended that he is not a commissioner either de facto or de jure, and as a preliminary to the power of the board of county commissioners to act, plaintiffs attempt to question the official composition of the board. In support of their right to do so, they direct our attention to the provisions of G. S. 1935, 60-1121, as construed in Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611. In that case it was held that a taxpayer could maintain an action under the above provision of the civil code of procedure to enjoin the removal of a county seat where that removal was attempted to be made in obedience to an election held under an unconstitutional law and would result in the levy of a tax to provide county buildings and pay the expenses of the removal of the county seat. We shall not discuss the case at length but- shall merely point out that in the instant case there is no claim of unconstitutionality of- the statute under which the election is to be had. In that case the action was not one to question the official composition of the board of county commissioners, nor to enjoin an election. We here note that there was a second appeal in the above matter, our opinion being reported in Patrick v. Haskell County, 108 Kan. 141, 193 Pac. 1061, and it was there held:
“The acts of one who is county commissioner de jure or de facto are binding on all the people of the county, and his authority to act as a- de facto' officer cannot be questioned by anyone except the state.” (Syl. ¶ 3.)
Because of the reference to the Patrick case we here note that the question of the right of a private party to question the legality of the organization of a school district was considered in Oil & Gas Co. v. Board of Education, 112 Kan. 737, 212 Pac. 900, where it Was said:
“Plaintiffs place much reliance upon the ruling in Patrick v. Haskell County, 105 Kan. 153, 181 PaC. 611, but there the right of the plaintiff to maintain the action was not directly challenged. • * * , * A taxpayer- may avail himself of the injunction remedy to question the right to levy .or-enforce a tax because it is unequal or is excessive or that the levy was for an unauthorized purpose or because of irregularities in making the levy or' assessment, but he- cannot use it- to test the existence of a municipality either de jure or de jacto, which is functioning as a corporate entity under a valid law.” (1. c. 741.) -
The rule that a private person by virtue of being a citizen and taxpayer may not maintain an action to question the official capacity of a public officer or board, or the existence of a municipality, or the official composition of a public body, or to compel performance of a public duty, has been before this court in many cases. To attempt to cite all of these cases would unduly extend this opinion. In the early case-of Nixon v. School District, 32 Kan. 510, 4 Pac. 1017, it was held:
“A private person cannot, by virtue of being a citizen and tax-payer, maintain an action against a school district or its officers where the act complained - of affects merely the interests of the public in general, and not those of such private person in particular.” (Syl.).
The second edition of our reports, shows the following cases noted as an annotation to the above syllabus: McMillen v. Butler, 15 Kan. 62; State, ex rel., v. McLaughlin, 15 Kan. 228; Spencer v. Joint School District No: 6, 15 Kan. 259; State v. Comm’rs of Marion Co., 21 Kan 419; Reedy v. Eagle, 23 Kan. 254; Adkins v. Doolen, 23 Kan. 659; Crans v. Francis, 24 Kan. 750; C. B. U. Rld. v. Andrews, 30 Kan. 590, 2 Pac. 677; State, ex rel., v. Smith, 31 Kan. 129, 1 Pac. 251; A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281. Later cases expounding the rule' in its various applications are Clark v. Comm’rs of Montgomery Co., 34 Kan. 632, 9 Pac. 756; Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 40 Pac. 326; Chase v. Board of Directors, 55 Kan. 320, 40 Pac. 665; Gormley v. School Board, 110 Kan. 600, 204 Pac. 741; Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651; Elting,v. Clouston, 114 Kan.. 85, 217 Pac. 295; School District No. 38 v. Rural High School District, 116 Kan. 40, 225 Pac. 732; Euler v. Rossville Drainage, District, 118 Kan. 363,235 Pac. 95; Lyon County Comm’rs v. Bernheisel, 123 Kan. 204, 254 Pac. 371; Fortune v. Hooven, 133 Kan. 638, 2 P. 2d 142; Citizens Utilities Co. v. City of Goodland, 146 Kan. 172, 69 P. 2d 318; Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954; School District v. Shawnee County Comm’rs, 153 Kan. 281, 110 P. 2d 744; and see the various cases cited in the above.
In many of the above cases may be found discussions of exceptions to the rule, such as personal interest specific and peculiar to the plaintiff and not one shared with the community generally. In the petition in the case at bar no attempt is made to show any such specific interest, but to the contrary it is a class suit that so far as the pleading discloses, shows that each resident taxpayer and elector of the county is in the same position as every other one. We -need not discuss any exception.
Turning now to the question of-the right of the plaintiffs to enjoin the election, we direct attention to State, ex rel., v. Comm’rs of Wabaunsee Co., 36 Kan. 180, 12 Pac. 942, where an action was commenced in the name of the state on the relation of Pierce, a resident, taxpayer and elector of a township against the board of county commissioners and the county clerk to enjoin their canvassing the returns of an election to authorize issuance of certain bonds. The court considered the right of the plaintiff to maintain the action and held that the relator had no interest in the subject matter of the bonds different in kind from that of the public generally and that he could not maintain the action although he might be a resident, a taxpayer and an elector.
In Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235, Ann Cas. 1912A 719, plaintiff, an individual, sought to enjoin an election in a city of the second class. In the opinion it is stated “that this court has never enjoined the calling or holding of an election, and. we believe that this is the first instance where it has been asked to do so.” (1. c. 433.) A review of authorities from other jurisdictions is made which will not be repeated. It was held:
“It is a principle of general application that courts will not enjoin the calling and holding of an election.
“Injunction being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur; acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the relief.” (Syl. HIT 1, 2.)
In Bealmear v. Hildebrand, 107 Kan. 419,191 Pac. 263, taxpayers sought to enjoin an election to choose officers of a rural high school district. In the opinion it was stated:
“In calling the election to choose a district board, the defendant acts in a purely ministerial capacity to execute the command of the legislature. The proposition is that the plaintiffs may litigate with her [county superintendent] the legal existence of the corporation. This court has uniformly held, under a great variety of circumstances, that this may not be done.” (citing cases.) (l.c. 421.)
The court held:
“Private persons have no standing to question the legality of the organization of a rural high-school district, by an action to enjoin election of rural high-school district officers.” (Syl.)
We conclude from the authorities above referred to that plaintiffs as individuals and as citizens, taxpayers and electors, had no right to maintain an action the purpose of which was to question .the legal status or the official composition of the board of county commisioners of Morton county, nor did they state any facts which warranted the relief sought and the election for relocation of the county seat enjoined, and that the district court erred, in overruling the demurrer to the petition and in granting the temporary injunction. Its ruling and judgment is reversed and the cause is remanded with instructions to sustain the demurrer and to vacate and set aside the temporary injunction. It is so ordered. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Hal H. Daugherty, appeals from a conviction of conspiracy to commit arson in violation of K. S. A. 21-3718 and 21-3302.
Defendant was charged in two counts of a seven count information which lodged charges against defendant Gerald L. Ray (sometimes referred to as Jerry Ray), Tommie Gene Padgett, Robert Leon Rowlett and Willard L. Gettle, Jr. All of the offenses were alleged to be connected with proposals to burn three buildings owned by Willard L. Gettle, Jr.
Willard L. Gettle, Jr., a Wichita businessman who owned and operated a business known as Wichita Beef, Incorporated, located at 2952 North Arkansas Street in Wichita, was the central figure in all of the events giving rise to the charges filed. Gettle also owned a building located at 400 North Hydraulic in Wichita and another building in Augusta, which were involved in the conspiracy charges.
The investigation covered the activities of Gettle, the four defendants charged and other parties connected with the schemes through the years 1971, 1972 and 1973. As a result of the investigation a seven count information was filed. Counts One, Five and Seven related to the 1971 burning of Gettle’s building at 2952 North Arkansas. Count One charged Ray with arson. Count Five charged Ray and Daugherty with conspiracy to commit arson. Count Seven charged Ray with making terroristic threats against Gettle.
Counts Two, Three and Four related to the 1973 conspiracy to burn Gettle’s building at 400 Hydraulic. Count Two charged Ray and Padgett with criminal use of explosives in transporting and possessing the turpentine they were going to use to burn the building. Count Three charged Ray and Padgett with possession of burglary tools and possession of the key to the building. Count Four charged Ray and Padgett with attempted arson of the building.
Count Six related to the 1973 conspiracy to burn Gettle’s building in Augusta. Daugherty and Rowlett were charged in this count with conspiracy to commit arson.
The then attorney general (Vern Miller) became involved in the investigation in its early stages and thereafter directed the activities of the law enforcement officials involved. Miller granted immunity to Gettle. Soon after the trial began, Ray, as a result of plea negotiations, entered a plea of guilty and became a witness for the state. At trial, Padgett and Rowlett were acquitted as a result of their defense of entrapment. Defendant Daugherty was acquitted on the 1973 conspiracy charge (Count Six), but was convicted on the 1971 conspiracy charge relating to the 1971 burning of Gettle’s building at 2952 North Arkansas in Wichita (Count Five).
The prosecution evidence, as in most conspiracy cases, is lengthy and complex. The state’s case was generally structured around the testimony of Gettle and Ray and several law enforcement officers involved in the investigation.
The testimony of Gettle and Ray, pertinent to the points on appeal, commences with Gettle’s testimony concerning a conversation with defendant which took place at either Gracie’s Cafe or the Red Garter Lounge in Wichita during June 1971. Gettle testified that during this conversation the subject of fires in the Wichita area was brought up. Defendant told Gettle that several of these fires were “set fires,” meaning arson. Gettle testified he told the defendant he was unhappy with the meat business, that he would like to get out of it; and the possibility of burning the business down was brought up. Defendant told Gettle he thought he could put him in touch with someone who could burn a building down. Defendant said the man’s name was Jerry Ray.
Ray testified that in June 1971 Daugherty contacted him and asked if he would come to Wichita to meet a man who wanted some work done. Without further explanation Ray agreed to come.
Gettle further testified that he went to the Red Garter Lounge on numerous occasions following his conversation with defendant concerning the fires. On one such visit, approximately two weeks later, defendant introduced him to Jerry Ray. Ray testified that defendant called Gettle outside, introduced the two men to one another and then said, “This is the gentleman I wanted you to meet that I called you about. You all go somewhere and talk.” Defendant then went away, leaving Ray and Gettle together to talk in private.
During the conversation Ray told Gettle he could put him in touch with someone who could bum Gettle’s building and that he would call Gettle at a later date. Ray testified that after Gettle left he went back into the club and inquired of defendant: “This man is talking about a fire. Do you think I could trust him?” Daugherty replied, “Yes, you can trust him.”
In late June or early July 1971, Ray introduced Gettle to Tom Padgett at the Wichita airport. Padgett quoted a price of $20,-000.00 for doing the arson job, told Gettle to consider it and let either Ray or him know what he finally decided.
Gettle testified he met with Ray a few days later and told him he was no longer interested in having the building burned. On this point the testimony of the two principal prosecution witnesses, Gettle and Ray, is in conflict. Regarding this same meeting, Ray testified Gettle did not say he did not want to go through with the plan. Ray further testified he subsequently received a call from Gettle and Gettle told him the people with whom he had been put in touch with “wanted too much to bum the building.”
In any event, Ray subsequently introduced Gettle to two men named Guy and James and told Gettle they could do the job for him. Gettle testified the men offered to do the job for less money and when he still refused to go through with it, they told him he was in too deep to get out—
“. . . [I]f I did not go through with it, and I can’t tell which one said it, either Guy or James, in fact they acted almost proud of it, that I could be dropped at a quarter of a mile away ... I assumed that this meant I oould be shot at a quarter of a mile away.”
Ray confirmed that such a threat was made to Gettle by James, who warned Gettle “to stay cool about it. . . .”
Gettle testified the men told him they were going to go ahead with the job and that he would comply with their wishes. They demanded $1,500.00 in advance and a total amount of either $6,000.00 or $8,000.00. For his services Ray was supposed to receive five portable advertising signs from Gettle. Gettle paid the $1,500.00 to Ray and the four of them parted company, agreeing to meet again on July 20 at a Wichita motel. In the meantime, Gettle had his attorney raise the insurance coverage on the building by $30,000.00.
During the night of July 20-21, 1971, the building at 2952 North Arkansas was burned by Ray, James, Guy, Gettle and another unidentified man. After the fire was extinguished, Wichita Fire Inspector Robert Langley entered the building and discovered several turpentine-soaked cloth “trailers” or strips running throughout the building.
Within two or three days after the fire, Gettle told the defendant he was under a lot of pressure from the police and fire departments about the fire. Daugherty told him to “keep calm, keep cool, that was all Gettle could do.”
Attorney General Miller testified that after he became involved in the investigation he received numerous telephone calls from Gettle in February 1973, but did not return them because he did not want to talk to him at that time. In the latter part of February 1973, the attorney general talked to Gettle’s attorney, Ray Hodge. As a result of this conversation, the attorney general came to Wichita where he met with Hodge and Gettle on March 2, 1973.
At this meeting the attorney general told Gettle he was aware of the fire at 2952 North Arkansas and mentioned Ray’s name to him. The attorney general then said: “Gettle, I’m in the position to give you immunity if you tell me the whole truth about this matter.” Gettle agreed to cooperate and told the attorney general about the circumstances leading up to the fire. They agreed to meet again on March 7. The attorney general admonished Gettle not to make contact with anyone until he heard from him.
Despite this admonition, on March 6, 1973, Gettle called Ray from his home and recorded the conversation. The tape recording of this conversation was introduced at trial as State’s Exhibit 17. Ray testified that prior to this call Daugherty had called him in San Antonio, Texas, and told him Rud Gettle was trying to get in touch with him. After the call from Gettle, on March 6, which was taped, Ray testified he got in touch with Padgett and asked him if he wanted to go to Wichita to make some money by burning a building. Padgett agreed to go and the two of them drove to Wichita a few days later.
The tape of the March 6 conversation between Gettle and Ray was played for the attorney general during a meeting on March 7, in Ray Hodge’s law office. After listening to the tape recording the attorney general commented that it appeared Ray was still “in business” and he wondered if Daugherty might still be the contact man. Gettle indicated he thought Daugherty was still the contact man. The attorney general granted full immunity from prosecution to Gettle and stated: “Let’s call Hal now and we’ll tape it. I want to hear what he has to say.” Gettle called the defendant from Hodges office and the tape recording of this call was admitted at trial as State’s Exhibit 18. The taped conversation disclosed that Daugherty was still a contact man, as indicated by Gettle. Gettle indicated to Daugherty that he needed to get someone for another arson job and first inquired about Jerry Ray. Daugherty said that Ray had moved and might not be available and suggested that Leon Rowlett could do the job. After some conversation in which Daugherty assured Gettle that Rowlett could do the job, Daugherty told Gettle that he would contact Rowlett and arrange a meeting of the three of them and line things up.
After the March 7, 1973, meeting in Mr. Hodge’s office, Attorney General Miller assigned Dave Wood, an agent of the Kansas Bureau of Investigation, to work with Gettle as an undercover agent. Gettle introduced Wood as his cousin to the defendant. Defendant told Gettle that Leon Rowlett could be trusted to handle the burning of a building. Defendant then introduced Wood and Gettle to Leon Rowlett. Gettle and Rowlett discussed the burning of Gettle’s building in Augusta. Rowlett told Gettle he could handle the job or, if not, at least find someone who could. Gettle, Wood and Rowlett met the following day and inspected the building in Augusta. Gettle then told Rowlett that Dave Wood would handle the matter from that point on.
On March 13, 1973, Ray and Padgett arrived in Wichita about 1:00 p. m. Ray met Wood at a prearranged place and time, believing at the time he was dealing with Gettle’s cousin. Wood gave Ray a key to the building and Ray left to get Padgett. Ray drove Padgett to the building at 400 North Hydraulic and gave him the key so he could inspect the premises. Shortly thereafter he returned and picked up Padgett. The two men had a duplicate key made and Ray returned alone to see Wood and agreed to burn the building for $6,000.00, half in advance and the rest on the night after the fire. Wood paid Ray $3,000.00 in cash. Ray and Padgett then left Wichita. While Ray and Padgett were in the vicinity of the 400 North Hydraulic building they were being watched by Attorney General Miller and other law enforcement officers.
On March 14, 1973, Gettle called Ray and told him the fire had to be on March 15 since Gettle was going to be out of town on that date. On March 15 Ray and Padgett arrived in Wichita about 6:30 p. m. They were both arrested after they had carried two cans of inflammable liquid into the building located at 400 North Hydraulic. At approximately the same time Rowlett and another man were arrested in front of the building in Augusta. They were found to be in possession of three bottles of inflammable liquid.
The record reflects that in response to a telephone call from Gettle, Miller met with Gettle and defendant at a Wichita restaurant on March 16, 1973. Miller told defendant that he was in trouble concerning the fire at 2925 North Arkansas and that possibly charges would be brought against him. Defendant denied having any knowledge about the arsons.
A few days before trial, Jerry Ray received word from defendant that he wanted to talk to him. Ray was in the process of plea negotiations at the time. Two days before trial, Ray telephoned defendant and arranged to meet him in Ray’s motel room in Wichita. Ray testified he believed his room was bugged and that two KBI agents were in an adjoining room. At this meeting Ray told Daugherty he was concerned about a check Daugherty had given him in connection with another arson conspiracy. Daugherty told Ray he had nothing to worry about because the check was made out to Ron Wormuth, an employee of Ray, and that Daugherty had gone to his files and pulled the original check out. This testimony was elicited after the jury had been excused from the courtroom for a hearing on its admissibility. (State v. Bly, 215 Kan. 168, 523 P. 2d 397.)
A photocopy of Daugherty’s check, payable to Wormuth, was located after extensive searches of defendant’s bank files and was admitted as evidence of another crime under K. S. A. 60-455. A “shotgun” type instruction was given limiting the jury’s consideration of this evidence to all eight elements listed in 60-455. Further circumstances in connection with the admission of this check into evidence will be discussed in connection with one of defendant’s points on appeal.
Defendant specifies thirteen points of error on appeal, but briefs only six of them. As his first point defendant asserts the trial court erred in refusing to separate the defendants for trial. The record fails to reveal the filing by defendant of any motion to sever. Neither does the record reflect any objection by defendant to a joint trial in any of the pretrial proceedings. Defendant makes no attempt in his brief to show cause for not raising the claim of misjoinder before trial. Thus, defendant’s failure to move for severance before trial constitutes a waiver of any objection to joinder. Moreover, the granting of a separate trial under K. S. A. 22-3204 is discretionary with the court and no abuse of discretion is shown by the joinder under the facts and circumstances herein. (State v. Sully, 219 Kan. 222, 547 P. 2d 344; and State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395.)
In his second point defendant claims error in the denial of his motions for judgment of acquittal lodged at the close of the state’s evidence and again at the close of all the evidence. The question presented is whether the state’s evidence is sufficient to show that defendant’s conduct falls within the proscription of our conspiracy statute K. S. A. 21-3302, which reads in pertinent part:
“(1) A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.
“(2) It shall be a defense to .a charge of conspiracy that the accused voluntarily and in good faith withdrew from the conspiracy, and communicated the fact of such withdrawal to one or more of his co-conspirators, before an overt act in furtherance of the conspiracy has been committed by him or by a co-conspirator.”
As may be seen, the crime of conspiracy as defined by the statute consists of two essential elements: (1) An agreement between two or more persons to commit or to assist in committing a crime and (2) an overt act in furtherance of the conspiracy committed by one or more of the conspirators.
In upholding the statute against constitutional challenge in State v. Campbell, 217 Kan. 756, 539 P. 2d 329, cert. den. 423 U. S. 1017, 46 L. Ed. 2d 389, 96 S. Ct. 453, we had this to say concerning the offense defined therein:
"K. S. A. 21-3302 provides that a conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. The essence is the agreement to commit a crime, not simply to commit a particular act, as to drive an automobile at a certain time and place. Clearly a mental state is contemplated. . . .” (p. 770).
A motion for judgment of acquittal is provided for by K. S. A. 22-3419(1). The test to be applied in ruling on such motion was announced by this court in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, wherein we held:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion." (Syl. 3.)
Defendant first argues he “virtually withdrew from the conspiracy when he refused to participate in the conspiracy initially between Gettle and Ray.” The trouble with this argument is that the testimony of Gettle and Ray on the point, as we have previously pointed out, was in conflict. Whether Gettle and defendant abandoned the conspiracy or whether Gettle withdrew from it thus presents a question of fact for the jury. (People v. Rosen, 18 Mich. App. 457, 171 N. W. 2d 488.) Viewing the conflicting evidence in the light most favorable to the prevailing party below, as we are required to do (State v. Beard, 220 Kan. 580, 552 P. 2d 900), we are unable to say the jury was wrong in concluding the defendant did not withdraw from the conspiracy.
Defendant further argues there is no evidence to show that he had a “stake” in the outcome of the conspiracy. It has been held that to be a co-conspirator one need not have a financial stake in the success of the conspiracy. In this regard all that is required on the part of a co-conspirator is that he not be indifferent to its outcome. (United States v. Noah, 475 F. 2d 688 [9th Cir. 1973], cert. den. 414 U.S. 1095, 38 L. Ed. 2d 553, 94 S. Ct. 728.)
From the evidence we have recited it may fairly be concluded, not only that defendant was not indifferent to, but that he was intensely interested in the outcome of the conspiracy to burn the building at 2952 North Arkansas for which he stands convicted. Defendant and Gettle initially conceived the conspiracy and defendant continued to participate as the contact or “go-between” in arranging the meetings and introductions which finally resulted in the arson.
Defendant cites only the case of United States v. Falcone, 311 U. S. 205, 85 L. Ed. 128, 61 S. Ct. 204, in support of his arguments relating to the denial of his motions for acquittal.
Defendant’s reliance on Falcone is misplaced. Falcone and other accused were charged with conspiracy to violate revenue laws by the operation of illicit stills in the vicinity of Utica, New York. The accused knew that the materials which they sold would be used by others in illicit distilling, but the evidence was insufficient to show that they knew of the conspiracy among the distillers. The question before the court was put in these words by Mr. Justice Stone:
“The question presented by this record is whether one who sells materials with knowledge that they are intended for use or will be used in the production of illicit distilled spirits may be convicted as ,a co-conspirator with a distiller who conspired with others to distill the spirits in violation of the revenue laws.” (p. 206.)
Falcone and the other respondents were jobbers and distributors who sold sugar and yeast. The thrust of the Falcone decision is simply that those who have no knowledge of a conspiracy are not conspirators and that one merely furnishing supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of the conspiracy to which the distiller was a party but of which the supplier had no knowledge.
In the case at bar, defendant was not merely a supplier of goods to be used for an illegal purpose. He was an active participant in and had full knowledge of the conspiracy. His function was to procure and introduce an arsonist to the conspiracy. He did so and at that point the crime of conspiracy was committed even though subsequent overt acts, including the arson, were later committed and additional co-conspirators were joined with the original conspiracy.
In the case at bar, the evidence discloses that defendant agreed to assist Gettle in committing the crime of arson; that defendant subsequently asked Ray to come to Wichita and meet Gettle; and that defendant introduced the two and assured Gettle that Ray could handle the job and told Ray that Gettle could be trusted. Defendant’s introduction of Ray to Gettle was with knowledge of its purpose, and as such constituted both adherence to the conspiracy and an overt act toward its accomplishment. (United States v. Barone, 458 F. 2d 1027 [3rd Cir. 1972].)
We believe the record discloses sufficient competent evidence to support the trial court’s rulings on defendant’s motions for judgment of acquittal under the test to be applied.
Defendant’s sixth point concerns the “bugged” conversation between Ray and defendant in Ray’s motel room two days before the trial. As a result of this conversation the state learned from defendant’s statements to Ray of a check which defendant, apparently, had made in connection with a previous and unrelated arson conspiracy involving defendant and Ray. After a search of defendant’s bank records, a photocopy of the check was secured. After a State v. Bly, supra, hearing the check was admitted as evidence of a previous similar crime under K. S. A. 60-455. Defendant specifies error in these words:
“That the co-defendant, Gerald Ray, in cooperation with the state, the day before the jury trial started, met with this defendant, Hal Daugherty, in a motel room that was bugged by the state and induced him to make certain statements which were on tapes, all of said action being in agreement with the attorney general of the State of Kansas, and with the District Attorney of Sedgwick County, Kansas, knowing very well that the defendant, Hal Daugherty, was represented by T. L. O’Hara, an attorney of Wichita, Sedgwick County, Kansas, and Bruce B. Fitts of Wichita, Sedgwick County, Kansas.’’
The check obtained from defendant’s bank records following the conversation intercepted by electronic surveillance, we believe constitutes “fruit” of an interrogation conducted in contravention of the Sixth Amendment right to counsel, as defined in Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199, and followed by this court in State v. McCorgary, 218 Kan. 358, 543 P. 2d 952.
The petitioner in Massiah had been indicted for a federal narcotic violation. He had retained counsel, pled not guilty, and was out on bail. A few days later, and without Massiah’s knowledge, an alleged confederate decided to cooperate with government agents in their investigation. This confederate permitted the agents to install a radio transmitter in his automobile by means of which the agents were able to listen to a conversation in which the confederate engaged Massiah. Evidence of several incriminating statements made by Massiah during this conversation was allowed into evidence over objection at the trial. Reversing the conviction, the United States Supreme Court stated:
“. . . We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. . . .” (p. 206.)
In this appeal the state concedes if this meeting occurred at a time when Ray was an “agent” of the state, then the conviction is suspect under Massiah and McCorgary. However, since Ray did not plead guilty and agree to cooperate as a witness until the first day of trial, the state argues in its brief there is insufficient evidence of such agency to support the contention urged by the defendant. Ray’s testimony, we believe, clearly shows, that as an aid to his plea negotiations, with which he was involved at the time, he was acting as an informer and an agent of the state.
In discussing the Massiah holding in our Opinion in McCorgary we pointed out that the Massiah exclusionary rule does not apply to voluntary statements of a defendant which are made to private citizens. But, as applicable to the issue at bar, we proceeded to say:
“. . . It is only when the state actively engages in prior arrangements with an informer to obtain desired information in contravention of constitutionally protected rights that the sanction of suppression of the evidence is applied. The surreptitious arrangement which undercuts the right to counsel by the use of a secret informer is the evil sought to be removed. A police officer seeking information under similar circumstances would be required to inform the accused of his right to counsel and not proceed further until the accused knowingly and voluntarily waived such right. The whole purpose of the state in using a secret informer is to avoid that which is required of a police officer. What the state may not do directly to secure evidence, it cannot do indirectly. Such unfair tactics, if permitted, would override the individual’s constitutionally based rights, [citing cases.]” (p. 363.)
Rays testimony at trial indicates that prior arrangements had been made in the case at bar. When Ray was asked whether the KBI agents had asked him for permission to bug the motel room, he responded:
“A. In part of my plea negotiations that I talked about, we discussed the bugging of a room, if I could firm up my statement to them to be true, what I have told about. As far as asking me if they could bug the room, I had no objections to it, no.
“Q. Now, this was what, two days before the trial started?
“A. Yes, sir.
“Q. Did your attorney know about this?
“A. Yes, sir.
“Q. And they asked his permission?
“A. You’d have to ask my attorney. I don’t know.
“Q. As far as you know, they didn’t?
“A. As far as I know, did they ask his permission? I’m sure that they did or he would have told me otherwise.”
Ray testified he believed the room was bugged and that two agents of the KBI were next door, but he did not see the bug. He further stated he saw the prosecutor, Mr. Hall, at the motel later that evening.
In addition to a discrepancy in Ray’s recollection as to the year in which the check was issued, it was shown that Ray could not remember to whom the check was made payable. After defendant advised Ray during the taped conversation that the check was made out to Ron Wormuth, the state’s investigators were able to obtain a photocopy of the check. Under these circumstances Mc-Corgary renders this evidence inadmissible.
In connection with this point, the state further contends defendant failed to lodge a proper objection which would preserve the question for appellate review. The only objections interposed by counsel for the defendant to the admission of the check and the accompanying oral testimony were that the evidence was beyond the scope of direct examination and that it was not the best evidence. Under these circumstances the state argues defendant has failed to satisfy the specificity requirement of K. S. A. 60-404, our contemporaneous objection rule, and this omission precludes appellate review of the contention.
Following oral argument in this case, we received a letter from Stephen M. Joseph, counsel for the state, concerning the electronic eavesdropping contention raised by the defendant. In his letter Mr. Joseph states, with commendable candor, that when he filed the state’s brief and argued the cause before this court, he was not aware that the alleged electronic eavesdropping and surreptitious surveillance had occurred. In his letter counsel candidly states, “I know now that it did occur.”
Mr. Joseph assures us in his letter there was no attempt by any state agent or representative to conceal the eavesdropping. However, from our own review of the record in this case, we believe the facts surrounding this incident were not developed to' such an extent as to fully apprise defendant’s trial counsel of the precise grounds upon which he should base an objection. Under these circumstances we are unwilling to apply the contemporaneous objection rule as a bar to our consideration of this matter. Neither are we able to declare this erroneous admission of evidence “harmless” in a case as closely contested as the one at bar. Under such circumstances, defendant must be granted a new trial.
In view of our disposition of the foregoing contention we need not consider other points argued on appeal. The judgment is reversed and the cause is remanded for a new trial.
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The opinion of the court was delivered by
Thiele, J.;
This was an action for damages for wrongful death growing out of a collision of an automobile and a truck. The result was a judgment for plaintiffs and the defendants appeal, specifying as errors that the trial court erred in (1) ovérruling defendants’ motion for judgment non obstante veredicto; (2) overruling defendants’ motion to set aside certain answers to special questions; (3) overruling defendants’ motion for a new trial; and (4) rendering judgment in favor of plaintiffs and against defendants. The case will be stated sufficiently to dispose of the contentions made under those specifications.
The petition alleged that plaintiffs were the parents of Betty Alice Long, a minor, hereafter referred to as the decedent, who died as a result of the collision later mentioned, and that there was no administration of her estate; that on December 3, 1943, decedent was riding to the south in a Chevrolet coupé with Marion Wing and Jack Padfield, the driver, on Douglas road, a highway in or near the city of El Dorado; that a truck owned by defendant Shafer and driven by his employee, defendant Tindell, was proceeding north along the same highway; that about the time both vehicles reached the junction of Douglas road and Sunset Lawns boulevard, Tindell negligently turned to the west and to his left and attempted to proceed into Sunset Lawns boulevard and caused his truck to crash into the Chevrolet coupé in which the decedent was riding, and she was instantly killed. Although stated at length in the petition, the negligence charged against the defendants was in substance that Tindell did not give the signals required by law of his intention to make a left-hand-turn; that he turned to the left before he reached the intersection of Douglas road and Sunset Lawn boulevard, when he knew that the Chevrolet coupé was approaching from the north and had already entered the intersection or was so close as to constitute an immediate hazard or danger of collision; that he failed to keep a proper lookout and to observe the position of the Chevrolet coupé with reference to the intersection; that he attempted to make a left-hand turn from Douglas road in violation of the statutes of Kansas in that he started to turn to the left before he had reached the intersection and in negligent disregard of the safety and rights of the decedent, and in driving his truck, under the circumstances, at such a rate of speed he could not stop and avoid the collision, when he could have observed that the Chevrolet coupé had already entered the intersection or was so close to it as to constitute an imminent hazard. Allegations concerning Shafer’s operating a transport carrier, requirements as to insurance coverage and that the defendant insurance company had issued its policy need not be noted further, nor need we notice allegations concerning relations and status of the decedept to her parents for the purpose of showing extent of their loss from her death.
Summarized, it may be said the answer admitted that defendant Shafer owned the truck in question; that it was operated under a contract carrier permit and that the defendant insurance company issued the policy of insurance thereon. The fact of the collision was also admitted but negligence of the driver, defendant Tindell, was denied. It was affirmatively alleged that the Chevrolet coupé was driven by Padfield at a high and dangerous rate of speed, and that Padfield negligently drove his car into the intersection without regard to the position of the truck then in the intersection, and into the front end of the truck; that as soon as it was apparent that Padfield was going to enter the intersection Tindell .immediately applied his brakes and brought his truck to a stop. It was also alleged that Padfield had been arrested on previous occasions for traffic violations and was known to the decedent to be a reckless and negligent driver; that- she was familiar with the highway and that she could or should have observed the truck and its change of course, and omitting some detail, should have warned Padfield of-impending danger for her own safety. Then follows a specification of five items, based on the above allegations, that the decedent was guilty of negligence; that the collision was unavoidable on the part of Tindell but occurred by reason of the negligent acts of Padfield and the decedent, and if Tindell was negligent, the negligence of Padfield and the decedent contributed proximately to cause the collision and damage. Plaintiffs’ reply was'a denial of new matter.
Matters occurring during the trial and of which complaint is made will be mentioned-later. As a result of the trial the jury returned a general verdict in favor of the plaintiffs and answers to special questions as follows:
“(1) At what distance was the transport truck which Herman Tindell was driving from the intersection of Douglas Road and Sunset Lawns Boulevard when he first saw the Chevrolet'Coupé in which Betty Alice Long was riding? A. 150 feet to 200 feet. ■
“(2) At what distance from said intersection was the Chevrolet Coupé in which Betty Alice Long was riding when Herman Tindell -first saw it? A. 700 feet to 800 feet.
“(3) At what rate of speed was the Chevrolet Coupé traveling when it was five-hundred feet north of said intersection? A. 25 MPH to 50 MPH.
“(4) At what rate of speed was said Chevrolet Coupé traveling at the time it entered said intersection? A. 25 MPH to 50 MPH.
"(5) At what rate of speed was the transport truck traveling at the time the defendant Herman Tindell started to turn said transport truck from Douglas Road into Sunset Lawns Boulevard? A. - 12 MPH.
“(6) Where was the Chevrolet Coupé in which Betty Alice Long was riding at the time the transport truck commenced its lefthand turn from Douglas Road into Sunset Lawns. Boulevard? A. Near the intersection.
“(7) After the defendant Herman Tindell started his left-hand turn from Douglas Road into Sunset Lawns Boulevard what; if anything, could he have done which was not done to avoid the accident? ' 'A. He could have straightened his truck to ■ remain on- the slab or applied his brakes and stopped leaving room, for passage of another vehicle.
“(8) What warning or signal, if any, did Herman Tindell give that he expected to turn from Douglas Road into Sunset Lawns Boulevard? A. Hand signal.
“(9) If you find' the defendant Herman Tindell did give a signal or warning before starting to make said turn, a¡t what distance from said intersection was said.signal or warning given? A. 150 feet to 200 feet'.
“(10) How fast was said transport truck traveling at the time of the collision or impact? A. 7 MPH.
“(11) Do you find that the defendant Herman Tindell was guilty of negligence? A. Yes.
“(12) If your answer to Question No. 11 is in the affirmative, state of what such negligence consisted. A. Violation of state law in. regard to making a left band turn, at the intersection.
“(13) What, if anything, prevented Betty Alice Long from seeing the defendant’s truck as it started its left-hand turn? A. Nothing that we know of.
“(14) Do you find that Betty Alice Long was guilty of negligence? A. No.”
The remainder of the questions and answers are of no consequence in this appeal.
Immediately upon the verdict and answers being returned the defendants requested the court to instruct the jury to return more definite answers to special questions 3, 4, 6 and 8. This request was denied. Thereafter the defendants filed their motion that the answers of the jury to special questions 11, 12 and 14, be set aside as unsupported by the evidence, as mere conclusions and as in conflict with other specific findings; also their motion for judgment non obstante veredicto, and their motion for a new trial. These several motions were presented and, as stated in the journal entry, after full and complete argument by counsel for defendants in support, and by counsel for plaintiffs in opposition, the trial court denied each of the motions and rendered judgment in favor of the plaintiffs and against the defendants. From these several rulings and the judgment the defendants appeal. In their abstract appellants state their specifications of error as previously indicated. Coupled with their brief is a supplemental abstract) containing amended specifications of error. It may be said, however, that two general questions are presented: (1) That defendants were entitled to judgment notwithstanding the verdict, and, if not, (2) they'are entitled'to ■ a new.trial. The "specifications of error sufficiently cover these-two general questions, and the'subordinate questions discussed under the main heads. ' '
1. Were the appellants entitled-to judgment notwithstanding 'the verdict? Preliminary to a discussion of this question, it is well to bear in mind the rule is, that for the purpose of testing such a motion the movant concedes that the evidence supports the answers made. (See, e. g., Witt v. Roper, 149 Kan. 184, 187, 86 P. 2d 549; Eldredge v. Sargent, 150 Kan. 824, 829,.96 P. 2d 870; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 283, 139 P. 2d 859; and the cases cited in each.)' A further rule to be remembered is that nothing will be presumed in favor of the special findings as against the general verdict, but the special findings will be given such con struction, if possible, as will bring them into harmony with the general verdict, and that while nothing will be presumed in favor of the special findings as against the general verdict, they may be viewed and interpreted in the light of the testimony. (See, e. g., Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877 and cases cited.) Under the above rules, we now ignore any motions made to have certain answers to special questions made more definite or to set aside other answers as unsupported by the evidence. Appellants’ argument under the above question is divided into two parts, first that the answers convicted the decedent of negligence contributing to her death, and second, the answers acquitted the truck driver of any negligence. These will be discussed in the order stated.
Appellants do not ignore the answer to question 14 that the decedent was not guilty of contributory negligence, but contend the finding is a general one and under authorities such as Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492,134 P. 2d 681, the general finding so made must be controlled by and yield to the detailed findings of ultimate facts. The argument is that under findings 1 and 2 the truck and the Chevrolet coupé were at least 850 feet apart when the driver was 250 to 200 feet south of the intersection at which time he gave a signal that he expected to turn; finding 8, that at the rate of speed traveled by each the Chevrolet was “near the intersection”; finding 6, when the truck started to turn to the left, there was nothing to prevent the decedent from seeing; finding 13, but that she did nothing to control the car in which she was riding. This last statement is predicated on evidence and not on findings and may not be used to impeach the verdict. We realize that the answers to questions 3 and 4 leave room for an argument that if the speed of the Chevrolet coupé was fifty miles an hour, it could not have been in or near the intersection at a time when its occupants could have seen the truck start to turn to the left, but if its speed was only twenty-five miles per hour, an entirely different conclusion would be reached.
The situation may also be viewed from another angle. There is nothing about the answers that compels' any conclusion that the driver of the truck gave any signal of intention to turn left except when he was 200 feet south of the intersection (findings 1 and 8) and traveling twelve miles per hour (finding 5). At that time the Chevrolet was 750 feet north of the intersection (finding 2) traveling fifty miles per hour (findings 3 and 4). Any computation shows that at the distances and rates of speed each vehicle was traveling, the Chevrolet coupé would reach the intersection before the truck did and before the truck started its turn. If that were the fact, the driver of the Chevrolet coupé and the occupants did not have, to assume the truck would turn to its left and in their line of traffic. The subject need not be treated further. The specific findings relied on by appellants, i. e., 1, 2, 3, 6, 8, 9 and 13, do not compel any conclusion that finding 14 is too general. It is possible to reconcile the findings. The appellees are entitled to a favorable and not unfavorable interpretation, without regard to possible unfavorable evidence not included in a finding, and so viewed the appellants were not entitled to have their motion sustained on the ground the special findings convicted the decedent of negligence contributing to her injuries.
Did the special answers and findings acquit appellants’ driver of negligence? In arguing this subdivision of its main question appellants direct attention to distances and speeds as found by the jury, and supplemented by reference to certain evidence that the intersection was 132. feet wide at the immediate point where Sunset Lawns boulevard as actually used met the pavement on the north and south highway, and to certain road signs tending to prove there was a speed limit of thirty miles per hour on the north and south highway, and argue that the action of the driver of the truck in turning to the left could not have been negligence on his part. In making this argument it is said the burden of proof was upon appellees and that the jury’s answers to questions 3, 4 and 6 must be construed as equivalent to an answer of “don’t know” and therefore construed against the appellees. In support our- attention is directed to quotations from Haley v. Kansas City Public Ser. Co., 154 Kan. 477,119 P. 2d 449; Darrington v. Campbell, 150 Kan. 407, 94 P. 2d 305; and Mehler v. Doyle, 271 Pa. 492,115 Atl. 797. In our opinion these decisions do not support the contention. Appellants also direct our attention to Fisher v. Wichita Transportation Corp., 156 Kan. 500,134 P. 2d 393, and argue that if we construe the answer to question 4 .as being twenty-five miles per hour, the facts are identical. We cannot agree. In that case the finding was that the plaintiff was 150 feet from the intersection when the bus started its left-hand turn. Only by construing the findings against the plaintiffs may it be said with certainty that the Chevrolet coupé was not in or near the intersection when the truck started its left-hand turn. In a sense the argument here parallels that presented in contending the findings convicted the decedent of negligence. It is possible to resolve all of the answers in favor of appellants, and to consider some evidence which favored their, contention, and to say the decedent was guilty • of negligence and the truck driver was not, and it is also possible to take those same answers and interpret them favorably to the plaintiffs and conclude the decedent was not guilty of negligence and that the truck driver was. Under the rules heretofore mentioned,' the latter interpretation is the one we are bound to give.
The trial court did not err in its ruling on appellants’ motion for • judgment non. obstante veredicto.
2. Were-.the appellants entitled to a new trial? Under this head-: ing six general contentions are made,- the first one being composed of three subdivisions. In view of our conclusions hereafter stated, we shall comment briefly on some of the contentions not sustained because the same matters may be presented at a -later trial. Others of the,contentions will only be mentioned for likely the facts giving rise to them will not again occur.
It is first conténded that the trial court erred in refusing to instruct on the statutory definition of “intersection” and “roadway” (see G. S. 1945 Supp. 8-501), which instruction had -been requested by appellants. It may be observed the trial court did not in its owii language, instruct the jury with' reference to .the provisions of the Uniform Act Regulating Traffic On Highways (G. S. 1945 Supp., ch. 8, art. 5), but stated that pertinent parts of the Kansas statutes applicable to the case were as follows; after which it quoted verrbatim all or portions of the following sections of the statute: 8-532-dealing with speed; 8-544 with turning at intersection; 8-547 with signals; 8-549 with manner'and method of giving signals; 8-551 with vehicles turning left at intersectionsand by a following instruction advised the jury that if a driver violated, the- law in driving a motor vehicle or in attempting to turn left at an intersection, the violation constituted negligence. The appellants had requested an instruction defining the words “roadway” and “intersection,” both of which are used in portions of the sections of the statute as quoted in the opinion and later objected to the instruction as given. It may be doubted that in this case the refusal of the trial court to give the requested instructions constituted error for, as we read all of the instructions in the light of the evidence, an instruction embodying the substance of the statutory definition of “intersection” -would not have helped and might have hurt the appellants, in view of their theory of defense. The effect of a definition of “roadway” is not as clear, but we cannot say that it was prejudicial error not to so instruct. As a general -rule, however, in instructions where quotation is made of statutory provisions, and thqse provisions contain words defined in the statute, the jury should also be instructed as to those definitions.
Appellants also contend the trial court erred in its instructions as to the charges of negligence. The complaint arises out of the following: In their petition plaintiffs charged negligence in nine paragraphs and at such length that the printing thereof in the abstract consumes three pages. . Appellants filed their motion to have certain allegations stricken as being mere conclusions of the pleader; or in the alternative to have them made more definite and certain; and to have others stricken as being repetitions. Appellees resisted this motion and the court ordered one paragraph stricken. In its instructions, the trial court, in reviewing the issues presented by the pleading, did not summarize the charges of negligence but set them forth in all of the detail as alleged in the petition, and then in a later paragraph of the instruction again repeated the charges of negligence. Defendants objected to the instructions,, the objections not being allowed. In support of their contention the trial court erred, appellants rely principally upon Kelly v. Meyer, 156 Kan. 429, 432, 433, 134 P. 2d 658, which in a general way supports their claim of error. Appellees direct our attention to the fact the trial court’s instructions covering the appellants’ charges of contributory negligence of the decedent were similarly treated' and appellants did not object. We can hardly take the position that two errors amount to no error. Certainly the allegations of negligence were not in strict accord with the statutory command that the cause of action be stated “in ordinary and concise language, and without repetition,” and the complete restatement of the pleadings followed by the second statement did place the matter before the jury in a strong light. Although the similar treatment accorded the appellants’ charges of contributory negligence probably did have some effect in ameliorating the stress placed on appellees’ charges of negligence by reason of twice repeating all of the details as alleged in the petition, the practice is not one to be approved. The court is of opinion that in the circumstances here existing, it cannot be said the error was prejudicial. On a-second trial the matter may be so treated it is not open to objection.
The next error charged is that the trial court erred in refusing to permit the jury to consider the interest of the witness Wing in the outcome of the action. The.- facts giving rise to this objection may be briefly stated. Marion I/Ving was the only- witness testifying in behalf of the appellees as to matters preceding the accident and as to the collision. He testified that Jack Padfield was driving the Chevrolet coupé in which he and the decedent were riding at the time of the accident. Wing was the only survivor. On cross-examination he was asked, whether he had a petition on file asking for the recovery of substantial damages growing out of the same accident to which he answered affirmatively. An objection was made to the question, which was sustained by the trial court. Later'in its instructions, the trial court advised the jury that in judging the credibility of witnesses'they'should have in mind that a witness is presumed to tell the truth but- the presumption might be overcome by contradictory- evidence, by the manner in which the witness testifies, by the character of his testimony, pertaining to his motives. Defendants formally objected to the instruction. The trial court, by another instruction, advised the jury they must not consider for any purpose any evidence offered and rejected or which had been stricken by the court and that such evidence must be treated as though the jury had never heard it. No specific objection was made to this instruction but objection was made to the trial court’s refusal to give requested instructions, of which more later. In its instruction 43,- originally stated as 42, the jury were- advised they were the exclusive judges of the facts, the- weight of the evidence and the credibility of the witnesses. Appellants requested the trial court to add a sentence that the jurors might consider the witness’s candor or lack of it, demeanor on the witness stand and his interest or disinterest in the outcome of the suit. This request was denied. Appellees place some weight on the fact that the appellants did not object to the one instruction as noted above, and at least inferenti- . ally argue, that appellants waived any error there may have been, and they also argue that the jury understood fully the trial court’s instruction with reference to credibility and that appellants were not prejudiced. We think the matter may not be disposed of so easily. True, the jury were instructed as to credibility but they were also advised not to take into consideration for any purpose any evidence offered and rejected or which had been stricken out. We can only assume the jury followed the instruction. The trial court re fused to give a requested instruction and therefore Wing’s interest in the outcome of the suit was not a subject for consideration. In our opinion the court erred in sustaining appellees’ objection to the question. The instruction the jury was not to consider the evidence perpetuated the error, especially in view of the trial court’s refusal to give the instruction on the point as requested by the appellants. The answer made to the question to which the objection was sustained shows that Wing did have an interest in the outcome of an action like in character to the one filed by him. That the answer might have affected the weight to be given his testimony is not subject to debate. There may be circumstances under which we might not be willing to say the striking of the answer constituted reversible error, but we are not willing to do so under the facts previously narrated. The trial court erred in sustaining the objection to the question, and in refusing, in view of the instruction given, to give the instruction requested by the appellants.
Appellants further contend that the trial court erred in refusing to require the jury to make definite answers to special questions 3, 4 and 6. The special questions and answers have been set out heretofore and attention directed to the motion of appellants that the jury be instructed to return more definite answers. When that motion was made counsel for appellees objected, stating that in view of the fact that the jury did not find Betty Alice Long guilty of negligence the answers became immaterial, and the motion was denied. Briefly it may be said there was evidence that the Chevrolet coupé was going as fast as fifty miles per hour and as slow as twenty-five miles per hour. Appellees argue that it makes no difference whether the speed was one or the other figure. We do not agree. Under findings 1 and 5 the truck was not to exceed 200 feet from the intersection, traveling north at twelve miles per hour. The rate of speed at which the Chevrolet coupé approached was a very material factor to determine whether the coupé was so close to the intersection as to constitute a hazard. The function of the jury was to determine the truth from the contradictory testimony, and to express that determination in their answers. To state the two'extremes of speed to which the witnesses testified was not a performance of their duties. As was said in Lamb v. Liberty Life Ins. Co., 132 Kan. 383, 386, 295 Pac. 698:
“It is also suggested that some of the evidence on the questions was conflicting, but it was the function of the jury to settle the conflicts by direct and candid answers. ... It was the plain duty of the court to have sent the jury back for further consideration of the special questions with the instruction to determine the questions of which they had washed their hands and left undetermined.”
One of the purposes in submitting special questions is to determine the facts which are essential elements of the result reflected in the general verdict and to test the soundness .of that verdict. In the answers especially to questions 3 and 4, and to a lesser extent to question 6, there was no determination, although there was evidence from which a determination could have been reached. The trial court erred in its ruling to the prejudice of the appellants.-
Appellants further contend the trial court erred in unduly restricting their opening statement at the trial. Without repeating any part of the statement, the point raised is that the court erred in limiting counsel to a bare statement of facts and refused to,permit any statement as to the law applicable. We shall not treat the matter at length. While it may be conceded that counsel may state the facts and the theory of law and fact relied on, in the instant case counsel undertook to tell the jury what the -court would instruct them as to the law. The statement was objectionable, and the trial court did riot err in sustaining appellees’ objection to it.
Another claim of error is that appellees’ counsel was guilty of misconduct at the trial. In presenting their case appellees presented as a witness a truck driver of fifteen years’ experience who testified with reference to the positions of the truck and coupé after the collision. He was then asked, if he had an opinion from his observation of them as to the cause of the collision. An objection was sustained. Later, the sheriff of Butler county was called and testified he had driven trucks over a long period, and after being examined as to facts he observed, was asked if he had an opinion as to the cause of the collision. Objection to the question was sustained. The argument is that appellees’ counsel was a capable attorney and knew the questions were .objectionable and asked them solely to prejudice the appellants before the jury. In our opinion the record does not disclose the evil purpose assigned. It is proper to point out that the questions asked called for answers that invaded the province of the jury. During the trial appellees argued that the sheriff' was an expert and therefore could give his opinion. If testimony as to the cause of an automobile accident may ever be the subject of expert testimony it may not be in a case where the sole qualification of the- witness is that he drove a truck for many years. Counsel should avoid asking questions which he has good reason to know a witness may not be permitted to answer. The fact that in the heat of a trial an attorney may do so, however, does not of itself warrant a reversal. The trial court sustained the objections made to the questions. It does' not appear that what occurred, when considered with other incidents of the trial, prejudiced the appellants.
And finally, it is contended the appellees were guilty of misconduct because they mingled with some of the jurors during the course of the trial. Assuming that occurred, there was no showing there were any conversations respecting the facts involved in the trial. It appears from an affidavit filed and presented with the motion for a new trial the matter was brought to the trial court’s attention and it cautioned appellees’ counsel and that he should caution appellees, but that despite the suggestion they later mingled with the jurors. We need not discuss this phase further for it would appear unlikely that there will be a recurrence at any other trial, for before it can be had appellees’ counsel will have had an ample opportunity to advise them as to the course of conduct they should pursue during the trial.
On account of the errors heretofore noted as being prejudicially erroneous, the judgifient of the trial' court is reversed and the cause remanded for a new trial.
Smith, J., dissents froifi paragraphs 7 and 9 of the syllabus and corresponding portions of the opinion.
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The opinion of the court was delivered by
Parker, J.:
This was a proceeding under the workmen’s compensation act. At the hearing before the compensation commissioner the parties stipulated the respondent was operating under the act, the claimant was in its employ at a weekly wage of $48 or $8 per day, the Hartford Accident and Indemnity Company is the insurance carrier, and oral notice of the alleged accident was received by the respondent. It is now conceded a sufficient written claim was made within time. The only evidence adduced was by *the claimant. Based on it both the commissioner and the district court granted an award, the all-important finding of the latter being that on the date alleged claimant sustained personal injury by accident arising out of and in the course of his employment with respondent while directly engaged in carrying out its orders in the furtherance of its business. Thereupon the respondent and the insurance carrier appealed.
Except for evidence to which we shall hereinafter make specific reference the factual situation on which the claim is based, can be summarized thus; Respondent operates a grain elevator in the south part of Jetmore, and Lester Abbott, a brother of the claimant, who lived in the northwest part of that city about one-half mile from where it is located, was its local manager; the claimant, a minor, worked at the elevator, and lived at Lester’s home; his duties were to do whatever was to be done around the elevator; during the harvest season there were no regular working hours; on the 25th day of July, 1945, while harvest was in progress, Lester and George quit work at the elevator at about 8 p. m., leaving two hatches, or doors, in the roof of the storage bin open; from the elevator they went directly .to Lester’s home for supper; after the evening meal George was instructed by Lester to go back to the elevator’ and close the two hatches; while on the way to perform that task, and as he went through the business part of the city, he induced a friend to take him to the elevator in an automobile; George and his friend never reached their destination; as they were proceeding in that direction the automobile in wdiich they were riding collided with an unlighted parked truck and from this collision claimant suffered injuries which resulted in the partial loss of the use of his right arm and the institution of the present proceeding.
Particular portions of the evidence relied on by claimant as justifying the finding of the trial court to which we have heretofore referred will be' pointed out.
Among other things .Lester. Abbott, who testified as a witness for the claimant said that during harvest season there were no regular working hours for anyone around the elevator; frequently the force would work until 9 or 10 o’clock; sometimes they would go home to supper and come back; the day’s work wasn’t finished until they got everything done which could be done that day; on days when they went home for supper and then worked after supper George usually went back with him.
The record also credits him with having made this statement: “Sometimes after they considered the day’s work done, someone would come in with a load of wheat and say ‘would you come down and dump me,’ and they wofild. When you are working at an elevator the work isn’t always ever done, and if anything developed at the elevator that needed to be done it was part of the day’s work and they did it.”
Specific questions propounded and answers made by him as a witness read:
“Q. After you had gone home, did there any duty that should be performed come to your mind that- should be performed that day, Mr. Abbott? ■ A. Yes. .
“Q. Just what was that? A. Well, we were eating supper, and George said that he was going to' the show, and in the meantime there was quite a cloud coming up that evening from the west. I says to George, ‘If you are going downtown, you catch a ride or walk down or go down and shut those two doors.’ He knew where they were, he had been working there that afternoon, and he* said he would.
“Q. On this particular evening, did you suggest any way for him to get down to the elevator? A. As I told you awhile ago, we were sitting there at the table yet. I asked George where he was going. We had went down and taken a shower, and he had cleaned up, and I figured he was going to town. He said, ‘Well, I am going to the show,’ and I mentioned to him, I said, ‘If you are going to the show, you just go down and shut those doors. Either catch a ride or walk down, and shut those doors.’
“Q. You didn’t have anything to do with how he went down— A. I told him.specifically to go down-
“Q. I understand that, Mr. Abbott, but the question is, you had nothing - to do with the manner in which he got down there, did you? A: No, I had nothing to do with that.
“Q. And on this 25th day of July, you had completed your day’s work prior to going home to supper, hadn’t you? A. Yes.
. “Q'. Was there atíy further work that you had in your mind that had to be done other than the closing of these doors down there at the elevator that night? A. There wasn’t a thing.
“Q. Mr. Abbott, as a matter of fact, during the harvest season, particularly, quite often something you would think of that should have been done during the day, and you would go back to check that up? A. No, I wouldn’t say that. I believe, if I am not mistaken, that is the only time we ever went back after we had really closed down the elevator.”
Claimant as a witness on his own behalf, testified that nothing was said about the hours or number of hours he worked; that they never worked any special time or quit at a special time but' worked until they were through dumping wheat and things were cleaned up, all of which would be done before they went home.
In addition, the following questions and answers appear as a part of his testimony:
“Q. After you had gone home to supper, was anything brought to your attention about going back down there? A. Yes, Les told me — we remembered about the doors when we seen that cloud coming up; he told me to go down and close them after supper.
“Q. At that time, George, you were on your way to carry out your brother’s orders to close the doors, were you? A. Yes.
“Q. And as I understand you, when you left the house, you came downtown? A. Well, I was going down at that time to shut the doors.
“Q. 'You were on your -way down to shut the doors? A. Yes.”
As we approach consideration of. appellants’ first specification of error, which is that the trial court erred in adjudging the claimant sustained personal injury by accident arising out of and in the course of his employment with the respondent, let it be said there has been no attempt, in our relation of the record facts to detail all the evidence. On the contrary, our summary thereof and our reference to specific portions of the testimony' are made without regard to any evidence contrary to the trial court’s finding with full recognition of the rule, now so well grounded in this jurisdiction as to preclude argument or debate (Stanley. v. United Iron Works Co., 160 Kan. 243, 160 P. 2d 708; Lane v. St. Louis Smelting & Refining Co., 160 Kan. 495, 496, 163 P. 2d 362; Burb v. American Dist. Tel. Co., 160 Kan. 519, 523, 163 P.2d 402); that in an appeal in a workmen’s compensation cause this court is concerned only with evidence tending to support the award and does not consider any evidence which might have warranted a different or contrary conclusion.
Let it also be said that capable counsel for appellants do not seek to gainsay the rule. Neither do they attempt to- avoid its application or consequences. Simply stated their position is, that notwithstanding it and giving the appellee’s evidence the benefit of all inferences to which it is entitled under our decisions, the appellee has failed to establish facts sufficient to bring him within the purview of the workmen’s compensation act and is therefore not entitled to any award under its provisions.
In our consideration of the issue thus- raised by the appellants it should be remembered there are certain fundamental principles, often stated and somewhat elementary in character but nevertheless important, which' must be ever kept in mind as it is being determined. One — although it is not our function to weigh conflicting evidence — -is that the question of whether the trial court’s finding and judgment is supported by substantial competent evidence is a question of law, as distinguished from a question of fact (Brandon v. Lozier-Broderick & Gordon, 160 Kan. 506, 508, 163 P. 2d 384, and Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846). Another is that in order to be compensable under the workmen’s compensation act an accidental injury must be one “arising out of” as well as “in the course of” the employment (G. S. 1935, 44-501; Brandon v. Lozier-Broderick & Gordon, supra, and Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553). Still another is that the burden of establishing both of the elements last mentioned by substantial competent evidence is upon the claimant' (Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P. 2d 932; McMillan v. Kansas Power & Light Co 157 Kan. 385, 139 P. 2d 854; and Gamble v. Board of Public Utilities, 137 Kan. 227,19 P. 2d 729).
With the foregoing principles established we turn directly to the question of whether the record discloses the appellee has sustained the burden of proving the injury for which he claims compensation and on which the award in the court below was based occurred under conditions and circumstances which permit recovery of compensation.
At the very outset we are confronted with the provisions of G. S. 1935,44-508 (k), which read:
“The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
Appellee does not even pretend the proximate cause of his injury was his employer’s negligence. Neither does he contend that he would be included within the benefits of the compensation act if under like circumstances he had been injured while on his way to work in the morning, coming from work in the evening, going to and from the noonday meal, or on a personal errand. Nevertheless, he seeks to avoid the force and effect of the provisions of the foregoing quoted section of the statute on the ground they are inapplicable as to him since his evidence discloses that at the time of the occurrence of his injury he was on an erand for his employer and directly engaged in carrying out its orders in the furtherance of its business.
As supporting his position appellee cites a case which he states is the only one he has been able to discover in this jurisdiction dealing with liability in a situation where the employee has been sent on an errand by his employer and suffered injury while engaged on that mission.
In McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695, the claimant was engaged by the company as an assistant yardmaster. His place of employment was known as the “north switch shanty.” The company had provided and assigned to each employee a place to park his car. Upon arriving at work the claimant found that someone had parked their car in his space. He reported this to his foreman who told him to find out whose car it was and have it removed. Upon inquiry, he found that the ear belonged to a colored man employed in the ice-making department. He went to the ice plant and in endeavoring to get to the place where the man was ■working, fell into a vat of. hot water and was so badly scalded that death resulted. The company contended that he “was engaged in no work of his employer at the time- he was injured.” The lower court held that he was, based upon the question, submitted to the jury, of whether he was directed by his foreman to go to the ice plant on a specific errand. In affirming a judgment of the lower court allowing compensation, this court said:
“The question whether he was directed to go, not the nature of the errand, was the important thing — assuming, of course, that the direction, request, or order of the foreman was one which the nature of his employment authorized ■ him to give, and this is not seriously questioned here. The result is, the jury found that McDonnell was killed while on an errand on which his foreman had sent him. His injury, therefore, arose in the course of his employment. While the evidence on this question was conflicting, there was substantial evidence to support the jury’s findings; it was approved by the trial court, and we cannot review it.” (p. 329.)
The foregoing case does not uphold appellee’s position. McDonnell, the claimant, was not on the way to but had arrived at the place where he assumed the duties of his employment. In the case at bar the claimant never reached that location.
Other decisions relied on by appellee as sustaining the award have been carefully examined. The factual situations in each can be distinguished and in our opinion none of them is susceptible 'of that construction. They will be given specific but brief consideration.
Wise v. Central Dairy Co., 121 Kan. 258, 246 Pac. 501, turned upon the question of whether an injury occurred “in, on or about the factory” within the meaning of R. S. 1923, 44-505, since amended, and is not in point.
In Kennedy v. Hull & Dillion Packing Co., 130 Kan. 191, 285 Pac. 536, a traveling salesman injured in an accident on a highway was awarded compensation on the ground he was required to travel daily upon the highways, which was his place of work, in the performance of the duties of his employment.
Kirkpatrick v. Yeamans Motor Co., 143 Kan. 510, 54 P. 2d 960, approved allowance of compensation for injury resulting in the death of a night watchman who had been employed by the respondent and another company, to watch their used-car lots, across the street from each other, some four or five miles distant from the principal place of business of respondent, and who was found dead between the two places of employment under circumstances indicating he had been struck by a car.
In Mitchell v. Mitchell Drilling Co., 154 Kan. 117,114 P. 2d 841, the deceased workman was a “tool pusher” who suffered injuries resulting in his death while traveling between oil wells. Recovery was based on the premise such traveling was a part of his work.
In Matter of Grieb v. Hammerle, 222 N. Y. 382, 118 N. E. 805, 7 A. L. R. 1075, a cigar packer left the factory after working hours to deliver some cigars for and at the request of his employer. He was killed before his errand was completed and a compensation award was sustained.
It will be noted that in the cases just mentioned questions pertaining to allowance of an award did not turn upon the proposition of whether the injury to the employee had occurred while he was on his way to assume the-duties of his employment.
The final case to which appellee refers is State C. I. Fund v. Indus. Acc. Com., 89 Cal. App. 197, 264 Pac. 514, noted 87 A. L. R. Anno, 252. It involved a situation where an employee sustained injury resulting in his death while returning from performing a special service for his employer outside his regular duties as salesman in leaving home after his usual working hours to unlock the door of his employer’s store so that an electrician could enter and do some work. Its facts were held to create an exception to the so-called “going and coming rule” for the reason they established a service by decedent outside of his regular duties' as a salesman. The decision, although factually closest in point oí all those cited by appellee, is not decisive of the instant case.
Conceding for our purposes that at the moment of his injury appellee was on an errand for his employer and carrying out its orders in the furtherance of its business we are nevertheless, when the evidence is carefully examined, unable to hold that appellee sustained the burden of establishing facts which bring him within the scope of the act. Perhaps, since the most that can be said for his evidence is that he was a general helper at the elevator and on the way to perform work there when he was injured, a more correct statement of our conclusion is that he established facts which preclude him from its operation. The provisions of the statute (G. S. 1935, 44-508 [k]), in our opinion, are clear, unambiguous, complete in themselves and do not permit judicial welding.or construction. They mean exactly what théy say, namely, that the words “arising out of and in the course of employment” shall not be construed to include injuries to an employee "while he is on the way to assume the duties of his employment. Appellee’s evidence, giving it the benefit of every inference to which it is entitled, definitely established that when injured he was on his way to perform work incident to his employment. In that situation his injury was not compensable under the act and he cannot recover in a proceeding instituted pursuant to its terms.
The conclusion just announced, so far as we have been able to determine, is based upon a factual situation entirely different from any other to be found in our decisions. The only case we have been able to discover possessing somewhat similar characteristics is Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 255, which, although it supports and fortifies our opinion, is distinguishable and cannot be said to be decisive of it. There it was held:
“In a claim for workmen’s compensation where the superintendent of a filling station was responsible for the money taken in at the filling station and took it to his home with him each night, and was killed in a collision with a truck on his way to open the station in the morning while he had his employer’s money with him, the record is examined, and it is held that under all the surrounding facts and circumstances the accident which caused the death of deceased did not arise ‘out of’ his employment.” (Syl.)
We have not been unmindful of appellee’s claim, strenuously urged, that completion of work for the day at a regularly assigned place of business followed by a return to that place on an errand for an employer pursuant to its instruction in the furtherance of its business, creates an exception to the rule of the statute.
Obviously,. that contention has been decided by what has been heretofore stated. Notwithstanding, it is of sufficient importance to justify specific attention. On reexamination and more critical analysis of 44-508 (k), supra, we find nothing to warrant us in holding there are any exceptions to its plain and unequivocal provision that the words “arising out of and in the course of employment” do not include, injuries to an employee while on the "way to assume the duties of his employment. So construed, under the conditions and circumstances just outlined, an employee cannot escape the result of its operation.
Neither have we overlooked the many decisions cited by appellants wherein this court has defined the phrases “in the course of employment” and “out of employment” as found in the act. We pass them by without comment for the reason our conclusion simply means that, within the meaning of such phrases as used therein and so far as the act itself is concerned, injuries occurring on the way to assume the duties of employment are not compensable irrespective of whether they may be said to “arise out of or in the course of employment” as such words are construed in common parlance and there is, therefore, no occasion for a discussion of the niceties and perplexities of such phrases as defined in our decisions.
Nor do we ignore the force and effect of appellants’ extended argument, and their numerous cited cases, dealing with the question of whether there was any causative connection between the circumstances of appellee’s injury and his employment. They too, in view of our decision, need not be considered and merit little, if any, space in this opinion.
Since our decision precludes the granting of an award under the act nothing worth-while would be accomplished by proceeding with consideration of appellants’ other assignments of error.
The judgment of the trial court is reversed with directions to enter judgment denying an award. | [
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The opinion of the court was delivered by
Wedell, J.:
Two actions were filed to recover damages resulting from an explosion of natural gas. One action was filed by Ollafae Jelf to recover damages for the loss of a residence building. The other action was brought by the same plaintiff and M. C. Jelf, her husband, to recover for the loss of household goods and personal effects. This is an appeal from the judgment rendered on the second trial of these actions. The actions were consolidated on both trials on the former appeal and are again consolidated on this appeal.
The first trial of the actions resulted in a verdict and judgment for plaintiffs and defendant appealed. We reversed the judgment for trial errors and remanded the case for a new trial on all issues. (Jelf v. Cottonwood Falls Cas Co., 160 Kan. 112, 160 P. 2d 270.) The second trial resulted in a verdict and judgment for defendant.
The issues as joined by the pleadings are set forth at length in o.ur former opinion. The allegations of the pleadings need not be restated but reference is made thereto for purposes of this opinion. Generally stated, the cases were tried on charges of negligence on the part of defendant, which defendant denied. The latter also pleaded contributory negligence on the part of plaintiffs, which the plaintiffs denied.
Upon the issues thus joined the cases were tried. Special questions were submitted to the jury which, including the answers thereto, were:
“1. Was the property of the plaintiffs damaged by the reason of the explosion? A. Yes.
“2. Did the defendant supply gas to the plaintiffs’ residence at the time of the explosion? A. Yes.
“3. Did 'the defendant have knowledge of gas escaping into the residence before the explosion? A. Yes.
“4. Did the defendant inspect the plaintiffs’ premises before the explosion? A. Pipe from alley to meter & meter.
“5. If you answer the above question in the affirmative, state how mány times they inspected the premises? A. Twice.
“6. If you find that defendant did inspect the plaintiffs’ premises before the explosion, state whether defendant shut off the gas before the explosion? A. No.
“7. Did the plaintiff or plaintiffs hire anyone or cause anyone' to check or inspect the premises in question for escaping gas -and to make repairs that might be required or necessary?. A. Yes.
“8. If you answer Question No. 7 in the affirmative, state who were so employed? A. Bill Brown.
“9. Do you find that a person or persons at the instance of plaintiff or plaintiffs, went upon said premises and proceeded to make' such inspection, prior to the explosion? A. No.
“10. Did the plaintiffs or either of them, have knowledge or notice of escaping gas prior to the explosion? A. Yes.
“11. If you answer question No. 10 in the affirmative, state approximately for how long a period before the explosion they or either of them had that knowledge? A. Six weeks.
“12. Do you find that the plaintiffs had an automatic hot water heater with pilot light flame alight in operation in said residence at the time of the explosion and for considerable period prior thereto? A. Yes.
“13. State whether or not the plaintiffs continued to use natural gas in said residence after knowing that gas was escaping into the house? A. Yeg.
“14. What if anything did the plaintiffs fail to do that they should have done after knowledge of escaping gas or indications thereof were brought to their attention? A. To see that the gas was turned off immediately.”
.We shall continue to refer to -the parties as plaintiffs and defendant.
Plaintiffs’ first contention is the trial court erred in overruling their motion for judgment notwithstanding the general verdict. They base the contention on that portion of G. S. 1935, 60-2918, which provides:
“When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
They argue the special findings are so utterly inconsistent with the general verdict that the trial court erred in not setting aside the verdict and entering judgment in their.favor on the special findings.They insist the first six special findings disclose the defendant was guilty of negligence and that, those particular findings are therefore inconsistent with the general verdict. Under the instructions- given to the jury those findings did establish defendant’s negligence in the following particulars: Defendant examined only the meter and the pipe from the alley to the meter and did not examine the pipes, connections and fittings in the residence after it had been notified twice there was gas leakage from somewhere which was escaping into the residence; that, with- knowledge gas was escaping into the residence, defendant failed to shut off the gas before-the explosion.
Plaintiffs next contend findings No. 7, 8 and 9 are immaterial for the reason they prove no issuable facts in the case. Let us assume plaintiffs are correct on that point.
What about the remaining special findings? There was no motion to strike any finding on the ground it was not supported by substantial evidence. For the purpose of obtaining a ruling on a motion non obstante veredicto all special findings are admitted to be supported by the evidence. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924.) The last five findings disclose: Plaintiffs had knowledge of the escaping gas for a period of approximately six weeks prior to the explosion; at the time of the explosion and for a considerable period prior thereto plaintiffs maintained an automatic hot-water heater with a pilot light burning; plaintiffs continued to use natural gas in the residence after knowing that gas was escaping into the house; with the knowledge of escaping gas, which plaintiffs possessed, they should have seen that the gas was turned off immediately.
We need not pause to comment on plaintiffs’ testimony concerning the pronounced odor of gas which they testified existed in the house during the six-week period. It is sufficient to say that findings No. 10 to 14, inclusive, are consistent with the general verdict and disclose the jury believed plaintiffs also were guilty of negligence. Having found both the plaintiffs and the defendant guilty of negligence the jury rendered a general verdict in favor of the defendant. We thus find no legal inconsistency between the special findings and the general verdict. Manifestly the special findings, considered as a whole, do not overthrow the general verdict. Unless they clearly have that effect the general verdict must stand. (Montague v. Burgerhoff, 152 Kan. 124, 102 P. 2d 1031; Taggart v. Yellow Cab Co. of Wichita, supra.)
The rule is that a general verdict and special findings should be harmonized, if possible, and that every reasonable presumption is indulged in favor of the general verdict. (Moore v. Connelly, 119 Kan. 35, 237 Pac. 900; Jordan v. Austin Securities Co., 142 Kan. 631, 51 P. 2d 38; Montague v. Burgerhoff, supra.) In considering a question of inconsistency between the answers to special questions and the general verdict nothing will be presumed in aid of the special findings and every reasonable presumption will be indulged in favor of the general verdict. (Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155; Jordan v. Austin Securities Co., supra, p. 649.) Plaintiffs’ motion for judgment non obstante veredicto was properly overruled.
Plaintiffs next contend question No. 14 was improperly sub mitted to the jury for the reason it called fór a conclusion of law on the question of contributory negligence and not for a finding of fact. Clearly the question itself did not call for a conclusion of law. It called for an ultimate fact. Did the answer constitute a conclusion of law? It was the province of the jury to determine whether plaintiffs, as well as defendant were -guilty of negligence. They were so instructed. Was it not the province of the jury to determine whether plaintiffs failed to do something which they, in the exercise of ordinary care, should have done? On the former appeal we said the question of plaintiffs’ contributory negligence was one for the determination of the jury. The jury has now made its findings. We think the jury by finding No. 14 clearly meant to say that under all the evidence in the case it believed plaintiffs, in the exercise of proper care, should have had the gas turned off immediately. That constitutes the jury’s finding of an ultimate fact. It is not a conclusion of law. We therefore cannot disregard it.
Assuming, however, question No. 14 or the answer thereto were objectionable for any reason, there was no motion to strike the finding. From the record before us it is not clear any objection was made to the question before it was submitted to the jury. It appears if an objection thereto was made it was only on the ground the question was ambiguous. That objection, if made, clearly was not good. Furthermore, no objection to any finding of the jury was included in the grounds of the motion for a new trial. The result is the answer must stand.
Plaintiffs next call attention to the fact the jury, by a question submitted to the court during the jury’s deliberation, indicated it was confused by a portion of an instruction pertaining to defendant’s negligence. The question the jury asked was:
“Is it the state law that a public utility company is compelled to inspect and repair appliances such as stoves, etc. — and pipes — belonging to customer after gas has passed through meter into pipes owned by customers?” (Our italics.)
The portion of the instruction to which the jury referred and other instructions, in substance, advised the jury: It was negligence for defendant to permit gas to escape from its own pipes and meter and to permit it to accumulate in plaintiffs’ dwelling, or to negligently inspect or repair defects in the pipes, connections and appliances owned by either plaintiffs or defendant after having re ceived notice from plaintiffs that gas was escaping in their residence.
After a conference between the trial court and the attorneys the - jury was directed to retire with the instructions for further deliberation and was advised to return if it desired to do so.
During the conference between the court and the attorneys, previously mentioned, counsel for plaintiffs renewed a previous request for two instructions. One of them was:
“If the defendant gas company was notified that the gas was leaking into the house of the plaintiff, it was the duty of the gas company to. immediately inspect the premises, including the plaintiffs’ pipes, fittings and appliances to the end that the cause of the leaking gas might be discovered by it and if the leaks be in the pipe, fittings and appliances owned by plaintiffs to shut off the gas until proper repairs be made.”
Plaintiffs emphasize the language pertaining to defendant’s duty to shut off the gas. The requested instruction was in harmony with a statement contained in our former opinion in these cases. In that opinion while commenting on instructions which defendant had requested and on the instructions which were given in the former trial we said: “The instructions given on the whole fairly cover the law of this case.” (p. 120.) We are now informed the same instructions were given in the second trial.
• In the instructions given, the jury, as previously indicated, was advised it would constitute negligence for defendant to permit the gas to continue to enter plaintiffs’ dwelling after defendant had notice of its escape. It also should be observed the jury, among other things, expressly found that defendant, after having been notified of the leakage did not shut off the,gas. (Finding No. 6.) In view of the instructions given and the finding made thereunder we think the judgment should not be disturbed for failure to give the requested instruction.
In some respects the instructions given were more favorable to plaintiffs than the requested instruction. Under the instructions given the jury may have concluded it was defendant’s duty to repair plaintiffs’ pipes, fittings, connections and appliances after defendant had notice of the escaping gas. That, as we understand it, is not the law. It was defendant’s duty to properly inspect and to properly keep in repair its own pipes, fittings, etc. It was also defendant’s duty to’properly inspect the customer’s pipes,, connections and appliances, after having sufficient notice of a leak or leaks therein. If a dangerous condition was, or should have been, discov ered it then became defendant’s duty to shut off the gas until the customer could have his own pipes, connections and appliances properly repaired. (Miller v. Wichita Gas Co., 139 Kan. 729, 33 P. 2d 130; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112,118,160 P. 2d 270.) Manifestly, plaintiffs were not injured by that part of the instructions which was more favorable to them than it should have been.
Plaintiffs also requested the following instruction:
“If you find that the defendant gas company had notice of gas escaping into the house of the plaintiffs, and inspected the premises, or neglected to inspect the premises, and shut off the gas until such leak was located and stopped, then you should find that the defendant is guilty of negligence.”
Much of what previously has been said applies to this requested instruction. While, in the instructions given, the jury was not told in so many words that it was defendant’s duty, under the circumstances stated in the requested instruction, to shut off the gas, the jury was instructed it would constitute negligence for defendant to permit the gas to continue to enter plaintiffs’ dwelling after defendant had been notified of the leakage.
Plaintiffs, concede, in fact they insist, that under the instructions that were given, the jury, among other things, found defendant guilty of negligence in failing to shut off the gas. Under the circumstances we are not inclined to reverse the judgment for failure to give the requested instruction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original action wherein the plaintiffs seek a declaratory judgment within the court’s jurisdiction in a quo warranto proceeding determining the right of the defendant to hold the office of treasurer of Kingman county.
The cause is submitted on an agreed statement of facts which, omitting formal and immaterial statements therein found, reads:
“(3rd) That the defendant was by the Board of County Commissioners of Kingman County, Kansas, appointed to fill a vacancy existing in the. office of county treasurer, and that she qualified under such appointment on November 6, 1944. That she continued to serve under such appointment until October 9, 1945.
“(4th) That in the general election of 1944, Ida Herrington was duly elected as County Treasurer of Kingman County, Kansas, for the regular term commencing October 9, 1945. . That on October 9, 1945, Ida Herrington filed with the board of county commissioners her written declination, and that she did not qualify. Thereupon, the board of county commissioners declared a vacancy in such office.
“(5th) On October 9, 1945, the board of county commissioners appointed the defendant as County Treasurer of Kingman County, Kansas, and that she qualified and entered upon the duties of said office and has continued to this date to serve as such county treasurer.
“(6th) The defendant was a candidate, in the General Election of 1946, for the regular term for the office of county treasurer, said term commencing in October, 1947. That she received the highest number of votes for such office and was duly elected to the office of county treasurer for such regular term.
“(7th) That no person filed as a candidate for the unexpired term for county treasurer.' That, although on the general primary election ballot a place appeared to write in the name of a person for such unexpired term, no one received the requisite number of votes and, consequently, no one was nominated for such office. The general election ballots provided for the writing in of the name of a person for such unexpired term, and the name of Eleanora Cheatum, the defendant' herein, was written in by the voters for such unexpired term. The names of other persons were likewise written in for such unexpired term, but that the defendant received the highest number of votes and was elected to such unexpired term. Eleanora Cheatum was not a candidate for such unexpired term nor did she seek such office.
“(8th) That an unexpired term existed and that the appointment of Eleanora Cheatum by the county commissioners was only until the General Election of 1946. That the unexpired term was for the period from the time of election to the commencement of the next regular term in October, 1947.
“(9th) That the plaintiffs insist that the defendant is ineligible to serve the unexpired term, even though elected thereto, and that because of such fact a vacancy now exists in such office.
“(10th) That an actual controversy exists between the parties to this action as to whether or not the defendant is eligible to hold the office of county treasurer for such unexpired term, and that this action is brought to determine the right of the defendant to hold such office.”
From the foregoing statement of facts it appears the defendant served a portion of the term commencing October, 1943, and ending October, 1945, as county treasurer of Kingman county; she held that office by appointment during the next succeeding term from October, 1945, until the election in November, 1946; and she-now seeks to hold such office from November, 1946, to October, 1947, by virtue of haying been elected to fill the unexpired term of the regular term which commenced in October, 1945, and ends in October, 1947.
The plaintiffs’ contention is that under the circumstances heretofore related if the defendant qualifies and assumes the duties of the office of treasurer for the unexpired term she would be serving a third consecutive term in violation of article 4, section 2, of-the constitution of Kansas and that therefore she is ineligible to either qualify for or hold the office for such unexpired term. Plaintiffs’ position is bottomed upon the proposition that an unexpired term is a separate and distinct term in itself but they concede that if it is held to be a part of the regular term there is nothing in the constitution, the statute, or our decisions, which prohibits the defendant from continuing to serve as county treasurer until October, 1947.
Pertinent portions of the section of the constitution on which plaintiffs’ rely in support of their position read:
“General elections and townships elections shall be held biennially on the Tuesday succeeding the first Monday in. November in the years bearing even numbers. All county and township officers shall hold their offices for a term of two years and until their successors are qualified: ... No person shall hold the office of sheriff or county treasurer for more than two consecutive terms.” (Art. 4, § 2.)
In this jurisdiction there can no longer be any question about the force and effect to be given the last sentence of the constitutional provision just quoted. A person who holds the office of either sheriff or county treasurer during a part or all of two consecutive terms is ineligible to hold the office for the next succeeding term (see Coates v. Camp, 161 Kan. 732,173 P. 2d 266, and cases there cited). However, in the instant case, conceding defendant had served portions of two consecutive terms as county treasurer preceding her election to the unexpired term, in order for the prohibition of the constitution and the rule announced in the case just cited to have any bearing whatsoever upon her eligibility to continue to hold the office for the term in question, it must first be determined that such unexpired term is separate and distinct in itself and is not to be regarded as any part or portion of the immediate preceding regular' term so- held by her. Can it be said that such a conclusion is justified under the factual situation disclosed by the record? The parties make no claim, and a somewhat extended examination of our decisions does not reveal that the question of whether an unexpired term is to be regarded in law as a separate and distinct term or a part of the regular term has been determined by this court. Under such circumstances we turn to the statute and the constitution for light and guidance.
At the outset it seems clear both the constitution (art. 4, sec. 2), and the statute (G. S. 1935, 19-501), contemplate a county treasurer is to be elected for a regular term and that the duration of such regular term is two years. The one reads “all county and township officers shall hold their offices for a period of two years” and the other provides “a county treasurer shall be elected in each county for the term of two years, whose term of office shall commence the second Tuesday of October after his election.”
Next we direct attention to G. S. 1945 Supp. 25-312, which reads:
“All vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election. . . (Emphasis supplied.)
Of a certainty the italicized phrases “all vacancies in county office — shall be filled by appointment” and “such vacancy shall be filled by election” inferentially, if it cannot be said directly, refer to vacancies in the regular two-year term contemplated by the constitution and the two-year term of office expressly provided for by the statute and support the conclusion it is not a new term of office but the vacancy in the office which is filled by election.
Lastly, we call attention to G. S. 1935, 25-314. It reads:
“Any of said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and when elected they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified; but if appointed, they shall hold the same only until their successors are elected and qualified.” (Emphasis supplied.)
Beyond doubt, in o'Ur opinion, the emphasized language of this section, when tested by ordinary rules of statutory construction, requires an interpretation that the term of the one appointed or elected to fill a vacancy is to be regarded as a portion of the unexpired term of the person originally elected to office for the regular term and without whose resignation or other action resulting in the office becoming vacant, there would be no occasion for the filling of the unexpired term.
And finally, we note, as a practical matter that to uphold plaintiffs’ position would' make possible the very thing the constitution prohibits. Any person subject to its inhibition might make himself eligible to hold office indefinitely, by simply taking action which would result in some other person being appointed to fill out the-waning days of each second two-year term to which he might be' elected.
Based, on the conclusions heretofore announced we have no hesitancy in holding that the unexpired term of office of a person appointed o.r elected to fill a vacancy under G. S. 1945 Supp. 25-312 and G. S. 1935, 25-314, is not a separate arid distinct term. Standing alone it may constitute one of the two consecutive terms mentioned in article 4, section 2, of the constitution for the simple reason it is actually a part of a regular term but such fact is in no sense to be regarded as indicating that when served in conjunction with the regular term it is to be considered as a consecutive term in and of itself. On the contrary, in that situation, it is to be regarded as a portion of the regular term out of which it is carved and without which it does not exist. It follows, the defendant is eligible to serve the remainder of the unexpired two-year term to which she has been elected, and that the plaintiffs’ contention there is now a vacancy in the office of county treasurer by reason of the constitutional inhibition against the serving of a third consecutive term cannot be sustained.
The decisions cited by the plaintiffs in support of their position have been examined with care but will not be discussed. It will •suffice to say they do not deal with the subject of whether an unexpired- term, concededly carved out of part of a regular term, is in itself to be regarded as a separate and distinct term and for that reason are not decisive of the fundamental question here involved.
In closing it should be stated the pleadings and the agreed statement of facts when considered’ in their entirety raise the question of defendant’s right to hold the office for the regular term commencing in October, 1947. Without laboring such question we hold that when applied to the facts of this case our decisions (see Coates v. Camp, supra), definitely compel a conclusion the 1947 term to which defendant was elected is her third consecutive term and within the prohibition of article 4, section 2, of the constitution.
Not involved, but mentioned by the parties, is one other proposition which, because of its public interest, will be mentioned. Plaintiffs suggest that if some other person had been elected to the unexpired term, it might be held the defendant would be eligible to serve the regular term commencing October, 1947. We do not agree. Under the reasoning of our decisions, the test is whether a county treasurer who has been reelected to that office has theretofore served a part or all of two consecutive terms. By serving as county treasurer from October 9, 1945, until November, 1946, since she had already served part of a preceding term, the defendant became ineligible to hold the office during the 1947 regular term, irrespective of whether she was elected to or ever served the unexpired 1945 .term.
In accord with the conclusions herein announced the defendant is entitled to judgment and it is held: (1) Defendant is eligible to hold the office of county treasurer for the unexpired portion of the regular term beginning in October,, 1946, • and ending in October, 1947; (2) she is not eligible to hold such office for the regular term commencing in October, 1947, and extending to October, 1949; and (3) the costs of this action are to be paid by Kingman county. | [
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The opinion of the court was delivered by
Harvey, C. J.:
The petitioner is an inmate of our state penitentiary under judgment and commitment from the district court of Crawford county in the case of State v. Dunfee, No. 2681. The record before us discloses that on March 8, 1940, the county attorney of Crawford county filed in the district court of that county an information under G. S. 1935, 21-533, charging Robert Allen and Harvey Dunfee with the grand larceny of a described automobile. The punishment for this offense prescribed by our statute (G. S. 1935, 21-534) is confinement at hard labor for a term of not less than five nor more than fifteen years. On the sáme day the information was filed the petitioner was brought into court and the journal entry recites that the state appeared by the county attorney and the defendant appeared in person; that he was duly arraigned and entered a plea of guilty; that it was made to appear to the court that defendant was between the ages of sixteen and twenty five years and previously had never been convicted of a felony; whereupon the court sentenced him to confinement in the Kansas state reformatory until discharged by the board of directors thereof, not to exceed the maximum term of imprisonment provided by statute, to wit, fifteen years. The record before us further discloses that he was paroled from that institution; that he violated his parole, was taken into custody and transferred to the state penitentiary. We need not recite the details of those proceedings.
His principal point upon which he bases his right to a writ of habeas corpus is that he was not represented by counsel in the proceedings in the district court, nor was he fully informed of the consequences of his plea and of his right tó have counsel. He further complains that the officers mistreated him in order to get him to enter a plea 'of guilty. This last charge is denied by the officers in question. It is conceded by respondent that petitioner had no counsel, but respondent points to the statute then in force (G. S. 1935, 62-1304) which, briefly stated, provides for the appointment of counsel for defendant at his request.
Upon the filing of respondent’s answer the court appointed Alan F. Asher, of Lawrence, a reputable attorney of this court, to act as the petitioner’s attorney. He has filed herein the depositions of the petitioner and of Robert Allen. They testified that on the last Saturday of February, 1940, after finishing their work for the day, they cleaned up and went down town in the evening, where they were joined by Bethel Baker. About eight o’clock in the evening they found a car on the street which had the keys for the ignition in the car. They got into the car and drove it to three of the small towns not far from Pittsburg and back to Pittsburg, where they left it shortly before midnight on one of 'the main streets not far from the home of the petitioner. The total distance they drove the car' was about sixty miles and .at one of the small towns they filled the gas tank with gasoline. They had no business at any of these towns, although they did stop in one of them to see the petitioner’s uncle. They simply went for a ride and took turns driving. At that time petitioner was twenty years of age, Robert Allen sixteen and Baker seventeen. On March 5 they were arrested and taken to the jail at Pittsburg. The charge against Baker was disposed of in the juvenile court. They were in the Pitts-burg jail two days and were then taken to the county jail at Girard, the county seat, and placed in different rooms. The. county attorney first talked to Allen, who frankly told him all about what was done. His ’Statement was recorded on a phonograph, which the county attorney then took into the room where the petitioner was, had Allen’s statement reproduced, and asked the petitioner what about it, and he said that was about right. The county attorney then talked to both of them and told them that if they “didn’t fight the case” and entered a plea of guilty they would be sent to the state reformatory, where they would be kept about ten months. A deputy sheriff made a similar statement to them. They testified that they wanted an attorney, but had no money to employ one, but neither of them says he told anyone about that. The proceedings in the district court followed the next day. They testified that in the courtroom the information was read hurriedly, the court asked them how they would plead, and they each pleaded guilty and sentence was pronounced upon them the same day. They testified that the court did not discuss the nature of the offense or make any inquiry of them as to what they had done; did not advise them they were entitled to counsel, or that the court would appoint one for them if they desired an attorney. Upon this point the judge of the court,filed an affidavit in which it is stated in substance that he did not recall this particular case, but knew that it was his custom always when accused persons were brought into his court without an attorney to tell them they were entitled to an attorney and to a trial by jury if they desired it, and that if they were unable to employ an attorney the court would appoint one for them. We have a statute (G. S. 1935, 21-544) which makes it a misdemeanor for .one to take the automobile of another “with intent to deprive the owner of the temporary use thereof.” If the circumstances now testified to by the petitioner and Allen were told to the county attorney, as they say they were, this would have been the appropriate statute under which to charge them.
In habeas corpus cases by one who has pleaded guilty to a charge this court does not go back into the question of whether the party was guilty of the charge as made. We mention the testimony of the petitioner and Allen only to disclose that this was a case in which the accused should have had the benefit of counsel. Under our statute as it then existed the court was required to appoint counsel only upon defendant’s request. That statute was changed so that now a record must be made of what takes place where defendant, without counsel, pleads guilty to an offense. Before this statute was enacted it would have been appropriate to have made such a record. Had that been done we would not now be confronted with conflict of testimony with respect to what was said and done in this case. We have no occasion here to decide that conflict in the testimony. Here were two young men, residents of the city, who had never been in trouble before, charged with a serious offense, one which branded them- as felons, with long years of penal servitude. Counsel should have been appointed for them. Had the court inquired of them the circumstances of the offense, and had they told the story they now tell, the plea of guilty should not have been accepted. Even had our present statute been in force the court could not have found that counsel would not have been of benefit to them. We shall not labor the point. Our previous decisions and decisions of the United States Supreme Court, under circumstances closely related to those here, have held in such cases that the procedure had in the district court with respect to the petitioner and Allen was not in harmony with due process of law. (See Willey v. Hudspeth, ante, p. 516, this day decided, and the authorities cited therein.)
The result is that the judgment of sentence and the plea of the petitioner made in the district court of Crawford county be and they are set aside, and that respondent deliver the petitioner to the sheriff of Crawford county and that the sheriff return petitioner to the district court of that county for further procedure in harmony with law. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
This is an appeal from an order granting a permanent injunction against the maintenance of a liquor nuisance. Appellant makes two principal contentions; First, that the nuisance, if any, had already been abated and that therefore, at the time of trial, there was nothing to enjoin; and second, that the injunction was improperly granted because only a single transaction involving an isolated sale of intoxicating liquor had been shown.
The facts, not disputéd, may be briefly stated. The. defendant was the owner and operator of an establishment in Lyon county known as “The Wagon Wheel.” On May 16, 1946, the sheriff of Lyon county conducted a “raid” upon the establishment and arrested the defendant for alleged violation of the liquor laws. He found on-the premises several pints of whisky, three partially filled pint bottles of whisky, a number of drinking glasses containing intoxicating liquor and numerous broken whisky bottles and cartons bearing the printed labels of brands of whisky.
On May 18, 1946, the county attorney filed in district court a verified petition asking that an injunction be issued against the defendant, enjoining him from maintaining a liquor nuisance upon the premises described or elsewhere in the county, and alleging, inter alia,
“That the said defendant uses and occupies said building and causes to exist,' keeps and maintains and operates therein a place where intoxicating liquors are sold in violation of law and a place where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage and a place where intoxicating liquors are kept for sale, barter and delivery im violation of law, and that said place was so maintained and used for all said purposes for a substantial time prior to the filing of this petition and up to and including the time of filing of the petition herein.
“That the said place so maintained and occupied by the said defendant for a substantial time, to wit: for a period of at least one month, was and is a common nuisance to the people of the State of Kansas and the vicinity thereof and that said nuisance exists at this time.”
These allegations constitute allegations of the maintenance of a common nuisance within the definition of section 21-2130, G. S. 1935.
A temporary injunction was issued upon motion of the county attorney, and on May 19, 1946, the case came on for hearing on the verified petition, for a permanent injunction. No answer was filed by the defendant. At the conclusion of the opening statement by the county attorney, counsel for the defendant stated that the facts hereinbefore recited would be admitted, and, also, that the defendant would admit that a sale of intoxicating liquor had been made on the premises on the day of the raid by a man alleged by the state to be an employee of the defendant.
The defendant then demurred to the state’s evidence. The demurrer was overruled, and no evidence was offered by the defendant. Judgment .granting a permanent injunction was entered and this appeal followed.
Defendant’s contention that the permanent injunction was improperly issued because the nuisance, if any, had already been abated, and that, therefore, there was nothing further to enjoin, is without merit. In the first place, the record simply shows that the defendant had been arrested and that the temporary injunction had been issued. Neither the arrest of the defendant nor the temporary injunction in any way affected any lawful operation of the establishment and there was nothing in the state’s evidence to indicate that the place had in fact been closed.
On this point the appellant calls attention to the fact that the statute defining as common nuisances places where intoxicating liquors are unlawfully sold, etc., is drawn in the present tense, reading “All places where intoxicating liquors are manufactured, sold, bartered or' given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors, . . T (G. S. 1935, 21-2130, italics supplied), and argues that since the temporary injunction stopped the unlawful practices, it could not at the time the permanent injunction was issued be said that they were then being carried on. Therefore, says the appellant, the statute had no application to the situation then existing. This specious argument hardly calls for any comment. Such a literalistic construction of the' statute would defeat its very purpose. All that the law violator would need to do would be to close his establishment prior to issuance of a permanent injunction and thus prevent its issuance. Under such an interpretation, the state would have to show violations right up to the moment of the hearing. No precedent is needed to fortify a rejection of a statutory construction that would lead to such an absurd result. However, the contention now made by appellant was specifically answered in State v. Smithhisler, 106 Kan. 587, 189 Pac. 135, wherein it was said:
“The cross-examination of the plaintiff’s witnesses developed that the defendant had stated that he had sold the place and had closed it before the action was commenced. After continued sales of intoxicating liquor extend ing over a period of months, an injunction cannot be avoided by ceasing to sell such lyiuors a few days before an action for an injunction is commenced. It is an easy matter to sell intoxicating liquors for a time and, when a storm is brewing, cease such sales and close the place until the storm has passed by, and then resume the sale of such liquors, and repeat that operation until the state is successful in getting the place closed.” (p. 587.)
Appellant’s second contention is that the state’s evidence showed only a single transaction involving an isolated sale of intoxicating liquor on the premises and that such evidence was insufficient to show the maintenance of a nuisance under the statute. This argument ignores the other evidence, heretofore set out and which need not be again recited, which had probative value. The evidence was ample to support'the issuance of a permanent injunction, a primary purpose of the statute being to strengthen law enforcement by prevention of further violations, particularly-on the premises involved. Moreover, this court has repeatedly held that in order to support a permanent injunction under this statute, it is not necessary to show a multiplicity of specific sales nor to show that the establishment has been unlawfully operated over an extended period of time.. (Among many cases, see Pottenger v. State, ex rel., 54 Kan. 312, 38 Pac. 278; State v. Geselle, 131 Kan. 729, 293 Pac. 494; State v. Chandler, 145 Kan. 323, 65 P. 2d 557; State v. Rogl, 100 Kan. 590,164 Pac. 1165; State v. Schoenthaler, 63 Kan. 148, 65 Pac. 235; State v. Lewis, 63 Kan. 265, 65 Pac. 258; State v. Thomas, 155 Kan. 374, 125 P. 2d 375.)
We find, no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in habeas corpus whereby the petitioner seeks'his release from the custody of the sheriff of Shawnee county. On February 14, 1944, in the district court of that county, petitioner entered his plea of guilty to a charge of grand larceny and on that plea the district court sentenced him to the Kansas State Industrial Reformatory. On the same day the district court paroled him to his father, one of the conditions being that he refrain from violating any of the laws of the state of Kansas. On July 9, 1946, the district court, upon a showing that petitioner had violated the laws of Kansas, revoked the parole and ordered the sheriff to arrest the petitioner and commit him to the county jail to remain until the further order of the court. Petitioner's attempt to appeal from the order revoking his parole came to naught and .he then commenced the instant proceeding.
In his petition for a writ, petitioner alleges that he is unlawfully restrained of his liberty by the sheriff and lodged in the county jail, by reason of the order revoking his parole, and that the pretended order of revocation is completely void on its face; that he was paroled by the district court on February 14, 1944, and in granting the parole the court stated it was for two years; that by oversight and inadvertence the county attorney’s office, in preparing the parole, failed to state or include in the parole the provision for termination at the end of two years, and that evidence will be offered to show and satisfy this court that the extent of the parole was for two years; that an application for an order nunc pro tunc was made on July 9, 1946, and was denied by the district court. Other allegations made are explanatory of those set forth.
Upon the filing of the above petition this court made an order staying further proceedings in the district court until the final order of this court and directing the sheriff to show cause why the writ prayed for should not be issued. The sheriff has filed a return, setting forth that petitioner on February 14, 1944, entered his plea of guilty to a charge of grand larceny, was sentenced to the reformatory and on the same day paroled. Copies of the journal entry of judgment and of the parole are attached. He also alleged that on July 9, 1946, the same being one of .the days of the April, 1946, term of the district court, which was the first regular term after the expiration of two years from the date of the parole, the district court entered an order revoking the parole and ordering the sheriff to arrest petitioner and commit him to the county jail pending the further order of the court, and that petitioner was in his custody under and by virtue of that order. It is here noted that the copy of the parole attached to the return contains no provision or language providing that the term of the parole is for two years or for any fixed period of time.
The statutory provisions for paroles may be found in G. S. 1935, ch. 62, art. 22, as amended, and references here made are to section numbers.
Under section 2201 the district court is given the power to parole persons convicted of a violation of the criminal laws of this state. Under section 2203 provision is made as to felonies for which paroles may be granted, and under the classification there made a parole may be granted to a person convicted of grand larceny. Under section 2204 when any person has been paroled under section 2203, the court granting the parole may revoke the parole at any time without notice. This section contains other provisions not now necessary to notice. Under section 2205, provision is made for a bond and conditions thereof of a person paroled under section 2203. It is here noted that none of the above sections make any provision as to the length of time any parole may be granted. Under section 2209 provision is made for limitations on paroles. As to felonies — and petitioner was convicted of a felony — it is provided that no person paroled under the provision of section 2205 shall be granted an absolute discharge at an earlier period than two years from the date of his parole, nor shall such parole continue for a longer period than ten years, “Provided, That if no absolute discharge shall be granted nor the parole terminated within the time in this section limited, it shall be the duty of the court, at the first regular term after the expiration of such time, to either grant an absolute discharge, or terminate the parole and order the judgment of sentence to be complied with, but if the court shall fail to take any action at such time, such failure to act shall operate as a discharge of the person paroled.”
Petitioner’s contention, as presented by his petition and as argued in his brief is that when he was paroled on February 14, 1944, by the district court, that court fixed its termination at the end of two years, and that as the parole was not revoked until July 9,1946, or over two years later, the attempted revocation was a nullity. In support of that contention, he directs our attention to Badgley v. Morse, 132 Kan. 544, 296 Pac. 344, where the offense was a misdemeanor, and the defendant was paroled upon statutory conditions and that he pay the fine and costs assessed. No further order concerning the parole was made until about four years later when an attempt was made to revoke the parole. In an original habeas corpus proceeding we held the attempted revocation came too late for the reason that under the statute quoted above the failure of the district court to take any action within the time fixed operated as a discharge of the person paroled. The case is not in point here.
Petitioner has filed a transcript of the proceedings had in the district court on February 14, 1944, when he pleaded guilty to the crime of grand larceny and when he was paroled. That transcript discloses the district court heard evidence supporting petitioner’s application for a parole, and after considering it stated among other things that it was paroling'petitioner “partly because if you are sent down to Hutchinson they will probably hold onto you only about ten months, but if I parole you I have my fingers on you for two years.” Petitioner contends that this language made his parole one for two years and if not revoked within that period, he was absolutely discharged. We think that the construction placed on the quoted language is too broad. The court was giving a reason for granting the parole, but not fixing a limitation on it. Assuming the district court could have granted a parole of the nature and upon the conditions urged by the petitioner, it did not do so insofar as the record of the judgment of sentence and the documentary parole are concerned, and petitioner concedes that his application was denied to have a nunc pro tunc order to make the record show what he contends happened.
But we need not discuss that at any length. Under the statutes above reviewed, the district court was without power to divest itself of its statutory duties and fix a time for an absolute discharge at the time it granted a parole. It could not, at the granting of the parole make any order that dispensed with the provisions of G. S. 1935, 62-2209. In Badgley v. Morse, supra, this court stated it would take judicial notice of the terms of court in a judicial district. In the instant case we not only take such notice, but the return of the sheriff alleges, and in part the record discloses, that petitioner was paroled in February, 1944; that two years expired February, 1946, and the first regular term of the district court thereafter commenced on the first Monday in April, 1946, and the next term thereafter commenced on the first Monday of September, 1946. It is therefore clear that when the district court revoked petitioner’s parole on July 9, 1946, it was at the first regular term after the expiration of two years from the date of his parole, and that the action was taken at a time when the district court’s duty was “to either grant an absolute discharge, or terminate the parole and order the judgment of sentence to be complied with.”
On the record presented, and under the statutes applicable, the petitioner was not entitled to an absolute discharge prior to the time his parole was revoked, the parole was properly revoked and petitioner is not entitled to writ of habeas corpus. The writ of habeas corpus is denied, and the stay heretofore ordered is set aside. | [
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The opinion of the court was delivered by
Harvey, J.:
This appeal involves a controversy over the proceeds of a beneficiary certificate. Plaintiffs are the brothers and sisters of the insured member, now deceased. The contesting defendant' formerly was the wife of the insured, but was divorced from him and later married to another person. The trial court sustained plaintiffs’ demurrer to her answer, and she has appealed.
The Prætorians Life Insurance Company, a corporation, is a fraternal benefit society organized for the sole benefit of its members and their beneficiaries under the laws of Texas, and authorized to do business in Kansas. On November 9, 1924, Frank Bussey, of Pittsburg, made application for membership in the society, which issued to him a beneficiary certificate in the sum of $2,000, in which his wife, Ruby Bussey, was named as the beneficiary. The contract between the society and its members consists of the application, the beneficiary’s certificate, and the charter and constitution of the society. Article 24 of the constitution, relating to beneficiaries, section 4, reads:
“If there shall be a divorce of beneficiary from policyholder, then the interest of the named beneficiary shall be canceled; and if no other beneficiary is named by the policyholder, then amount of policy shall be paid as provided in section 3 of this article.”
Section 3, just referred to, provides:
. . If the policyholder dies and no beneficiary survive him, then the amount of the policy shall be paid:
“First, to the widow or widower if no child or children survive, but if a child or children survive the policyholder, then one-half to the widow or widower and the other one-half in equal parts to the policyholder’s surviving children.
“Second, if the policyholder leave no widow or widower surviving, then to the policyholder’s children in equal parts.
“Third, if said policyholder leave neither widow nor widower nor children surviving, then to the policyholder’s father and mother in equal parts or to the surviving of either.
“Fourth, if the policyholder dies leaving neither of the foregoing surviving, then to his or her brothers and sisters in equal parts. If no father or mother, brother or sister, nephew or niece survive the policyholder, then the benefits shall revert to the life benefit funds.”
On March 4, 1929, Ruby Bussey obtained a divorce from her husband, Frank Bussey, and thereafter married a Mr. Lindsley, and she is the person who is a party to this action as Ruby Lindsley.
On January 20,1932, Frank Bussey wrote the society at its Texas office.
“I wish to change beneficiary in my policy. It is now Ruby Bussey, wife, but she has divorced me and remarried. I want it made to my brothers and sisters. . . .”
The change of beneficiary had not been made in the benefit certificate when Frank Bussey died, February 14, 1932, leaving no widow, children, or parents surviving him, but leaving brothers and sisters.
When plaintiffs filed this action they made the society alone defendant. It answered setting up the nature of its incorporation and contract, that it had issued a benefit certificate to Frank Bussey, as above stated, and admitted assessments had been paid thereon to the time of his death; and its liability on the certificate; but alleged that Ruby Lindsley, formerly Ruby Bussey, claimed the proceeds of the policy because she was named therein as beneficiary, and for the further reason that she claims to have paid the assessments, or part of them; and offered to pay the proceeds of the certificate into court for the benefit of the parties found to be entitled thereto, and asked that Ruby Lindsley be made a party defendant, and that it be relieved from further liability. These requests were granted. Whereupon plaintiffs filed an amended petition making Ruby Lindsley a party defendant. She filed an answer, admitting or alleging many of the facts hereinbefore stated, and further alleged that the society operates through a supreme body known as the supreme senate, and subordinate bodies known as councils, which were in fact lodges conducted on a ritualistic plan; that only persons who were members of local councils were eligible to procure benefit certificates; that Frank Bussey, at the time of taking out this certificate, was a member of the local council at Pittsburg, Kan., and continued to be until his death; that the statute of Texas, under which the society was incorporated — which statute was pleaded— permits the society to designate the classes of persons who may be beneficiaries; that section 1 of article 24 of the constitution of the society provides that beneficiaries may include the wife, any relative, fiancée, business associate, trustee, charitable institution, person dependent upon the insured, or to the estate of the insured, or any persons, interests or entities not forbidden by law. The answer admitted that section 4 of article 24 of the constitution of the society was in force and effect at the time the certificate was issued, and since, but alleged that one E. W. Church, during all the time pertinent, was a director of the society and its recorder, and among other things had full power and authority to receive and receipt for dues; that- she had paid the dues to E. W. Church, as such officer of the society, since she obtained a divorce from Frank Bussey, and that Church had received the payments from her, knowing of the divorce, and it is alleged by reason of those facts that the society waived section 4 of article 24 of its constitution.
Plaintiffs' demurrer to this answer was sustained, and appellant contends that the court erred in sustaining the demurrer.
It will be seen from the above statement that the principal ques tion to be decided is whether section 4 of article 24 of the constitution of the society had been waived. Appellant argues that the facts stated in her answer, namely, that she had had possession of the certificate since it was issued, and since her divorce from the insured she had paid the dues to R. W. Church, a director of the society in charge of its business in Kansas and the recorder of the local council at Pittsburg, and that he received these payments knowing that the divorce had been granted. In support of that view appellant cites Cooley’s Briefs on Insurance (vol. 2, p. 1340; vol. 7, p. 6393) to the effect that the acceptance of assessments or dues, with the knowledge that the beneficiary designated was not eligible, is a waiver of the objection. The text appears to be based upon Benefit Association v. Blue, 120 Ill. 121, 11 N. E. 331; Lindsey v. W. M. A. Society, 84 Ia. 734, 50 N. W. 29; District Grand Lodge No. 18 v. Gardner, 27 Ga. App. 145, 107 S. E. 774; Howard v. Commonwealth Beneficial Asso., 98 N. J. L. 267, 118 Atl. 449; and Coulson v. Flynn, 181 N. Y. 62, 73 N. E. 507.
In each of these cases the society knew that the beneficiary named was not within the class of persons eligible as beneficiaries at the time the application was made and the certificate issued, or had later become so, and had received dues with such knowledge and was endeavoring to defeat liability in any sum and to any person. None of them involves the effect of a provision in the constitution of the society such as section 4 of article 24 in this case. Appellant also cites and relies strongly on Snyder v. Mystic Circle, 122 Tenn. 248, 122 S. W. 981, where the court held that the receipt of dues from a divorced wife amounted to a waiver of by-laws with respect to beneficiaries, but the facts in that case differed in two material respects from those pleaded here: (1) In that case the certificate was made payable to the named wife, or in the event of her death prior to that of the insured, to his children. Some ten years after the certificate was issued she procured a divorce from her husband. She wrote the society, advising it of that fact and asking what her rights would be under the certificate, and received a reply from the chief officer of the society that unless the insured changed the beneficiary, which he had a right to do, she would receive the payment in the event she outlived the insured and in the event future dues were paid; and, relying upon that, she paid the dues. In this case there is no pleading that the chief officers of the society knew any thing about the divorce, neither is it pleaded that anyone connected with the society advised her that she would receive payment of the amount of the certificate if the dues were kept Up. (2) In that case there was no definite provision in the articles of, incorporation, constitution, or by-laws of the society, or of the certificate, which prohibited a divorced wife from receiving the benefits of the certificate. Here there is a specific provision (section 4, article 24). In that case the court said:
“Its charter made no provision for a forfeiture of her rights as beneficiary in the event of her divorce from the assured.” (p. 260.)
Hence, the case is not in point.
Naturally, the constitution of this society was prepared by its supreme senate or legislative body. There is nothing to indicate that any recorder or director of the society had any authority to waive any provisions of the constitution. Appellant was bound to know, and we take it from the pleadings she did in fact know, the provisions of the constitution which, so far as here pertinent, are that if she was divorced from her husband her rights as beneficiary terminated, and benefits under the certificate should be paid, in the absence of other designated relatives, to brothers and sisters of the insured.
Appellant cites Filley v. Insurance Co., 91 Kan. 220, 137 Pac. 793, where a wife, at the time the certificate was issued, but later divorced from the insured, recovered; but that decision turned upon the form of certificate issued in that case, which contained no provision similar to the one under consideration here.
Considering all that was said on behalf of appellant, we conclude the facts pleaded here do not justify a holding that the society waived the sections of its constitution under consideration, if, indeed, it could waive them as against plaintiffs, a question which we find it unnecessary to determine. The simple fact that appellant paid dues after the divorce does not confer upon her the rights of a beneficiary in contravention of the constitution of the society. (Modern Woodman v. Comeaux, 79 Kan. 493, 101 Pac. 1; Rollins v. Independent Order, 124 Kan. 166, 257 Pac. 754.)
In cases involving provisions of the contract between the parties to the effect that the divorced spouse ceased to be a beneficiary it appears to be uniformly held that he or she cannot recover even though dues have been paid. (See Knights of the Maccabees v. Brown, 186 Mich. 284, 152 N. W. 1085; Modern Brotherhood of America v. Quady, 175 Minn. 462, 221 N. W. 721; Nitsche v. Security Benefit Assn, et al., 78 Mont. 532, 255 Pac. 1052; Appleby v. Grand Lodge, Sons of Hermann, 225 S. W. 588 [Tex. Civ. App.].)
Appellant argues the society alone can raise the question of her eligibility to receive the proceeds of the certificate, citing Obrist v. Grand Lodge, 123 Kan. 616, syl. ¶ 2, 256 Pac. 955. In Coffman v. Security Benefit Association, 131 Kan. 328, 291 Pac. 753, it was said:
“It (the rule stated in the Obrist case) is not applicable where the statute and charter of the society prescribe the classes of persons to whom benefits mas' be paid.” (p. 332.)
And in Slovenska Narodna Podporna Jednota v. Zupancic, 135 Kan. 692, 694, 11 P. 2d 1026, the soundness of the rule stated so broadly in the Obrist case was questioned, and it was pointed out that care must be used in its application. In that case the society admitted liability on the certificate, and because of rival claimants to the fund filed a petition interpleading all of them, set out in general their respective claims, and asked the court to determine who was entitled to the fund, and it was held the court had jurisdiction to determine that question. In this case the society did the same thing by its answer to plaintiffs’ petition. In order to be relieved from costs of litigation it was compelled under our statute (R. S. 60-418) not to take the side of either of the contestants. It lay before the court its contract — the application, certificate, charter and constitution — with the insured and his beneficiaries, and set out in general terms the contentions of the rival claimants, and asked the court to determine to whom payment should be made. This was a sufficient raising of the question of appellant’s right to the fund, as it was also of'plaintiffs’ right thereto. The court was authorized to determine the question.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a school teacher to recover from a consolidated school district on her written contract to teach school made with one of the districts entering into the consolidation. Plaintiff recovered, and defendant appeals.
Pursuant to the practice of engaging- teachers in the spring for the school year beginning the next fall, the board of a school district, which, for convenience, may be called the Louisville district, entered into a contract with plaintiff to teach school for a térm of nine months, commencing September 7, 1931. The contract was signed on April 20, 1931, was in the form prescribed by the state department of education, and provided that plaintiff should be paid a salary of $145 per school month, payable monthly. After the contract was signed, petitions were circulated in the Louisville district for the calling of an election to vote on a proposition to consolidate the district with another, which,' for convenience, may be called the Wamego district. The election was held on June-16, and the vote was favorable to consolidation. On June 29 the Wamego district voted to consolidate. The county superintendent designated the consolidated district as Consolidated Rural High School District No. 1, Pottawatomie county, Kansas. About July 13 officers constituting a school board for the consolidated district were elected. The consolidation proceedings were instituted and consummated pursuant to Laws 1931, chapter 275. School opened in the consolidated district at Wamego on September 7. Plaintiff was not employed as a teacher in the school of the consolidated district. On September 7 plaintiff, with other teachers and the principal of the Louisville school, reported for duty and conducted school at the Louisville schoolhouse for several days, when they were served by the sheriff with notice from the board of the consolidated district to desist and to surrender school property.
The action was commenced on July 27,1932. The petition alleged in substance the facts which have been recited, and unsuccessful effort by plaintiff to obtain employment. The prayer was for judgment against the consolidated district in the sum of $1,305, with interest and costs.
The answer of defendant alleged the contract was not entered into in good faith, but was entered into in collusion with the Louisville district board in an attempt to defeat prospective consolidation. There was no evidence to support the allegation, and the general finding in favor of plaintiff was to the contrary.
The answer pleaded plaintiff had knowledge that the Louisville district could and likely would be consolidated with the Wamego district. The finding for plaintiff negatived that allegation, and the finding was supported by the evidence. There was dissension in the district, litigation over issuance of bonds to build a new schoolhouse in the Louisville district was pending, no steps had been taken to initiate consolidation proceedings, it took elections in two districts to determine whether consolidation would take place, and it was not stipulated that performance of plaintiff’s contract was contingent on consolidation.
The answer pleaded that the Louisville district was a public corporation, subject to disorganization at any time at the will of the legislature, and that power of the corporation to contract was subject to the limitation that the district might be disorganized at any time by proceedings authorized by the legislature. This part of the answer stated no defense.
It is true continued existence of the Louisville and Wamego districts was wholly dependent on the will of the legislature, and they could be disorganized, as they were disorganized, by proceedings prescribed by the legislature. When, however, the legislature creates corporate instrumentalities for the accomplishment of public purposes, permits them to operate, and in the course of operation to acquire property and incur debts, there must be a sort of winding up of the corporate business after dissolution. The property must go somewhere, and the debts must be paid by somebody. When, as in this instance, consolidation takes place and a new corporation comes into existence comprising the territory of the districts which were consolidated, the consolidated district takes the property and pays the debts. The legislature may provide what shall become of the property, and may provide how the debts shall be paid; but in the absence of specific statutory provisions, the rule just stated prevails... (43 C. J., title, Municipal Corporations, § 123 bb [aa].)
The opinion, in the first case cited in support of the Corpus Juris text, Mount Pleasant v. Beckwith, 100 U. S. 514, contains a very full- discussion of the subject under consideration. One paragraph from the opinion reads:
“Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or it may be divided and the moieties of their territory may be annexed to others; but in all these cases, if the extinguished municipality owes outstanding debts, it will be presumed in every such case that the legislature intended that the liabilities as well as the rights of property of the corporation which thereby ceases to exist shall accompany the territory and property into the jurisdiction to which the territory is annexed.” (p. 529.)
This rule applies to school districts as well as to other municipal or quasi-municipal corporations. (Thompson v. Abbott et al., 61 Mo. 176; Hoffield v. Board of Education, 33 Kan. 644, 7 Pac. 216.)
Defendant contends plaintiff’s contract was wholly “executory,” and action taken by authority of law intervened before anything was done pursuant to the contract. Plaintiff promised to teach, defendant promised to pay, and the fact that the teaching and the paying were to begin in the future did not affect the obligation of the contract or lessen the detriment to plaintiff if the contract were not performed on the school district’s side.
The statute by virtue of which consolidation took place provided that property of a consolidating district should become property of the consolidated district, but said nothing about debts. Hence, defendant contends, it should not be liable beyond the value of the property it received. The amount received would not compensate plaintiff for her loss of employment. She is entitled to full compensation and, as indicated in the opinion in the case of Mount Pleasant v. Beckwith, supra, legislative consolidation proceedings which would deprive her of full benefit of her contract would violate its obligation, contrary to the provision of the constitution of the United States relating to that subject.
Plaintiff was ready and willing at all times to perform the contract on her side, and could not find employment within the school year. It is contended, however, she did not diligently seek employment by the consolidated district board.
Plaintiff resided at Topeka. On July 13, 1931, the board of the consolidated district sent her a letter requesting her to attend a meeting of the board to be held in Wamego on July 16. The letter avoided reference to the subject of employment or possible employment as a teacher, and merely said: “You are urged to be present at this meeting, as a matter of importance is to be taken up.” Without knowing the purpose of the meeting, plaintiff set out to attend it. She went to Louisville, and was there informed no meeting would be held. The general finding in her favor includes a finding that she acted reasonably, and was not at fault in failing to attend the meeting.
Actions against defendant by two other teachers, Dorothy Hinman and Dorothy Mayden, were consolidated for trial in the district court with the Fuller action, and judgments were rendered in favor of plaintiffs in those cases. It is stipulated that this appeal shall be determinative of the three cases.
The judgment of the district court in each case is affirmed.
Johnston, C. J., and Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an award under the workmen’s compensation act. The commissioner made an award denying compensation, and an appeal was taken to the district court, which awarded it.
As the appeal deals solely with the question of whether the injuries arose out of and in the course of the employment, the following must be detailed.
John Fairchild, husband of one plaintiff and father of the others; was employed by the appellant as a pumper-on an oil and gas lease and had been so employed for eight years preceding his death. He was killed by the fall of a tree on December 7, 1931, under‘the following circumstances: Previous to the day in question L. S. Hyde and Charles S. Geary, with the consent of the landowner, but without permission of appellant, had cut a tree for firewood for their own use. On- December 7 they were again on the premises to fell another tree for firewood for the same purpose. The tree was a dead one and was about fifty feet in height. It stood on the north bank of a stream running east and west. To the northwest of the tree were oil tanks and to the west of the tanks was a power house. South of the power house a swinging bridge crossed the creek. Leading from the power house were shackle rods used to operate pumps, one of which rods crossed the creek about 115 feet west of the tree. Others crossed further to the west and oil lines also crossed the stream. The tree leaned to the south, and in cutting it a block and cable were attached to make it fall to the north so that it would not fall into the creek bed. While Mason and Geary were felling the tree, Fairchild came to where they were working and without their request assisted them with the cable. When the tree fell it shattered, and Fairchild was struck by pieces of the tree and died as a result. Fairchild was standing about fifty-eight feet from the stump of the tree when he was struck. During the time the tree was being felled, the pumps on the lease were being operated by Fairchild. As to the above there is little, if any, dispute. There was also testimony as to Fairchild’s duties as a pumper. The appellant’s foreman, Stephens, stated Fairchild was supposed to keep the shackle rods free from obstructions; that the tree was 116 feet from any property of the company, and that a man wouldn’t be loyal if he didn’t look after the company’s property if anyone had gone on the lease to interfere with the machinery or other property, and that the pumper was expected to take care of the property under his control during working hours. The appellant’s general superintendent, Smith, stated that Fairchild’s duties were to take care of the power-house engines and other properties under the direction of Stephens; and that, in addition to the enumerated duties, he should preserve and protect the property, and that if anything unusual happened while he was there, in the absence of the witness and Stephens, he should use some judgment of his own. There was dispute as to whether, if the tree had fallen into the creek, in the event of high water it would have floated against the shackle rods or pipe lines. It may be remarked that the creek in question is said to be a sort of cut-off between the Verdigris river and Washington creek, and the direction of flow would depend to some extent on whether the water was higher in the creek than in the river or 'vice versa. As supporting the contention that Fairchild, in doing what he did, was protecting appellant’s property, it was shown that Fairchild looked after the property generally; that when automobiles and persons came on the le'ase he watched to see what the purpose was; that he had taken logs out of the creek, saying he didn’t want them to wash down and break his oil lines in two"; that the oil lines and shackle rods were not buried but suspended across the creek; that the creek in question frequently overflowed; then when the water in the creek rose he took the belts off the machinery; and that he had cut weeds along the creek banks. The district foreman of appellant testified that when these rivers (creeks) came out they always watched the river pretty closely; that the tree leaned south and if it had fallen into the stream it might have gone against the oil lines if the river (Verdigris) had backed up the creek. He also testified:
“Q. Is it any part of the duty of the pumper on the lease, or John Fairchild, on the lease in question, to watch the property against thieves and trespassers? A. It is naturally while he was on duty, and naturally I suppose it would come under his line of work. I won’t say he was hired by us for that. I am not going to say that part of it.
“Q. We know that isn’t his sole employment, of course, but he is supposed to watch and protect all the company’s property while on the lease, is he not? A. If I was to see a man setting a tank afire —
“Q. Just answer my question. He is supposed to watch and protect the company’s property? A. While he was on duty I would say he was.”
The trial court, in deciding the case, called attention to a part of the evidence above mentioned, and said:
“I think it is common knowledge that when a large tree is felled it usually falls with a crash, and especially if it is dead tree, and the limbs fly in many directions, and it seems to me that Mr. Fairchild was in the line of his duty in assisting in seeing that this tree, not only did not fall in the creek, but that it did not injure the pipe lines or property of the company, when it fell, and either strike the lines or shackle rods, or throw limbs against them, so as to interfere with the workings of the plant.
“The distance from these lines, 114 feet, is small, and a large tree 60 or 70 feet in height, with the chance of dead limbs being scattered over the premises, certainly put the company’s property in danger. And if the tree fell in the creek, the chance of logs or limbs being left, so that they might form an obstruction against the lines in case of high water, was a matter of concern to the man in charge of the property. There was certainly apparent danger to the property, and I have no doubt that the deceased, in the exercise of his best judgment, felt he was acting for the best interest of his company. I am, therefore, of the opinion that the death of the deceased was the result of an accident which arose out of and was in the course of his employment.”
The trial court found that the death of John Fairchild was the result of an accident that arose out of and in the course of his employment, and rendered judgment in favor of appellees and against the appellant.
The trial court having made his finding, our inquiry is limited to determining whether there was any evidence which, as a matter of law, supports the verdict.
In Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, it was said:
“Whether a finding or judgment of a trial court is sustained by sufficient evidence — that is, substantial, competent evidence — is a question of law, as distinct from a question of fact. When this question is presented to this court, it will examine the evidence solely for the purpose of determining that question.” (p. 624.)
Reference in the above case is made to Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73, wherein it was held:
“It is the responsibility of the district court, under the compensation act, to find the facts. The jurisdiction of this court is limited to questions of law and we can only examine the evidence for the purpose of determining whether there was substantial evidence to sustain the judgment of the district court. (Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952; Shay v. Hill, 133 Kan. 157, 299 Pac. 263.)” (p. 638.)
No good purpose would be served by reiterating all of the testimony. An examination of the same shows that Fairchild was expected to look after the lease on which he was working; that he had during the period of his employment removed logs from the creek so that in event of flood they would not damage the property of his employer; that, while possibly remote, there was danger that the tree felled into the creek might drift against the pipe lines and shackle rods and cause damage or that it might shatter and hit the shackle rod 116 feet distant.
In Bushing v. Iowa R. & L. Co., 208 Ia. 1010, 226 N. W. 719, a fireman left his usual place of work, apparently either to open or close windows which ventilated the boiler room, which windows were fifty feet from the boiler which the fireman attended and were opened and closed from a balcony or gallery which was ten or twelve feet above the boiler-room floor. On this balcony was a water heater. The fireman’s body was found on the water heater. A test showed that the metal chain which opened and closed the windows had come in contact with a conduit which was charged with electricity. In discussing whether the accident arose out of and in the course of his employment, the court said:
“An injury occurs in the course of employment when it is within the period of the employment at a place where the employee reasonably may be in performing his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. Southeastern Express Co. v. Edmondson, 30 Ga. App. 697, 119 S. E. 39. See, also, Granite Sand & Gravel Co. v. Willoughby, 70 Ind. App. 112, 123 N. E. 194; Fairbank Co. v. Industrial Commission, 285 Ill. 11, 120 N. E. 457; Bryant v. Fissell, 84 N. J. Law 72, 86 Atl. 458; New Amsterdam Gas Co. v. Sumrell, 30 Ga. App. 682, 118 S. E. 786. An injury in the course of employment embraces all injuries received while employed in furthering the employer’s business and injuries received on the employer’s premises, provided that the employee’s presence must ordinarily be required at the place of the injury, or, if not so required, emlployee’s departure from the usual place of employment must not amount to an abandonment of employment or be an act wholly foreign to his usual work. Shoffler v. Lehigh Valley Coal Co., 290 Pa. St. 480 (139 Atl. 192); Von Ette’s Case, 223 Mass. 56 (111 N. E. 696). An employee does not cease to be in the course of his employment merely because he is not actually engaged in doing some specifically prescribed task, if, in the course of his employment, he does some act which he deems necessary for the benefit or interest of his employer. Associated Employers’ Reciprocal v. State Ind. Com., 82 Okla. 229 (200 P. 174); McCrary v. Wolff, 109 Neb. 796 (192 N. W. 237).
“The evidence in this case is ample to show that Bushing’s presence on the gallery was not in violation of any rules of the employer, and that if he had desired to open or close the windows, it was his privilege to do so. An accident to an employee may arise in the course of his employment, although he is not actually working at the time of the injury. Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind. App. 545 (116 N. E. 330). There is nothing in the record which would tend to show that Bushing intended to abandon his employment, or that his presence on the gallery was for purposes other than those for which he may rightfully have gone there. We must hold then that the injury, whatever its cause, occurred in the course of his employment.” (p. 1018.)
While perhaps Fairchild was overcautious in assisting Hyde and Geary in felling the tree so that it would not damage his employer’s property, it cannot be said there was no causal connection between his employment and his injury, and neither can it be said that in assisting them he went entirely outside of his employment and became a mere volunteer. This case can be readily distinguished from Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, relied on by appellant. In that case the injured person, at his own suggestion, attempted to move the foreman’s automobile to accommodate persons other than employees of his employer, and while moving the automobile was struck by a train and killed. It was held that the employer was not concerned about how the foreman came to work or where he left his automobile, nor about the truck loaded with timbers, nor whether they struck the foreman’s automobile, and that these matters had no connection with Seller’s employment. In this case, however, we have an employee hired to look after the lease and to protect the same, and who in times past had done in varying degree just what he was doing when he was killed. Whether he was overcautious and too apprehensive about possible danger to his employer’s property makes no difference unless it can be said there was no causal connection between his employment and the accident. Both appellant and appellees cite many decisions discussing the meaning of the phrase “arising out of and in the course of employment,” but it is not necessary that each be mentioned, for their application to this case is not close owing to the difference in the facts, and no good purpose would be served in pointing out such differences. We are satisfied in this case that the injury was sustained by the decedent in a manner arising out of and in the course of his employment.
The judgment of the lower court is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action is in form one of mandamus commenced by the attorney-general to compel the state corporation commission to assume performance of certain duties. The 1933 session of the legislature passed an act which committed performance of the duties to the state corporation commission. Another and later act committed performance of the duties to the charter board and the corporation commission. The purpose of the action is to obtain a declaratory judgment determining which act controls.
Previous to the 1933 session of the legislature R. S. 1931 Supp. 17-1229 was a part of the speculative-securities law and related specifically to the granting, denial and cancellation of blue-sky permits. The section required the bank commissioner to perform certain functions in connection with these subjects but committed final action to the charter board. At the 1933 session it was deemed advisable to improve the law without, however, making any redistribution of power between the bank commissioner and the charter board. To effectuate this purpose senate bill No. 322 was introduced on February 8. The senate passed the bill on February 17, and on that day it was sent to the house and referred to the committee on banks and banking. On March 9 that committee reported, recommending the bill for passage, with some amendments not material here. On March 18 the house committee of the whole recommended passage of the bill as amended, subject, however, to amendment and debate. Further action on the bill was not taken until March 21, and the action then taken caused the trouble which is the subject of this lawsuit.
On March 13 senate bill No. 613 was introduced. The title read:
“An act creating a state corporation commission, and transferring to and imposing upon the same all jurisdiction now existing in the present public service commission and all jurisdiction and power of the charter board and commissioner of banking with reference to speculative securities, and repealing chapter 259 of the Laws of 1929, being sections 74-601, 74-602, 74-603, 74-605a, 74-605b, 74-605c, 74-606 and 74-608 of the 1931 Supplement to the Revised Statutes.”
Section 4 of the bill transferred to the state corporation commission all the authority previously possessed by the bank commissioner and the charter board. The bill was speedily put through both branches of the legislature and became a law on March 18, on publication in the official state paper. (Laws 1933, ch. 275.) The law did not enlarge, restrict, or otherwise change the powers of the charter board and bank commissioner under R. S. 1931 Supp. 17-1229, or under pending senate bill No. 322. Administration of the speculative-securities law was simply taken from the charter board and the bank commissioner and was vested in the newly created corporation commission.
On March 21, three days after the corporation-commission act became operative, senate bill No. 322, then on the house calendar on third reading, subject to amendment and debate, was reached for consideration. The bill was carefully amended in this manner: Wherever the words “bank commissioner” appeared, they were stricken out, and the words “corporation commission” were substituted. As amended the bill was passed by the house, the senate concurred in the house amendments, and on March 24 the governor approved the bill. The bill provided it should take effect on publication in the statute book, which was published on June 5. (Laws 1933, ch. 148.)
To summarize, under the old law, the blue-sky law was admin istered by the charter board and the bank commissioner. Under the corporation-commission act, the blue-sky law was administered by the corporation commission. Under the law taking effect June 5, a portion of the blue-sky law is to be administered by the charter board and the corporation commission. The attorney-general contends this result is absurd and cannot in reason reflect the legislative intention.
It cannot be doubted the legislature knew all about passage of the corporation-commission act. After that act became effective, the house, where senate bill No. 322 was pending, took up that measure for final disposition. The words “bank commissioner” appeared twenty-three times, and the words “charter board” appeared seventeen times. The bill was considered line by line. Wherever the words “bank commissioner” appeared they were stricken out, and the words “corporation commission” were inserted. The words “charter board” were consistently left in the bill.
The first part of the law as passed relates to registration of securities by qualification. It provides for examination of statements and documents required to be filed under the preceding section of the speculative securities act and provides, if advisable, for a detailed inspection, examination, audit and investigation of the affairs of the security promoter. This investigation is to be made by • the corporation commission, and the law provides as follows:
“And said corporation, commission shall furnish a complete statement and record of its inspection, examination and investigation, together with a copy of the appraisal aforesaid, to the charter board.”
If the corporation-commission act were to govern, it is not likely that body would be required to make a report to itself. Investigation by one body and report to another is here provided for in unmistakable terms. The statute continues as follows:
“The charter board shall, within ten days after the corporation commission has made its report to it, give the applicant for registration a hearing if he so desires, and said charter board shall have power to make an independent investigation, inspection and examination . . .”
The statute also contains the following provisions:
“That upon complaint being made to the corporation commission or to the charter board, and notice being given to the corporation commission of such complaint, the said corporation commission may forthwith suspend the order granting the permit pending final hearing.”
“If the charter board, upon, a full hearing, shall find that there are just grounds for the complaint made, and that the issuer, promoter, broker . . . have violated any of the provisions of this act, or of the order of the charter board, or of the corporation commission . . . said charter board shall make an order canceling the permit hereinbefore granted.”
“That before any permit shall be issued by the corporation commission under the order of the charter board, as herein provided, all stock or securities of any kind issued, or to be issued, in payment of property, patents, formulae, good will, promotion or intangible assets shall be deposited by the person to whom they are to be issued or by the company or promoter issuing them, with the corporation commission of the state of Kansas, to be held by it in escrow.”
In all these instances the words “charter board” and the words “corporation commission” are in such juxtaposition it is impossible to say the legislature did not know what words it was using or did not know the meaning of the words it did use. Consideration of the sense of these provisions and of the entire act necessitates the same conclusion. If it be conceded the legislature forgot for the nonce that under tire corporation-commission act all powers of the charter board had been vested in the corporation commission, the legislature subsequently framed and passed an act devolving powers and duties on the charter board with all the definiteness, certainty, and solemnity attending passage of the corporation-commission act. The later act cannot be rewritten by simply striking out the words “charter board,” where they appear, and substituting the words “corporation commission.” As written the two acts cannot be harmonized. The result is the later act must prevail.
The judgment is rendered accordingly. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action to set aside a judgment rendered on default. On June 8, 1932, a judgment was rendered in favor of Peter Carl Matthies against the Union Products Company, and F. M. Corl, its manager. The defendants did not answer or appear, and after proof by plaintiff of his claim judgment was rendered in his favor. On January 28, 1933, defendants filed a motion to vacate the judgment, alleging that the court was without jurisdiction in that the service upon defendant was insufficient and void, that the return of service made by the sheriff was inadequate and without effect, and further there was a contention that the petition did not state a cause of action against the defendants. Upon the testimony taken on the motion the court ruled that the motion should be sustained as to F. M. Corl. This was done with plaintiff’s consent, but the court overruled the motion as to the Union Products Company. That company has appealed from the decision.
The fact that service of summons was made upon F. M. Corl, as the representative and agent of the Union Products Company, was amply established by the evidence. The return of the sheriff relating to service was in substance that a copy of the summons was served upon F. M. Corl, personally, and also as the representative and agent of the company; that no one had been designated by the company upon whom service might be made, and that service was made upon Corl as the agent and representative of the company in Wichita, where Corl, as general manager, was doing business for the company, and was held out to the public by the company as their agent and representative at Wichita. That he was the general manager of the company, which had its headquarters in Cleveland, Ohio, is conceded, and that Corl was doing business for the company at Wichita, where and when he was served, was well shown. It was also admitted or proven that the company was selling its products throughout Kansas, and while it did not have a warehouse or dispensary for its products in Kansas, it had had dealings with its customers in the state, and that its general manager was doing business, at the time he was served, in adjusting a controversy with a customer in Wichita. Besides this, he came to Kansas representing the company, not only to settle the controversy in Wichita, but for the purpose of settling a controversy in Valley Falls, Kan., and still another at Hutchinson, Kan., and, as we have seen, was adjusting a controversy with a customer when he was served. When the summons was handed to Corl as agent of the company he was told that it was a summons; he took it but then threw it into a trash basket. On the testimony as to the vacation of the judgment, the trial court, after a hearing and a rehearing, upheld the service and denied the motion of the company.
The first and controlling question in the case is: Did the defendant waive defects in the service, if any there were, when it challenged the validity of the judgment upon nonjurisdictional as well as jurisdictional grounds?
The motion to vacate was upon the alleged grounds that the service was defective and void and, also, that the facts stated in the petition did not state a cause of action in favor of plaintiff and against the defendants. This is shown by the defendant’s brief on this appeal. It states the steps taken by it in the motion to vacate, and after calling attention to jurisdictional defects, it stated that the judgment was void for the reasons:
(a) “The court was without jurisdiction to render judgment”; and (b) “The petition did not state facts to constitute a cause of action in favor of appellee and against appellant, and F. M. Corl.”
Where a defendant in a motion to vacate a judgment challenges the sufficiency of the petition as to stating a cause of action, it constitutes a general appearance and a waiver of objections that,-defendant had not been properly or legally served with a summons as fully as if he had appeared and answered on the merits of the action. This has been the settled law in this state from the earliest cases to the present time. The fact that a party may designate his motion as a special appearance to raise jurisdictional questions only will not prevent the invoking of action of the court upon a subject matter of the suit, a nonjurisdictional matter, from operating as a waiver of the jurisdictional objections raised. In the early case of Cohen v. Trowbridge, 6 Kan. 385, it was decided that:
“A motion in a cause based wholly on an alleged want of jurisdiction is not an appearance generally, or a waiver of any irregularity in the proceedings by which a party is attempted to be brought into court; but a motion, grounded wholly or in part upon error in the judgment, or upon irregularities, aside from the question of jurisdiction, is such waiver as constitutes an appearance.” (Syl. ¶ 3.)
In another case where a defendant who claimed that he was not served with summons and a judgment was rendered against him filed a motion to vacate the judgment because of that defect and also added to the motion the ground that the plaintiff did not state facts sufficient to uphold the judgment, it was held that the motion, though called special, was in fact a general appearance, and it was decided:
“Where a party against whom a judgment is rendered files a motion to vacate such judgment as void, and such motion is based upon nonjurisdictional as well as upon jurisdictional grounds, held, that thereby such party enters a general appearance, although in the motion he says that he specially appeal’s.” (Burdette v. Corgan, 26. Kan. 102, syl. ¶ 1.)
In Life Association v. Lemke, 40 Kan. 142, 19 Pac. 337, where it was contended that a judgment rendered against the corporation should be set aside because the officers served were not officers of the company upon whom service could be made, and they added to the motion to set aside the judgment the ground that the plaintiff’s petition did not state facts sufficient to constitute a cause of action against the defendant, it was held, in consonance with the earlier decisions, that their motion to set aside the judgment, including nonjurisdictional grounds, operated as a waiver of the question of jurisdiction and made the defendants parties to the action as if they had voluntarily appeared at the trial.
In Investment Co. v. Cornell, 60 Kan. 282, 56 Pac. 475, a judgment against a corporation was rendered by default. Later defendant filed a petition for a new trial under the code in which it attacked the judgment upon the ground that no summons had been served upon it, and in the petition asked to have the judgment vacated on the nonjurisdictional ground that there was no consideration for the note upon which the judgment was rendered. It was held that by contesting the judgment on other than jurisdictional grounds the corporation had entered a general appearance in the action and waived all defects in the service of summons.
The case of Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962, holds with the general trend of authorities that a motion by a defendant to set aside a judgment rendered against him which contains both jurisdictional and nonjurisdictional grounds constitutes a general appearance in the case. (See, also, Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073; Helm v. Railway Co., 109 Kan. 48, 60, 196 Pac. 426, 198 Pac. 190; Harris v. Oil Co., 110 Kan. 532, 538, 204 Pac. 754; Marler v. Mortgage Co., 111 Kan. 488, 493, 207 Pac. 823.)
While the defendant insists that his appearance on the motion to vacate was special, and further that the court did not pass on the nonjurisdictional ground, the record discloses that defendant persisted in pressing the court to decide that question. The court first responded that it had not carefully read and considered the petition, but was of the opinion the defendant was too late in raising the question on its motion. Counsel for defendant then said:
“Then you are overruling it also for that reason?”
“The Court : That is part of the reason.”
“Counsel: I wanted the court to make a ruling of this kind, vacating this judgment because it is a void judgment. I claim one of the reasons is because there is no cause of action stated in the petition. Do I understand you are overruling my motion for that reason as well as these others?”
“The Court: Both.”
Thus we see that defendant clinched the nonjurisdictional ground to its demand and -was not satisfied until a ruling was obtained leaving no question that it amounted to a general appearance and waived the defects, if any existed, in the service of summons upon the defendant.
The view we have reached makes it unnecessary to consider the question of the validity of the service upon the defendant and other questions discussed in the brief. The judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action under our civil-damage statute (R. S. 21-2150), in which plaintiff seeks to recover for the loss of her means of support in consequence of the intoxication of her husband produced by Jamaica ginger sold him by defendant. The trial court sustained a demurrer to her evidence, and she has appealed.
Briefly stated, the petition alleged that plaintiff is the wife of J. P. Coy, upon whom she was dependent for her means of support and from whose labors and personal earnings she received her support; that early in March, 1930, he was earning about $300 per month; that he owned and operated a barber shop in the city of Norton and had a large and profitable business, and in connection therewith sold barber supplies; that defendant owned and operated a drug store in the city of Norton, and among other things sold an intoxicating liquor, commonly known as “Jamaica ginger,” for beverage purposes, which plaintiff’s husband drank and thereby became intoxi cated from the use thereof, and as a result of drinking the same and of the intoxication aforesaid became afflicted with paralysis, a disease commonly called “Jake paralysis,” and that as a direct and proximate result thereof and in consequence of the sale of said intoxicating liquor by the defendant to J. P. Coy, husband of plaintiff, and of his affliction caused by drinking the same and by his becoming intoxicated therewith, he became wholly incapacitated from performing labor and became and is an invalid, and as a result thereof plaintiff has been and is deprived of her means of support, to her damage in a sum named. The answer admitted that plaintiff is the wife of J. P. Coy, that he was engaged in the barber business at Norton, and that defendant owned and operated a drug store in Norton, and alleged that about March 4, 1930, defendant had in his store for sale, for medical purposes, a patent medicine known as Jamaica ginger, used in the treatment of stomach and intestinal disorders, and that any sales made by defendant were for medicinal purposes only; that such Jamaica ginger had been purchased by defendant, bottled, labeled and stamped “U. S. P.”; that patent medicines are so stamped when they have passed the pure-food-and-drug requirements of the United States, and that defendant relied upon the purity of such medicine by reason thereof; that the use of pure Jamaica ginger could not cause paralysis, as claimed in plaintiff’s petition, and if J. P. Coy purchased any .Jamaica ginger of defendant and drank the same and became paralyzed such condition was not the result of intoxication or the use of pure Jamaica ginger, but was due to the presence of some foreign ingredient of a poisonous character in the Jamaica ginger, the kind, nature and presence of which was then and is now unknown to defendant; and it was specifically denied that the injury complained of in plaintiff’s petition, commonly called “Jake paralysis,” was either proximately or remotely the result of intoxication.
The evidence may be summarized as follows: Plaintiff testified that she is the wife of J. P. Coy, to whom she was married in 1912; that he is a barber, and has been engaged in that business in Norton for fifteen years, and since 1929 has had a shop of his own; that prior to March 4, 1930, he was addicted to the habit of drinking intoxicating liquors, but “not a great drinker”; he lost no time from his work by reason of drinking, so far as she knew. After that date she observed that he became physically impaired, unable to walk, his feet dragged, and his hands were paralyzed. After she first noticed this it became worse — he got' helpless, would fall to the floor, and there came a time when he could not walk and was required to go to bed. Plaintiff took care of him, took him to Waconda Springs for a time, and had doctors visit, examine and treat him, without substantial change from these various efforts; that from about March 4, 1930, until March 28, 1932, he was unable to work and contributed nothing to her support. Previously he had supported plaintiff entirely. During this time she not only had to care for him, but support herself. At the time of the trial there had been some improvement in his condition — he could walk some, drive a car, and she received sorhe income from the shop, which was being operated by others. Plaintiff saw several bottles of Jamaica ginger which her husband had brought home and of which he drank the contents.
J. P. Coy testified on behalf of plaintiff that he had lived in Norton since 1915, was a barber, the husband of plaintiff, that he owned and operated a shop and sold barber supplies, and in March, 1930, had a prosperous business; that he had been a drinking man for a good many years — a pretty steady drinker; that he had often been intoxicated; that he had used all kinds of intoxicating liquors, including vanilla extract, and previous to 1930 had bought Jamaica ginger from others than defendant. Defendant purchased the drug store in Norton in 1929. Early in January, 1930, he first bought Jamaica ginger from the defendant, and between that time and March 4, 1930, had bought about twenty-five bottles of it.
“The first bottle I got there I took home with me and drank it just before I ate supper, and I could feel the effects of it. I had been intoxicated and know what the effect of intoxicating liquor is. You take a drink, and after it gets through burning you have a right smart kick. That is what I drank it for, to get the kick. . . . After I bought the first bottle in January I went back for more. Sometimes four or five times a day. I would take spells, not take a drink for a week, and then I would start again. In each instance that I bought that I had the same feeling and effect from it.”
At times defendant was out of it and said he would let the witness know when he got more in. At one time defendant came to the top of the steps and called to the witness and said: “The old man is in town.” The witness understood by that the shipment of “Jake” had arrived. Sometimes he drank it in the drug store, and sometimes he took it away with him, or drank a part of it and took the rest away.
“The first few bottles I drank the only effect I had was alcohol — like drink ing alcohol. The first bottle I drank I felt just like I took a drink of alcohol or whisky, only it burned. Make you feel kinda dizzy — feel pretty good, like you owned half of the world, something like that. I had been intoxicated and this gave you that drunk effect. That was true each instance when I purchased this Jamaica ginger. It did not all taste alike. . . .
“Q. What was the difference in it? A. The last bottle I drank in there tasted like licorice and, I don’t know — it had an awful taste. I said, ‘George, something is wrong with that,’ and he said, ‘No, it is all right; it has got plenty of kick.’ ”
That was the last bottle he bought. He drank a part of it and poured the rest out, because it did not taste right. He went home.
“It made me sick, and I have been sick with jakeleg ever since. I never did get over it. As soon as the alcohol effect left I got sick at my stomach and continued to remain sick. I was sick for about three weeks or a month— that same feeling that I couldn’t eat anything. , . . After I had taken this bottle I noticed, the next morning it hit my stomach. It would just quiver and shake. That quit, and it went to my legs.”
Later it went to his hands, and he was totally incapacitated for some time and was forced to quit the shop and had trouble running the business. He had other barbers employed and received forty per cent of their income, but out of this he had to furnish supplies and pay rent.
“I finally lost my trade. I cannot stand up and work now. I have a stool that I sit on and shave a little and cut hair some.”
The last bottle, that tasted bad, was the one which gave him the paralysis. He drank it after quitting time, about seven o’clock in the evening. The same afternoon he had bought a bottle of Jamaica ginger from defendant, about four o’clock, and drank it about five-thirty.
“But it didn’t seem to affect me, it only gave me a little power, and that died down and I thought I would get another bottle. I have been intoxicated many times. I never had paralysis from any of that intoxication. It never paralyzed me. My stomach would always work all right. I was acquainted with the fellows in town that drank almost daily. They never got any paralysis of their feet or hands by drinking any intoxicating liquor that I know of, except jakeleg.”
Testifying to the intoxicating effect upon him of the two bottles of Jamaica ginger he drank on the day in question, which was the 4th, 5th or 6th of March, he testified:
“Q. That didn’t make you drunk? A. It made me drunk, sick or crazy,’ I don’t know what it was.
“Q. The first one you drank at five-thirty? A. Yes.
“Q. And you went from that until seven? A. When I went home to eat supper I had a pretty good charge under my belt, but I couldn’t eat — I was simply sick, and I didn’t eat supper.
“Q. And this bottle you drank first, you went ahead with your work until seven o’clock? A. Yes.
“Q. You were capable of going ahead with your work? A. Yes, the first bottle.
“Q. And the next time you drank out of another bottle, and you say it made you sick at your stomach? A. Yes, it made me sick and drunk first.
“Q. Did it first make you sick at your stomach? A. No, the first it didn’t.
“Q. You went ahead and continued working until closing time, 7 or 7:30? A. I drank this about 5:30.
“Q. And what time did you go home? A. I bought the other jake about 6:30.
“Q. That was the one, that was the bottle that part of it made you sick at your stomach? A. Yes, sir.”
He called the doctor about the 11th or 12th of March. The doctor asked him what he had been drinking, and he said he had drunk two bottles of Jamaica ginger. The doctor said:
“It wasn’t good Jake; you got hold of some poison Jake.”
All the purchases of Jamaica ginger from defendant the witness bought for the purpose of using it as intoxicating liquor.
Plaintiff called two other witnesses, who testified they had bought Jamaica ginger from defendant and became paralyzed; that the effect of drinking it was just like a drink of whisky. They had drunk other intoxicants, had been intoxicated, but never had paralysis by reason of having been intoxicated.
In sustaining the demurrer to the evidence the trial court apparently took the view that the paralysis was something distinct from intoxication and not the result or a consequence of intoxication. Had the trial court, or a jury, been weighing the evidence, perhaps that conclusion could have been reached. But in ruling upon a demurrer to evidence the court had no authority to weigh the evidence, but was bound to consider evidence offered on plaintiff’s behalf as true and to give her the benefit of the most favorable inferences reasonably to be drawn therefrom. (See Windus v. Bodecker, 132 Kan. 857, 858, 297 Pac. 702, and cases there cited.) So construing the evidence — although there are discrepancies in it and some contradiction on material points — we think it should have gone to the jury.
The statute (R. S. 21-2150) under which the action is brought, so far as it is material on this appeal, is as follows:
. “Every wife . . . who shall be injured in . . . means of support . . . in consequence of intoxication, ... of any person (her husband in this case) . . . shall have a right of action in . . . her own name, against any person who shall, by selling . . . intoxicating liquors, have caused the intoxication. . . .”
This statute first appeared in this state as a part of the dram-shop act of 1859 (Gen. Laws 1862, ch. 84, § 10; Gen. Stat. 1868, ch. 35, § 10). It was carried into our intoxicating-liquor laws of 1881 (Laws 1881, ch. 128, § 15), and, as revised to include words inadvertently omitted (Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753), is now R. S. 21-2150. It is a valid statute (Werner v. Edmiston, 24 Kan. 147); each person mentioned in the statute sustaining such injury may maintain an action (Durein v. Pontious, 34 Kan. 353, 8 Pac. 428); it is purely statutory, since no similar cause or causes of action existed at common law, and recovery may be had for both proximate and remote injuries (Zibold v. Reneer, 73 Kan. 312, 85 Pac. 290); and the right of action exists only against persons causing intoxication (Harris v. Hardesty, 111 Kan. 291, 207 Pac. 188). The statute should be liberally construed to be effective to carry out the purposes for which it was enacted (Zibold v. Reneer, supra, pp. 317, 318), but the court should not amend it by giving it an interpretation different from that which it has had since it was originally enacted (Harris v. Hardesty, supra, p. 296).
In order for plaintiff to recover in this case it is necessary for her to establish: (1) That defendant sold intoxicating liquors to her husband; (2) that he became intoxicated by using such liquors; and (3) that his condition, which injured her means of support, was a consequence of such intoxication. The first of these was well established; indeed, there is so little said about it here that we have not set out the evidence on that point. It is well settled that the sale of Jamaica ginger for beverage purposes may be enjoined or prosecuted under our intoxicating-liquor laws. (State v. Miller, 92 Kan. 994, 142 Pac. 979.)
The second, that plaintiff’s husband became intoxicated on the Jamaica ginger sold him by defendant, is not so well established, but under the rule of considering the evidence most favorably to plaintiff, on a demurrer to evidence, that was a question for the jury.
In 33 C. J. 637 it is said:
“To sustain an action . . . there must have been a ‘sale’ ... of intoxicating liquor . . . which caused ... a state of intoxication . . .”
Courts prudently have declined to state a hard-and-fast definition of “intoxication.” (See 33 C. J. 802.) Yet we have statutes and decisions which differentiate one who is “under the influence of intoxicating liquors” from one “who is intoxicated” (R. S. 21-2160; State v. Hayden, 126 Kan. 799, 271 Pac. 291; Thornton v. Franse, 135 Kan. 782, 787, 12 P. 2d 728), as do statutes and decisions of other states (see annotation 68 A. L. R. 1356 et seq.).
The wording of the statute (R. S. 21-2150) and our own decisions and other authorities make it clear that intoxication must be proved.
Third, plaintiff must establish by proof that the injury to her means of support was in consequence of the intoxication of her husband. In Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 207, it. was said:
“ ‘Cause’ and ‘consequence’ are correlative terms. One implies the other, "When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result.”
It is not essential to plaintiff’s recovery that her husband’s intoxication (if he was intoxicated) was the “proximate cause” of the injury to her means of support, as that term is used in negligence cases, for in Zibold v. Reneer, supra, it was held that the statute under which this action was brought “authorizes a recovery for both proximate and remote injuries.” So we need not consider whether the paralysis of plaintiff’s husband which resulted in the injury of her means of support is a proximate or remote consequence of his intoxication. Even if it be a remote consequence of such intoxication it is sufficient to enable her to recover. But it must be a consequence, proximate or remote, of his intoxication to enable her to recover under the statute. Whether plaintiff’s husband was intoxicated, and whether the injury to her means of support was in consequence of such intoxication, are properly questions for the jury. (Taylor v. Davarn, 191 Mich. 243, 157 N. W. 572.)
Appellant argues that the evidence tends to show that on the day in question Coy purchased one bottle of Jamaica ginger from defendant about 4 o’clock in the afternoon, and drank it about 5:30, and became intoxicated thereby; that because of that intoxication and its “wearing off” he purchased the second bottle about 6:30, drank part of it, with the result that he first became intoxicated and then paralyzed; that the purchase of the second bottle was “in consequence of the intoxication” produced by his drinking the contents of the first bottle, and that all the ill effects, whether of intoxication or paralysis, resulting from drinking the contents of the second bottle were in consequence of the intoxication produced by the first, and form a proper basis for plaintiff’s recovery in this action. The court is impressed with the soundness of this argument. Certainly, if J. P. Coy was intoxicated by drinking from the first bottle, whatever he did because or in consequence of such intoxication and which resulted in injury to plaintiff’s means of support would form a proper basis for her action. While the evidence supporting that view is not strong, considered most favorably to plaintiff, as it must be in passing on a demurrer to the evidence, we regard it as sufficient to go to the jury. Informative cases dealing with recovery “in consequence of intoxication,” under statutes similar to our own, are: Mahood v. Caldwell, 33 Ohio App. 292, 169 N. E. 317; Bistline v. Ney Bros., 134 Ia. 172, 111 N. W. 422; Fest v. Olson, 138 Minn. 31, 163 N. W. 798; Healey v. Cady (Vt.), 161 Atl. 151.
The result is, the judgment of the court must be reversed with directions to grant a new trial. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action for damages for slander. The jury returned a verdict for defendant. Plaintiff has appealed.
From the record it appears that defendant and his wife had lived in Gove county, where they had property, and were the parents of several grown children, but in 1926 were living in Oregon City. Plaintiff is a funeral director and had been engaged in that business at Quinter in Gove county since 1923. In 1926 he married a daughter of defendant, and he and his wife visited with defendant and his wife at Oregon City, remaining there about two weeks. Plaintiff and his wife again visited defendant and his wife at Twin Falls, Idaho, in 1927, remaining about two weeks. In 1928 plaintiff’s wife visited her parents at Fort Collins, Colo. In July, 1929, defendant was in Gove county looking after his farm. Plaintiff and his wife went to visit him, and while there defendant charged plaintiff with being unduly familiar with his wife on the visit in Idaho. On March 30, 1930, defendant and his wife were then living in Gove county. They had trouble that day. Several of their children were there, but plaintiff was not present. While the extent of that trouble is not shown, one of the sons went for the sheriff and county attorney and brought them to the house. When they reached the house the county attorney asked the defendant if they were having some trouble. He replied that they were, and charged his wife with immorality, and in doing so used coarse and vulgar language. When the county attorney told him he must be mistaken, the situation could not be true, he was vehement in his assertions that he was correct and named plaintiff as the person with whom his wife had been immoral. The remarks of the defendant on that occasion are the basis of this action for damages for slander.
Defendant's wife died in July, 1930. Plaintiff was the undertaker in charge of the funeral. When he went to present his bill to the defendant he took the sheriff with him. Defendant complained that the bill was excessive, was fussy about it, kicked plaintiff and plaintiff struck him. They cursed each other and fought. When the summons was served on defendant in this action in January, 1931, he appears to have become much excited, did something unusual about his stock, just what was not shown, went to the house and inflicted a gun-shot wound upon himself, apparently in an attempt at suicide.
There was much evidence that defendant, although sane on business matters, had insane delusions respecting the morality of his wife, that he was crazy on the subject, and that he had no cause to entertain such views. Prior to March 30, 1930, some of his children had discussed the necessity of having him examined or treated because of these insane delusions. He was examined by one physician who found no evidence of brain disease but did find him not normal on some subjects. There was talk of talcing him to Topeka for better examination. The evidence tended to show that his relatives and the officers who heard his remarks on March 30, 1930, regarded them as being without foundation in fact and as the utterances of one under a delusion on that subject. They thought none the less of plaintiff by reason of these remarks. Plaintiff later heard of these remarks, and while they hurt his feelings, he did not show any actual damage sustained by reason of them.
Appellant’s first contention is that the court should have granted a new trial for the reason that the evidence supporting the allegation that the remarks complained of were made was uncontradicted. Defendant did not take the witness stand. It is argued that the jury had no right or authority to disregard the uncontradicted evidence, and that it was the duty of the court to grant a new trial. In support of this contention appellant cites Collins v. Morris, 101 Kan. 135, 165 Pac. 862; Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429; Shellabarger v, Binns, 18 Kan. 345, and allied cases. We think the principle controlling the cases cited is not applicable. The mental condition of the defendant, and the fact that no actual damages were shown, were matters to be taken into account. In 32 C. J. 750 the rule with reference to the liability of an insane person for slander is thus stated:
“Whether an insane person is or is not liable in damages for libel or slander depends on whether intent or malice is an element of the particular libel or slander. If it is, a person is not liable in damages therefor if, at the time of speaking or publishing the defamatory words, he was totally deranged, or was the victim of insane delusions on the subject to which the words related; and where defendant was not totally deranged at the time of uttering the words complained of, lie may nevertheless prove the unsound condition in the mitigation of damages. If malice is not necessary in order to recover actual damages done by an unprivileged libel or slander, an insane person may be liable to the extent of the' actual damages caused by his libel or slander, but smart money cannot be given against him.”
To the same effect is 14 R. C. L. 598; 16 A. & E. Enc. of L., 2d ed., 622; Townshend on Slander and Libel, 2d ed., §248; and 1 Cooley on Torts, 4th ed., 192.
Appellant contends that the evidence with respect to defendant’s mental condition, or delusions on this one subject, was improper for the reason that it was not specifically pleaded, the answer in this case being a general denial. The authorities are to the effect that such evidence may be admitted under a general denial. (See 32 C. J. 785; 37 C. J. 39; 14 R. C. Jj: 616.) But passing that, the issue was tried out. Plaintiff introduced evidence on that point in rebuttal, and it would be futile to send this case back, for retrial because of the form of the pleadings on this question.
Plaintiff requested an instruction, to the effect that the evidence tending to show defendant attempted to commit suicide in January, '1931,'should not be considered by the jury as having any bearing upon the mental condition of defendant in March, 1930. When the question of insanity of a person of a particular date is an issue, his conduct both before and after that date may be used as having a bearing upon the question, and while this incident was remote, its weight was for the jury. More than that, appellant specifically says he has no objection to the instructions given by the court. Ordinarily when the instructions given cover the issues in controversy and are free from objections, the fact that the court refused a requested instruction becomes immaterial.
The jury appear to have taken the view that the language complained of was the utterance of one under a delusion on that subject; those who heard it so understood it, and thought none the less 'of plaintiff, and that plaintiff had sustained no actual damage. In view of all the facts shown, the jury thought plaintiff should not be enriched from defendant’s estate, and returned a verdict'accordingly. The trial court approved the verdict. . We see no reason to disturb it.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover an attorney’s fee for professional services. Defendant prevailed, and plaintiff appeals.
The facts giving rise to this action may be summarized thus:
The late Thomas A. Noftzger, Esquire, was the head of a firm of lawyers in Wichita for a number of years and so continued until his death in 1931. The plaintiff George W. Cox became his partner in 1914. In 1919 the defendant Walter J. Trousdale became a client of the law firm of Noftzger & Cox. Trousdale had various business activities in which he required the services of a lawyer. This relationship of attorney and client between Noftzger & Cox and defendant Trousdale continued until September 19, 1927, when he formally discharged them.
At the time of their discharge there was pending in the supreme court of this state an appeal from a judgment in favor of Trousdale against one Amerman for the recovery of some $12,000 worth of industrial bonds. The action had been begun in the district court of Sedgwick county on June 30,1925, by the law firm of Noftzger & Cox as attorneys for Trousdale, and a verdict and judgment for $12,410 had been recovered in his behalf on January 31, 1927.
In 1922 one R. L. NeSmith, who had just then been admitted to the bar of this state, entered the employment of Noftzger & Cox at a salary of $125 per month. His salary was increased from time to time until in April, 1925, the firm was paying him $175 per month. About that time NeSmith began to form plans for engaging in the practice of law on his own account, when Mr. Noftzger offered to take him into the firm as a partner on a fixed drawing account of $200 per month and a 5 per cent interest in the fees collected by the firm and an opportunity to build up his own clientele. NeSmith’s testimony on this point reads:
[By Counsel for Appellee] : “You may state, Mr. NeSmith, whether or not you had a conversation with Mr. Noftzger relative to changing your relationship with that firm.
“. . . [Objections overruled.]
“A. He [Noftzger] said, ‘Bob, I have been thinking about that situation and I have decided to take you and Mr. Masemore both into the firm. I will put you both on a drawing account of $200 a month and 5 per cent of the fees actually collected, that is to the date of the dissolution.’ I said, ‘Mr. Noftzger, that is only part of my objection to the present arrangement.’ He said, ‘Bob, what other objection do you have?’ I said, ‘Well, I want to have my own clientele. I want to build up my own business. If anything would happen to you I wouldn’t stay in this firm five minutes. I don’t want to be kicked out in the street without any business; I want to build up my own clientele.’ He said, ‘That’s all right, you can go ahead and build up your own business and have your own business just the same as if you were in business for yourself.’ I said, ‘Under those conditions I will stay.’
. . . . . . . . . .
“Q. Now, what was said at that time, Mr. NeSmith, as to what you were to do with your clients at the time of the dissolution and with reference to the payment of the fees which they might have owing?
[Objections.]
“A. He said, T want it understood that this 5 per cent will be on the fees actually collected as of the date of the dissolution.’ . . . He said, T don’t want to have any accounting afterwards; business stops off right there.’ I said, ‘Well, it is perfectly all right with me; what I want to do is to have my own clients so I don’t have to start out anew if anything should happen to you.’ He said that was all right.
. . . . . . . . . .
“I believe the agreement with Mr. Noftzger was in April, 1925.”
About the time of this agreement between Senator Noftzger and NeSmith, Noftzger’s partner Cox, plaintiff herein, had a conversation with NeSmith. Cox testified:
“I told NeSmith that the more clients he brought into the firm the better all of us would be suited and the more money we would all make and at the time he left if those clients wanted to go with him that they could and he would then have his own clientele but that all of the work which had been done previous to the time he withdrew would be paid for to the firm of Noftzger & Cox.”
On September 1, 1927, NeSmith retired from the firm of Noftzger & Cox. At that time defendant had not paid anything to the firm of Noftzger & Cox for their services in instituting and successfully prosecuting to judgment in the district court the case of Trousdale v. Amerman, referred to above. During NeSmith’s affiliation with the firm of Noftzger & Cox as a partner he had given particular attention to the case of Trousdale v. Amerman. He testified, however, that Senator Noftzger had assisted in dictating the brief used in the trial.
Following the retirement of NeSmith the following correspondence passed between the firm of Noftzger & Cox and Trousdale, to which we must give space:
Letter to Trousdale
“Wichita, Kan., September 7, 1927.
“Mr. Walter J. Trousdale, Newton, Kan.:
“Dear Mr. Trousdale — Mr. R. L. NeSmith has been a member of this firm and has severed his connection with it on the first day of September, 1927, and is now engaged in the practice of law by himself at 516 Fourth National Bank Building.
“You have been a client of this firm during Mr. NeSmith’s connection with it, but on account of the fact that he did business for you, we deem it necessary to give you this notice, and say to you that the old firm would be very glad to retain your business, but if you desire Mr. NeSmith to attend to your law business, please kindly advise us, as well as Mr. NeSmith, and we will make the proper arrangements for severing the connection, and transfer the business as of September 1, 1927.
Noftzqer & Cox — By Noftzger.”
Trousdale’s Answer
“Newton, Kan., September 19, 1927.
“Messrs. Noftzger & Cox, Wichita, Kan.:
“Dear Mr. Noftzger and Mr. Cox — Referring to your letter of September 7, I was sorry to learn of the separation of Mr. NeSmith from your firm. I have the greatest personal regard for all the members of the firm, Messrs. Noftzger, Cox and Masemore, and am sorry the matters I have pending in court had not been completed before this occurred. The two cases that are. unfinished are the so-called Amerman case and the Dixie Oil Company case, and since I at all times conferred with Mr. NeSmith personally concerning them, and he is particularly conversant with them, I feel that I should allow Mr. Ne- Smith to continue to handle these cases until they are completed. Our relations have been so pleasant in the past that I regret this decision is necessary on my part. I trust you understand my position in the two cases above referred to.
“Thanking you for all past favors, I beg to remain
“Yours very truly, Walter J. Trousdale.”
Noftzger’s Reply
“September 21, 1927.
“Mr. Walter J. Trousdale, Newton, Kan.:
“Dear Sir — We have your letter of September 19, 1927.
“You do not need to apologize to us at all for desiring Mr. NeSmith to attend to your business. It is not only the privilege, but the duty of every man to select his own lawyer or doctor, and there is absolutely no feeling as far as this office is concerned. What we want you to know is that this office is entitled to the fee for the work done until September 1, 1927, and we do not expect to have any trouble about this matter, but at your convenience we would like to have you call and talk the matter over.
“The writer particularly wants to see you.
“Very truly yours, Noftzger & Cox.”
Thereafter NeSmith briefed the Amerman case and argued it in the supreme court, and on December 10, 1927, the judgment of the district court was affirmed (Trousdale v. Amerman, 124 Kan. 614, 261 Pac. 826). Shortly thereafter NeSmith began to realize on that judgment and within a year he had collected the full amount including interest, $13,727.40. From time to time as NeSmith made collections he deducted therefrom and retained for his own services the sum of $3,500. Trousdale declined to pay Noftzger & Cox, claiming he owed them nothing. Hence this lawsuit.
On November 22, 1929, the action was begun by Noftzger & Cox against Trousdale on an account stated for four items of legal services. The petition, in part, read:
“Comes now the above named plaintiffs and for their cause of action against the defendant herein allege and state:
“They are and have been at all of the times herein mentioned copartners, doing a law business as Noftzger & Cox at 505 Beacon Building, Wichita, Kan.
“The defendant is and has been at all the times herein mentioned a resident of Newton, Kan.
“At the special instance and request of the defendant herein, plaintiffs performed legal services for the defendant for which they have not been paid, and expended money for and on behalf of the defendant for which they have not been reimbursed, as is more fully set forth in the itemized statement attached hereto, made a part hereof, and marked exhibit ‘A.’ The said sum of seven thousand seven hundred fifty-seven and 67/100 dollars ($7,757.67) is due plaintiffs herein, none of which has been paid. Said account is just, true and correct, and wholly unpaid and said account has been due since September 1, 1927.
“Wherefore, plaintiffs pray, etc.”
“Exhibit A
“September 1, 1927.
“Walter J. Trousdale,
“In account with Noftzger & Cox.
“1927.........
. . . . . . . . . .
“Sept. 1 To fee case of Trousdale v. Amerman $6,000.00
$7,757.67”
That petition was later expanded into four causes of action, the second being for an agreed fee on the basis of 50 per cent of the judgment in the Amerman case, and the fourth for services in that case based on quantum meruit. In this appeal we shall have no concern with anything except for services by Noftzger & Cox in the Amer-man case.
On February 18, 1931, plaintiff dismissed the action without prejudice.
Shortly thereafter, on March 2, 1931, Senator Noftzgef died. On February 10, 1932, plaintiff as surviving partner recommenced the action, pleading substantially the same facts as to the firm’s services in behalf of Trousdale in the Amerman case. The petition also alleged:
“On said date of September 1, 1927, the said NeSmith left the employment of said firm and thereafter at the request of the defendant said NeSmith had the brief printed and argued said action in the supreme court; that said judgment was affirmed in the supreme court in the sum of *13,727.40, which was paid before the 5th day of November, 1928.”
Plaintiff alleged that the services as alleged were worth $6,863.70 and judgment was prayed for accordingly.
Defendant’s answer contained a general denial, a specific denial of indebtedness to plaintiff, and—
“2. For further answer, said defendant specifically denies that he, at any time, ever employed the firm of Noftzger & Cox to bring an action or lawsuit against M. it. Amerman and Charles Phillips and denies that said R. L. Ne-Smith was employed by said firm at the time of bringing -said action or subsequent thereto, but alleges that the defendant employed the said R. L. Ne-Smith and no other person to prepare, file and prosecute said action described in plaintiff’s fourth cause of action to final conclusion; . . .”
Defendant also alleged that NeSmith had prepared, filed and prosecuted the Amerman case to final judgment and that defendant had paid his $3,500 therefor.
Some other pleadings and amendments to pleadings so far as material will be noted as we proceed.
The testimony touching the value of the services of plaintiff’s law firm in instituting and prosecuting the Amerman case to judgment in favor of Trousdale in the district court, which was accomplished prior to their discharge, was the familiar kind of opinion evidence of experienced lawyers based on hypothetical questions. One attorney of twenty-eight years’ practice, whose qualifications were admitted by counsel for defendant, testified that the value of the services of Noftzger & Cox rendered in the case up to the time they were dismissed was $3,000. There was no testimony to the contrary. Cox, plaintiff, after narrating the difficulties involved in the case which was complicated by a problem of election of remedies growing out of a prior unsuccessful effort to recover the bonds by replevin, testified:
“The case was handled principally by Mr. NeSmith and Mr. Noftzger until Mr. NeSmith left the firm of Noftzger & Cox. The reasonable value of our services up to September 1, 1927, was half of $12,410, with interest from the 31st day of January, 1927 [date of judgment], at 6 per cent, minus $250, or $300 for what NeSmith did in arguing the case in supreme court after September 1, 1927.”
Defendant’s testimony on the subject of the employment of counsel in the Amerman case reads:
“In the Amerman case I employed Robert L. NeSmith. . . : I knew I was dealing with a member of the firm; ... I paid him, NeSmith, $3,500. ... I owed NeSmith because I employed him as a member of the firm. If I pay a member of the firm, I pay the firm, don’t I? ... I dismissed Noftzger & Cox and had NeSmith take the case on through the supreme court. I would not say that I did not receive the letter in which Mr. Noftzger says to me in part: ‘What we want you to know is that this office is entitled to a fee for the work done until September 1, 1927, and we do not expect to have any trouble about this matter.
. . . . . . . . . .
“Q. . . . You didn’t pay Noftzger & Cox anything did you? A. No, sir; I never employed them.
“Q. What is that, once more ? A. I never employed them in this matter.
“Q. You employed a member of the firm? A. That is right.
“Q. You knew he was a member? A. I think so.
. . . . . . . . . .
“Q. You knew he [NeSmith] wasn’t a member of the firm when you paid him? A. He was a member of the firm when I employed him.
“Q. You knew he wasn’t a member of the firm when you paid him? A. He had withdrawn from the firm September 1, 1927.
“Q. You knew that, didn’t you? A. I have a letter from Mr. Noftzger saying that he had withdrawn; yes, sir.
. . . . . . . . . .
“Q. Walter, did you know what Bob’s arrangement with the firm was? . . . A. I can only answer that by telling what Mr. NeSmith told me.
"Q. All right; tell what he said to you about his connection with the firm. A. That he [NeSmith] was a member of the firm; that he received a drawing account of $200 a month and 5 per cent of the proceeds as of the date of dissolution, and was to build his own clientele.
. . . . . . . . . .
“Q. You dismissed Noftzger & Cox and had NeSmith take the case on through the supreme court, didn’t you? A. That is correct.”
The verdict and judgment were for defendant, and plaintiff appeals, assigning various errors but mainly against the net result.
At the outset, however, defendant raises two -objections to plaintiff’s right to have the judgment reviewed by this court. These involve the statute of limitations and an alleged shifting of plaintiff’s position from the one taken in the trial court.
Touching the first of these, the action was filed originally on November 25, 1929, and dismissed without prejudice on February 18, 1931. It was recommenced on February 10, 1932. This was allowable under the code. (R. 'S. 60-311.) So far as the fee claimed for services in the Amerman case was concerned, the second cause of action for an agreed 50 per cent fee and the alternative fourth cause of action on quantum, meruit were substantially the same as they had appeared in the oft-amended petition filed in the first case. It is no longer of any consequence what was pleaded in the second cause of action based on the alleged agreement for a 50 per cent fee, since the jhry did not believe plaintiff’s evidence concerning it. Death had closed the lips of the man who could have given the most convincing evidence on that subject. But the fourth cause of action as stated in the first case and in the present case was sufficiently pleaded in the original petition filed on November 25,192-9.
Plaintiff’s petitions in the first case and in the second case were subjected many times to motions to state more definitely certain inconsequential matters. But the object of both suits, from first to last, was to recover a fee for services in the Amerman case. And since the first action was begun in time and it failed otherwise than on the merits and the second action was begun within -one year there after, the pertinency of the statute of limitations does not appear. On motion of defendant plaintiff was required to amend his petition to set out the dates when NeSmith made collections on the judgment — on some theory, perhaps, that the statute of limitations would begin to run from some date pertaining thereto. Be that as it may, when these dates were supplied, defendant’s demurrer to the petition was overruled, and we do not discover that anything savoring of a cross appeal on this point is presented. If it is, this court holds that the overruling of the demurrer which thus raised the statute of limitations was correct.
Next, as to the alleged shifting of plaintiff’s position: We have stated the substance of plaintiff’s fourth cause of action in his last amended petition, and we have set out in haec verba the cause of action first pleaded in the original petition filed on November 25, 1929. In our view the fourth cause of action in the last amended petition was substantially the same. Plaintiff finally prayed for more than $6,000; and eventually and at the repeated instance of defendant he was compelled to amplify his pleadings; but his pleadings ended where they began — to recover a fee for legal services in the Amerman case up to September, 1927; and his claim for such a fee for those services persisted until issues were finally joined and the cause tried to a conclusion.
Passing now to plaintiff’s grievances against the judgment, it may shorten our task to turn to defendant’s brief to discover, if we may, why the ordinary rule that the laborer is worthy of his hire should not have been applied in this case?
It is first suggested that plaintiff’s second amended petition was a departure from the petition dismissed — as to both the second and fourth causes of action. But as we have just seen, the first petition in the first case contained the very gist of the subject matter which eventually was elaborated into the fourth cause of action. The same evidence would have supported the cause of action first stated in the original case that was adduced in support of the fourth cause of action in the present case. And the redress demanded was the same — a fee for plaintiff’s services in the Amerman case. We hold, therefore, that there was no departure.
Defendant argues, however, that the statute of limitations did not begin to run at the time of the dissolution of the firm of Noftzger & Cox on September 1, 1927, but did begin to run at the’ time of payment of the Amerman judgment. If that point were good, there would have been left a few months of the three-years period after the cause of action accrued, in which to recommence the action, and consequently plaintiff would not be entitled to recommence it within one year after its dismissal. But the point is untenable. In Martin v. Camp, 219 N. Y. 170, L. R. A. 1917F 402, it was held:
"When . . . the [attorney’s] services are brought to an end, the cause of action on behalf of the attorney is complete and the statute commences to run. This rule is not affected by the fact that the contract under which the attorney is employed makes his compensation contingent upon the result of an award being made to the client, since the cause of action accrues when he is discharged by the client, and not when the contingency happens upon which his right to compensation was, by the contract, made to' depend.” (Syl. ¶ 3.)
Here the single cause of action on the items of account stated in the action filed November 25, 1929, shows plainly that plaintiff was proceeding on the theory that the cause of action for legal services in the Amerman case had accrued in September, 1927, and if there was any doubt about that point it was supplied by defendant’s letter of September 19, 1927. It was further demonstrated by defendant’s own evidence where he repeatedly testified:
"I dismissed Noftzger & Cox and had NeSmith take the case on through the supreme court.”
Certainly if the defendant’s own testimony is to be believed and if the fair import of his letter to Noftzger of September 19, 1927, be considered, that evidence showed conclusively that the relationship of client and attorney which had theretofore existed between himself and plaintiff’s law firm for a number of years was terminated in September, 1927, after the Amerman case had been instituted and carried through to judgment in the district court. Then and not later, plaintiff’s cause of action accrued. There was no part of the original three-year period left when the first action failed otherwise than on the merits, and the new action was begun under authority of the code. (R. S. 60-311.)
It is contended that plaintiff has shifted his position because the action was instituted and prosecuted below on the theory that NeSmith was an employee of the firm of Noftzger & Cox, when it was later pleaded and shown that NeSmith was in fact a member of the firm and not an employee during the entire period when the legal services of the firm of Noftzger & Cox were rendered in the Amer-man case. We regard that point of no consequence. So long as Senator Noftzger was alive the firm name was that of Noftzger & Cox. The personnel and staff of that firm was of no significance in this lawsuit. If defendant, had pleaded payment to a member of the firm, or even to an employee authorized to receive payment, a nice question as to the membership of the firm and its employees might become important. What he paid NeSmith long after NeSmith ceased to be a member of the firm did not discharge defendant’s debt for the services of plaintiff’s firm.
Nor is it of the slightest importance, if true, that all or nearly all of the services rendered by plaintiff’s law firm in the Amerman case were in fact rendered by NeSmith when he was a member of that firm. NeSmith’s compensation for all his professional services was fixed by agreement of himself and Noftzger in April, 1925. And defendant testified he knew what were the terms of that agreement— that when he should retire from the firm he was to have no claim on any uncollected fees. This was a perfectly fair and reasonable arrangement. Whose client was Trousdale? Indisputably he had been a client of Noftzger & Cox for several years and gave them a good deal of legal business in that interval. And it is perfectly plain that he continued to be the firm’s client until he dismissed them in September, 1927.
We do not overlook defendant’s testimony where he repeatedly said he never employed the firm of Noftzger & Cox in the Amerman case. His claim was that he employed NeSmith, but he knew NeSmith was a member of the firm; and it is elementary law that in the absence of a special arrangement a client who employs a member of a law firm employs the firm (6 C. J. 629; Ann. Cas. 1917B, 16 et seq.), and the compensation for the services performed pursuant to such employment is due to the firm. Moreover, defendant’s testimony that he never employed the firm was completely discredited by his admission that he dismissed the firm in September, 1927. If he had not employed the firm there was no occasion to dismiss them. Defendant’s testimony is also significant in another respect. He testified that NeSmith had told him just what his connection with the Noftzger & Cox firm was:
“Q. . . . Tell what he said to you about his connection with the firm. A. That he [NeSmith] was a member of the firm, that he received a drawing account of §200 a month and 5 per cent of the proceeds as of the date of dissolution, and was to build his own clientele.”
It is elementary that the construction of a contract is a question for the court and not the jury. (Dohner v. Grocery Co., 116 Kan. 237, 226 Pac. 767.) And it must be held that under defendant's own understanding of NeSmith’s contractual relation with the firm as a partner, he could not become the individual client of NeSmith until after NeSmith had retired from the firm and until he (defendant) had severed the then existing relationship of client and attorney between himself and Noftzger & Cox.
Under the terms of the contract whereby NeSmith was taken into the partnership NeSmith was to have the privilege of building up a clientele of his own. That did not mean that such clientele could be built up out of the firm’s clients, otherwise Noftzger & Cox would be paying NeSmith $200 per month and a percentage of their fees to take their clients away from them. And the harder NeSmith worked to take their clients away from the firm the less wherewithal the firm would have with which to pay him. Touching the negotiations between Noftzger and NeSmith at the time the arrangement was made to take him into the firm, Cox, the surviving partner, plaintiff herein, testified:
“I told NeSmith that the more clients he brought into the firm the better all of us would be suited and the more money we would all make, and at the time he left if those clients wanted to go with him that they could and he would then have his own clientele, but that all of the work which had been done previous to the time he withdrew would be paid for to the firm of Noftzger & Cox.”
This testimony, of course, may have been disbelieved by the jury, but it is consistent with the testimony of NeSmith and indeed with common sense.
In view of the foregoing, it seems that the judgment in favor of defendant cannot stand. And what is there left to try anew? Plaintiff’s law firm rendered services for defendant in the Amerman case for which it was entitled to payment. It has never been paid. The services are indisputable. Payment to NeSmith after he ceased to be either an employee or a partner was not payment to the firm, especially when defendant was fully apprised of the extent of NeSmith’s financial interest in the firm’s business and when he knew that NeSmith was neither a partner nor an employee of the firm at the time he did pay him. In the original account stated, plaintiff’s services were itemized at $6,000. The evidence as to the value of the professional services of Noftzger & Cox in the Amerman case ranged from $3,000 up to half the judgment recovered. A lawyer witness of many years’ experience, whose qualifications to testify as to the value of a lawyer’s services were admitted, testified that the services rendered by the firm of Noftzger & Cox up to the time the firm was discharged was $3,000. There was no evidence to the contrary, nor was there anything in the evidence or the circumstances to discredit the testimony of the witness who suggested this minimum sum.
It is a rule of the code that when a cause is reversed in this court and there is nothing left to try, this court is authorized to render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the trial court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court. (R. S. 60-3317.) So far as plaintiff’s claim for an attorney’s fee in the Amerman case is concerned, after wading through two bulky packages of pleadings and after perusing carefully the record of the protracted litigation through which it has eventually reached this court, and being fully advised that there never has been a bona fide defense to this action, the court deems it proper to terminate it. In Devlin v. City of Pleasanton, 130 Kan. 766, 288 Pac. 595, it was said:
“Where the issues are clearly defined by the pleadings and plaintiff’s petition states a cause of action and the evidence in support thereof is sufficient, and no meritorious defense thereto is suggested by the answer nor by defendant’s evidence, the supreme court is authorized by the civil code to order the proper judgment to be directed.” (Syl. ¶ 4.)
See, also, Platts v. Thompson, 126 Kan. 544, 551, 552, 268 Pac. 833; Wegner v. Federal Reserve Life Ins. Co., 131 Kan. 100, 101, 289 Pac. 431.
The judgment of the district court will be reversed and the cause remanded with instructions to sustain plaintiff’s motion for judgment notwithstanding the verdict, and to enter judgment in plaintiff’s behalf for the minimum value of plaintiff’s services as established by the evidence, to wit, the sum of $3,000, and for costs of suit.
It is so ordered.
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The opinion of the court was delivered by
Busch, J.:
The action was one for damages sustained by Charles E. Leinbach when the automobile in which he was riding was struck by a bus operated by defendant Pickwick-Greyhound Lines, an interstate transportation corporation. The driver of the bus, Orville Thompson, was made a party defendant. The jury returned special findings of fact and a general verdict in favor of plaintiff. Judgment was entered accordingly, and defendants appeal.
This is a second appeal. At the first trial the verdict and judgment were for plaintiff. On appeal the judgment was reversed, and the cause was remanded for new trial. (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33.) In order that this opinion may be complete in itself, it is necessary to make a statement of the facts of the accident. For brevity the defendant Orville Thompson will be referred to by name or as the bus driver, and Pickwick-Greyhound Lines will be referred to as the defendant.
Seventh street and Lyons avenue in North Lawrence intersect. From the intersection Seventh street extends north and south. Lyons avenue extends east and west. The center of Seventh street is paved with an eighteen-foot concrete slab and is a part of highway U. S. 40. Adjoining the pavement on the east was a dirt shoulder five to seven feet wide. East of the shoulder was a shallow ditch with gently sloping sides. East of the drain and level with the shoulder and the pavement was a field, vacant and uninclosed. The pavement, shoulder and drain were dry. Lyons avenue is an unpaved street forty-five feet wide. The traveled way is eighteen feet wide, is south of the center of the street, and extends to within six feet of the south line of the street. West of U. S. 40 and north of Lyons avenue was Claude Minor’s house. The house stood on an elevation, and the house, a fence and some trees obstructed the” view of a driver of an automobile approaching the intersection from the north or from the west until near the intersection. West of U. S. 40 and south of Lyons avenue were obstructions to the view of an automobile driver approaching the intersection from the west until near the intersection. South of Lyons avenue is Lincoln street. The distance from the north line of Lincoln street to the center of Lyons avenue is 624 feet, and for that distance the pavement is practically level.
W. E. Stickel, driving a Dodge sedan, approached the intersection from the north on the west side of the pavement. With him in the front seat was Charles Leinbach, the plaintiff. In the rear seat were Mrs. Stickel and Mrs. Leinbach. As the Dodge car approached the intersection from the north, a Ford roadster, driven by Bernard Riewe, approached the intersection from the west on the traveled portion of Lyons avenue. In the seat with the driver of the Ford were Carl Wheeler and Mrs. Laverne McManus. The Dodge and the Ford collided. Just before the collision the Dodge was turned toward the center of the pavement. The Ford kept its course eastward and struck the Dodge when the Dodge was about the center of U. S. 40 and in the south portion of the intersection. The right rear fender of the Dodge and the right running board, just in front of the right rear wheel, were smashed. The left front fender and headlight of the Ford were smashed, and the left front wheel of the Ford was broken.
There were various estimates of the speed of the two cars as they approached the intersection and at the time of the collision. For the Dodge the estimates ranged from twenty to forty miles per hour, and for the Ford from fifteen to forty miles per hour. The two cars “whirled around.” They “spun around.” It took them “just an instant” to get over to the east side of the pavement.
The Dodge turned until the front end was toward the north. The Ford followed the Dodge around until it was east of the Dodge with its front end toward the southeast. The Dodge was on the pavement and the Ford was on the shoulder close beside the Dodge. The Ford finally turned over on its side. Riewe, testifying for defendant, said the front part of the Ford was in the ditch. None of the occupants of the Ford was severely injured.
While the events described were in progress, defendant’s bus was approaching the intersection from the south on the east side of the pavement. The bus was about thirty feet long and seven feet six inches wide, and there were twelve passengers in the bus. The bus had four speeds forward. The driver said that at the corner of Lincoln street the bus was in second gear. He said that about half way between Lincoln street and Lyons avenue he shifted to third speed. As indicated above that would be about 300 feet from the center of Lyons avenue. The driver said that after he shifted gears and straightened up, he saw confusion ahead. He said he did not see the collision between the Ford and the Dodge. He said the first he saw of the Dodge the front end of it was facing toward the northwest. The rear end was practically toward the southeast and was turning toward him. It continued to turn until the back of the Dodge was directly toward him. He said he did not see any portion of the side of the Dodge. He first saw the back end of it. H¿ said that when the Dodge got with its back directly toward him, the car was in the act of turning over off its wheels. He said two wheels on one side were lifted off the pavement and the other two wheels front and back were on the pavement. He said the Dodge seemed to be turning over on two wheels and seemed to be practically leaving the pavement. He would not say whether the two wheels were off the pavement three to four inches or two to three feet.
The bus struck the rear end of the Dodge. The observation of passengers in the bus and of others was that the Dodge had not risen from the pavement but was still on its wheels when the bus struck it. A witness for defendant said the Dodge was still in the air, and Orville Thompson said the Dodge had not turned over on its side when the bus hit it.
The bus propelled the Dodge forward about six or eight feet and turned it over on its back with its wheels in the air. Witnesses testified there was not much length left of the Dodge, it was sort of in a ball; was pushed up into a sort of ball. The springs were buckled upward. The occupants of the front seat were crushed against the instrument board, and the occupants of the back seat were crushed against the front seat. Mrs. Leinbach and Mrs. Stickel were killed outright. Mr. Stickel was extricated with difficulty from under the steering wheel and died a few hours later. The body of Mrs. Leinbach was removed from the wreck, but the body of Mrs. Stickel could not be extricated. The Ford took fire. The fire was communicated to the Dodge, and Mrs. Stickel’s body was charred. Mr. Leinbach was rendered unconscious for a period of thirty-six to forty-eight hours and was intermittently unconscious for a longer period. His right ankle was dislocated, his left knee cap was pushed to one side of the leg, the head of the left femur was forced upward and forward out of its socket, and the socket rim was broken. The twelfth dorsal and fifth lumbar vertebrae were fractured. He suffered a brain lesion, which has destroyed the sense' of taste on one side of the tongue, and he suffered other injuries.
Plaintiff’s petition pleaded negligence in operation of the bus with respect to speed and failure to reduce speed; violation of city ordinances relating to speed and operation of the bus; failure to turn the bus to the right; and, in effect, that Thompson negligently failed to improve opportunity to avert the accident after plaintiff was in a perilous situation from which he could-not extricate himself. The joint answer of defendant and Thompson denied they were negligent. The answer also pleaded the accident was caused by negligence of Stickel, acting for plaintiff, and of Riewe. The answer also pleaded contributory negligence of plaintiff generally, and pleaded violation of the city ordinances by plaintiff.
The testimony regarding the manner in which the accident occurred was conflicting, and the testimony regarding matters now to be considered was conflicting. For the benefit of counsel from a neighboring state, who conducted the defense and who argued the case here, some rules of appellate practice in this state must be stated. This court is not now concerned with the credibility of witnesses. At the trial the witnesses were tested in all possible ways. Various forms of impeachment were employed, and what the jury was warranted in believing was a matter for the jury to determine, subject to approval by the trial court on motion for new trial. This court is not now concerned with conflicts in the evidence. Those were matters to be resolved by the jury, subject to approval by the trial court. This court is not now concerned with the evidence favorable to the defense or with inferences from evidence favorable to the defense. The general verdict of the jury and the special findings of fact are regarded as supported by whatever substantial evidence there may be favorable to plaintiff and by the reasonable inferences which may be derived from that evidence. These rules are fundamental in considering a case on appeal. They are ignored in the brief for the defense, and, consequently, the court cannot follow the brief in its presentation and argument of the case.
The following facts were found by the jury:
“1. At what speed was the bus going at the time the driver thereof first saw that the Dodge was in or coming into a position of imminent peril of being struck by said bus? A. Twenty-five miles.
“2. At the speed given by you in your answer to the preceding question, state within w'hat distance the bus driver could have brought said bus to a stop after he saw the Dodge sedan in or coming into a position of imminent danger of being struck by the bus. A. Thirty-six feet.
“3. At the time the driver of the bus first saw the Dodge in or coming into a position of imminent danger of being struck by the bus, where was the south end of the Dodge with relation to the south line of Lyons avenue? A. Ten to twelve feet.
“4. At the time the bus driver first saw the Dodge in or coming into a position of imminent peril of being struck by the bus, how far was the front end of the bus from the south line of Lyons avenue? A. Seventy-five feet.
“5. How far south of the south line of Lyons avenue was the rear end of the Dodge sedan when the bus and Dodge sedan collided? A. Ten to twelve feet.
“6. At the moment of collision between the Ford roadster and the Dodge sedan were a model T Ford, a Hudson car driven by Mrs. Petty, a model A Ford car driven by J. M. Evans, and a car driven by M. L. Dicker in the first block north of Lyons avenue and being driven south on the west side of highway No. 40 back of the Dodge sedan? A. Yes.
“7. Did the Dodge, before the collision with the bus, turn over on its side or top as a result of the collision with the Ford? A. No, in act of turning.
“8. Where was the Ford car that collided with the Dodge in relation to the dirt shoulder and ditch east of the slab immediately before the collision between the bus and the Dodge? A. On the shoulder east of pavement in contact with Dodge, partially in ditch.
“9. Did the driver of the bus use eveiy appliance at hand that he could use in his bus to avert the collision with the Dodge sedan at the time he first saw the Dodge sedan in or coming into a position of imminent peril of being struck by the bus? A. No.
“10. If you answer the preceding question ‘No,’ then state with particularity what the bus driver omitted to do. A. Used all brakes but did not turn off slab soon enough.
“11. What injuries, if any, did the plaintiff or his wife sustain in the collision between the Dodge and the Ford? A. None.”
It is contended by the defense that finding No. 2 — that after seeing the Dodge in peril the bus driver could have stopped the bus in thirty-six feet — was not sustained by evidence. The bus was equipped with four-wheel Westinghouse air brakes operated by foot pedal and with an emergency brake operated by a lever at the left of the driver. The air brake commenced to operate instantly as the pedal was pressed and operated to its full braking power when the pedal was fully pressed down. The brakes were designed to be adequate for the control of the bus and were in proper condition at the time of the accident. There was testimony by an experienced driver of buses of the type herein involved that this bus, loaded with seven or eight passengers and traveling on a flat concrete pavement at a rate of twenty-five miles per hour, could be stopped in twenty or twenty-five feet. Another experienced driver testified that under the same conditions a stop could be made in from seventeen to twenty feet. An expert witness for the defense said the stopping distance of this bus going at the rate of twenty-five miles per hour was thirty-one feet. Orville Thompson said thirty to thirty-five feet.
In its answer to the third question, the jury did not specify whether the south end of the Dodge was north or south of the south line of Lyons avenue when the bus driver saw the position of the Dodge. The brief for the defense contends the finding was that the south end of the Dodge was north of the south line of Lyons avenue. The brief ignores the testimony of Orville Thompson, who said all of the Dodge seemed to be south of the intersection and when he saw the Dodge he saw the Ford to the south of the south edge of Lyons avenue, close to the Dodge, and neither north nor south of the Dodge.
In the brief for the defense it is contended finding No. 4, that when Thompson first saw the Dodge the front end of the bus was seventy-five feet from the south line of Lyons avenue, is not sustained by evidence. The contention is wholly without merit. The fifth finding of fact, that when the bus struck the Dodge the south end of the Dodge was ten or twelve feet south of the south line of Lyons avenue, is not contested, and it may be said here the first five special findings of the jury established negligence, on the part of the bus driver, which caused the accident.
An auto vehicle moving at the rate of twenty-five miles per hour travels 36⅖ feet in a second of time, or, for practical purposes, 37 feet per second. A witness for defendant testified that after observing occasion for an emergency stop a driver’s reaction time for application of brakes is one-half second. The bus was seventy-five feet from the south line of Lyons avenue when need for an emergency stop was observed. The south end of the Dodge was ten or twelve feet south of the line, leaving sixty-five or sixty-three feet in which to stop. Deducting distance covered by the bus during the driver’s reaction time, 18.5 feet, the driver had 46.5 or 44.5 feet in which to stop. He could have stopped within thirty-six feet, with the front end of the bus eight or ten feet south of the Dodge.
The reaction time which has been referred to is average reaction time of drivers generally, including the quick and the slow. Individuals may not conform to type. Orville Thompson testified he applied his brakes “instantly” and, after consideration of the subject on the witness stand, his judgment was that after seeing the Dodge he went about four or five feet before he applied his brakes. Deducting distance traveled by the bus during this driver’s reaction time as estimated by himself, he had fifty-eight or sixty feet in which to stop. He could have stopped within thirty-six feet, with the front end of the bus twenty-two or twenty-four feet south of the Dodge. He did not do so, and the gruesome consequences which have been described followed.
The sixth finding of fact was correct. It was important only as bearing on the question whether the bus driver might have turned to the left, and for present purposes that subject need not be considered. The seventh finding of fact, that the Dodge did not turn over on its side or top as a result of the collision with the Ford, and before collision with the bus, was well sustained by evidence.
The position of the Ford immediately before the bus struck the Dodge, as described in the eighth finding, is not contested. In this connection it may be noted that the Dodge was not at any time off the pavement. It was in or at the center of the pavement when the Ford struck it. Its own momentum carried it toward the south. The force of the blow delivered by the Ford spun it around until it faced the direction from which it came, on the east side of the pavement. The result is that immediately after the Ford blow was delivered, the Dodge was in front of the bus — was in imminent peril of being struck by the bus.
It is contended the ninth finding, that the bus driver did not use all his appliances at the time he first saw the Dodge in peril, was not sustained by evidence. Without discussing the subject generally, the finding was sustained by evidence relating to the time which elapsed between the crash when the Ford struck the Dodge and the louder crash when the bus struck the Dodge. Estimates of witnesses ranged from simultaneousness to six or seven seconds. There was concrete evidence on the subj ect. Mrs. Minor, who lived in the house on the northwest corner of the intersection of U. S. 40 and Lyons avenue, was in her dining room when she heard the crash of the collision between the Ford and the Dodge. She was on the south side of her dining-room table and had just picked up some dishes to take to the kitchen sink twenty feet away. She walked hurriedly to the sink, and just as she put the dishes in the sink she heard the second crash. She then rushed outdoors to see what had happened. Orville Thompson testified he was only fifteen or twenty feet away when he first saw the confusion ahead of him and that the bus moved about nineteen feet after he applied his brakes, which included four feet after striking the Dodge. Without making any allowance for Mrs. Minor’s reaction time, the distance she moved in the interval between the two crashes was such that Thompson’s testimony concerning distance from the Dodge when he first saw it was disregarded as utterly absurd (finding No. 4); but his testimony concerning distance the bus moved after he applied his brakes was confirmatory of other testimony indicating he applied his brakes when about the length of the bus from the Dodge.
The tenth question requested particularization respecting what the bus driver omitted to do in the event he did not use all his appliances when he first saw the Dodge in peril. The answer was he used all brakes, but did not turn off the slab soon enough. It is contended the answer nullified previous findings that the bus driver could have stopped but did not, and exonerated him from all negligence except failing to turn to the right soon enough.
Another rule of appellate procedure must here be called to the attention of counsel for the defense. It is not the business of this court to be astute to discover conflicts between special findings, or conflicts between special findings and general verdict. It is the duty of the court to read special findings together, and to interpret them in such a way they may be harmonized, when that can be done. Likewise it is the duty of the court to harmonize special findings with the general verdict, when that can be done. Construed as indicated, there is no conflict between the special findings.
The first five findings established speed of the bus, distance within which it could be stopped, location of the Dodge before and at the time of collision, and distance of the bus from the Dodge when the driver saw the Dodge. The collision was a conceded physical fact. It would have been prevented if the bus driver had stopped within 36 feet, as he could have done. Consequently the tenth finding is to be read with the other findings, so that the full meaning is this: The driver used all brakes, but did not turn off the slab soon enough; but he did not use the brakes so that collision was prevented. This method of interpretation is quite analogous to the method employed when several grounds of negligence are found, and the jury then specifies a particular ground on which the verdict rests. That subject was considered at length in Roberts v. St. Louis & S. F. Rly. Co., 136 Kan. 749,18 P. 2d 167. In the opinion the decisions of this court were reviewed, and it was said:
“The result, stated in simplified form, is that when two grounds of negligence are pleaded, proved, and specially found, but in answer to a request to tell in what the negligence of defendant consisted, the jury specifies only one ground, the other is in effect negatived, unless the finding of the other in itself necessarily establishes negligence causing the injury.” (p. 761.)
In this instance the first five findings necessarily established negligence causing the collision.
At the first trial the jury was more meticulous in expressing its meaning. The ninth and tenth findings read:
“9. Did the driver of the bus use every appliance and means at hand that he could use, with safety to the passengers in said bus, to avert the collision with the Dodge sedan, after he saw the Dodge sedan in a position of danger? A. No.
“10. If you answer the preceding question No. 9 ‘No,’ then state, with particularity, what he omitted to do. A. He failed to apply his brakes in time to avoid the collision, nor did he turn out to the right in time.” (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 44, 10 P. 2d 33.)
Orville Thompson testified that when he saw the Dodge in peril he turned to the right. When the bus stopped its right front wheel was on the shoulder a foot and a half or two feet from the pavement. The right rear pair of wheels was near the edge of the pavement, perhaps just off the pavement. When the Ford took fire, the bus was pushed backward, and the precise location of the wheels of the bus when it stopped was not surely established. It is contended that if the bus driver had turned to the right in time to avoid striking the Dodge, he would have struck the Ford; that it was not possible to turn the bus far enough to the right to clear both cars and keep the bus upright; and that presence of the ditch made it foolhardy to turn off the shoulder. The court will not extend this opinion by a detailed discussion of the contentions stated and other related contentions, which present nothing but questions of fact. Whether under the circumstances it was feasible and practicable to avoid a collision by turning to the right was a clear question for the jury, and two juries have concurred in finding specifically the driver did not turn soon enough.
In connection with the subject of turning to the right, confusion of the bus driver in the emergency is exploited in the brief for the defense. There was no evidence that the bus driver was confused. He used the word confusion, but he used it to describe what was occurring in front of him after the Ford struck the Dodge. His own recital of what he saw and what he did excluded perturbation or bewilderment on his part. However, the court gave the jury an instruction relating to conduct in an emergency, and the bus driver had the benefit of the distinction between negligence and making a wrong choice in a crisis.
Orville Thompson testified concerning the various factors to be taken into account in making an emergency stop. One of them was safety to passengers. Defendant offered some evidence which was admitted and was then stricken out, requested two special findings which were not submitted, and requested an instruction to the jury which was not given, bearing on the subject. Defendant stresses the high duty of a carrier of passengers for hire to its own passengers, and assigns the rulings as error.
The testimony which was admitted and stricken out was to the effect that, taking into consideration the safety of passengers, a driver cannot stop as quickly as if the bus were empty, and the greater the speed the less safety in making a sudden stop. The following question was asked:
“Assuming you are going 25 miles an hour.and want to take into consideration the element of safety to your passengers in making an emergency stop, in what distance would it take you to bring it to a stop?”
The court held this necessarily opened a field for idle speculation: Going at twenty-five miles per hour, how quickly could the bus be stopped with safety to passengers when about to collide with a bigger and heavier bus filled with passengers? Going at twenty-five miles per hour, how quickly could the bus be stopped with safety to passengers when about to run down an automobile, kill two or three persons, and more or less certainly injure passengers in the bus? Other problems readily suggest themselves. Therefore, the inquiry was properly halted with testimony not stricken out that safety to passengers is a factor to be considered when making an emergency stop, along with speed, kind of road, distance within which to make a stop, which way to turn, etc.
Due care to passengers was merely a circumstance, like any other condition under which the event took place, and the jury was correctly and adequately instructed concerning taking into account all circumstances bearing on propriety of the bus driver’s conduct. There was no occasion to single out safety of passengers so that it might perform the function of a herring drawn across the trail to duty of the bus driver to occupants of the Dodge car threatened with horrible death. Besides this, the subject became of small consequence in view of Orville Thompson’s testimony that in this instance he acted without regard to the safety of his passengers. He said he put on all his air and used the emergency brake for an emergency stop. His recollection was passengers were moved forward in their seats but were not thrown out of their seats. There was evidence of some undescribed injury to one passenger, whether from application of the brakes or from collision with the Dodge was not disclosed. But the evidence and findings disclosed a situation in which a stop might have been made with safety to everybody.
Numerous other errors are assigned with respect to conduct of the proceedings before submission of the case to the jury. Some are trivial, "and some are conjectural. Some may not be considered. Thus, evidence offered and rejected was not produced at the hearing on motion for new trial. Others might be made the subject of discussion in an opinion if it were necessary, but it is not necessary. After careful consideration of the proceedings, the court is satisfied nothing occurred at the trial which influenced the jury in returning answers to the questions which were propounded, or which led to incorrect answers. When set to the task of stating facts, the jury canvassed the evidence and reached their conclusions from the evidence. Their conclusions, including the eleventh finding that plaintiff and his wife sustained no injuries in the first collision, were supported by evidence, and, facts establishing liability having been well found, little else matters.
The drivers of both automobiles were negligent, and the doctrine of last clear chance was involved in the case. Because the defendant contends an instruction given to the jury was contrary to the law of the case stated in the former opinion, it is necessary to discuss the contention to prevent future misunderstanding regarding an important subject.
When the court instructed the jury, the court could not know what view the jury would take of the evidence or what the findings would be, and it was necessary to instruct the jury accordingly. Thompson had testified he did not see the collision between the Ford and the Dodge. Fie said that as he approached the intersection he saw cars coining from the north on their own side of the pavement. He said he then glanced to the east and saw a truck coming from the east on Lyons avenue and within twenty or thirty feet of the pavement. It was slowing down, practically stopping, and he gave no further attention to it. When he turned his eyes to the road again the collision between the Ford and Dodge had occurred, and the first thing he saw was the back end of the Dodge in front of him. The jury might or might not believe this testimony. The truck driver testified he stopped thirty feet east of the pavement. Before he stopped he saw the Ford coming from the west, and while he was standing there the Ford came from the west and collided with the Dodge coming from the north. Thompson did not pretend he looked toward the west at any time, and the question arose whether he should have done so. Accepting as true Thompson’s testimony he did not, in fact, see the first collision, the question obtruded whether, in the exercise of reasonable care, he ought to have seen the Ford and the Dodge before he was confronted with the rear end of the Dodge' on the east side of the pavement. Thompson testified he first saw the Dodge when the front end of the bus was only fifteen or twenty feet from the nearest point of the Dodge. If he was telling the truth, the question arose whether he ought to have seen the Dodge sooner. Other questions raised by the evidence were whether plaintiff’s negligence ceased before collision with the bus, and if so, when; whether the occupants of the Dodge were in a condition of helpless peril when the bus struck the Dodge, and if so, when the condition was first manifested.
For present purposes it is sufficient to present a single instruction. The court told the jury, in substance and in effect, that if a plaintiff is guilty of negligence which was concurrent with defendant’s negligence and cooperated to produce the injurious result, the plaintiff cannot recover; but, if a plaintiff through his own negligence places himself in a position of peril from which he cannot extricate himself, he may recover if defendant saw, or by the exercise of reasonable care should have seen, plaintiff’s situation in time to avoid injuring him.
Defendant contends it would be liable only if Thompson actually saw pláintiff in a position of peril from which he could not extricate himself in time to prevent the collision. In other words, if Thomp son were watching a scrub ball game out in the field east of the highway until too late to avoid crashing into the Dodge, he would be excused because he did not actually see the Dodge sooner. That is not the law of this state.
In an excellent book just off the press, A Treatise on the Law of Torts, by Fowler Vincent Harper, professor of law in Indiana University (Bobbs-Merrill Company, Indianapolis, 1933), the origin and development of the doctrine of last clear chance in England, adoption and development of the doctrine in the United States, and the present status of the doctrine, are presented. Concerning the subject under consideration it is said:
“But a majority of jurisdictions allow a wider scope to the principle of last clear chance and hold the defendant to the duty of ascertaining the plaintiS’s perilous predicament, if, in the exercise of reasonable care, it would have been discovered and if the relation of the parties is such that the defendant owes to the plaintiff the duty of reasonable vigilance. Under this rule a plaintiff who has negligently exposed himself to a danger from which he is unable, at the time of the accident, to extricate himself, may hold a defendant who, as a reasonable man, should have discovered the plaintiff’s danger at any time after the situation had got beyond the plaintiff’s power to save himself and if such discovery would have enabled the defendant, by the exercise of reasonable care, to avoid the accident.” (p. 305, § 138.)
It will be observed defendant is not liable to plaintiff in helpless peril for what defendant should have discovered unless defendant owed to plaintiff the duty to be vigilant. This does not mean the duty must be owed to plaintiff as an individual and alone. It is sufficient that the duty of vigilance be to a class of persons of which plaintiff is a member. In this instance the collision occurred at a city street crossing used by automobiles approaching from east, west, north and south, and defendant rested under duty of vigilance to avoid injury to all highway users at that point, including plaintiff.
Concerning the subject of concurring negligence, embraced in the first part of the court’s instruction, Professor Harper says:
“The soundness of the principles under consideration obviously rests upon the fact that the plaintiff has, for some reason or other, allowed the perilous situation to get beyond his control. By his own negligence he has allowed his person or property to be exposed to danger, and he is now, in a sense, at the mercy of others. The law still holds others to the duty of acting with care, under the circumstances — the ‘circumstances’ now including the plaintiff’s peril. It follows, thus, that the doctrine of last clear chance does not include cases in which a plaintiff has the physical and mental ability to avoid the risk up to the moment of harm. His ‘continuing’ negligence, as it is sometimes called, continues to insulate the defendant’s negligence, and the ordinary rule of contributory negligence governs the case.” (p. 306, § 139.)
In this state the subject of what defendant in the exercise of reasonable care should have discovered, as distinguished from what he actually saw, first appeared in the opinion in the case of Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857 (1903). The case involved collision between a street car and a bicycle rider who fell in front of the street car at a street crossing. The man held to the car fender and was carried 75 feet before he fell under the wheels and was killed. The petition contained the following allegation:
‘“The defendant was guilty of further negligence in this, to wit: That the motorman in charge of said car which struck said James Arnold, deceased, saw, or by the use of reasonable diligence would have seen, said deceased, James Arnold, in a dangerous position, and said motorman, after seeing or by the use of reasonable diligence would have seen said James Arnold in said dangerous position, had sufficient time to have stopped said car and .thus avoided the accident and saved the life of said Arnold.’ ” (p. 268.)
This ground of negligence was presented to the jury by an instruction, and judgment for plaintiff was affirmed by this'court. A vigorous petition for rehearing, raising the precise point the defendant raises in this case, was denied.
In' the Arnold case what the motorman should have discovered was the bicycle rider’s dangerous position from which he could not extricate himself. Helplessness to save himself was not specifically pleaded nor referred to in the opinion of this court, and without consideration of the facts upon which the decision was based it might be regarded as applying to cases of continuing negligence. In the case of Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680 (1906), this subject was considered, and after stating the facts of the Arnold case the court said:
“A judgment against the street-car company was upheld only upon the theory that after he [the bicycle rider] had reached a position of danger from which he could not extricate himself — that is, after his negligence had ceased— the defendant’s employees were negligent in failing to discover his peril and stop the car.” (p. 538.)
In the opinion in the Dyerson case the subject of concurrent negligence was expounded as follows:
“The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that' climax only one party had the power to prevent the catastrophe, and he' neglected to use it, the legal responsibility is his' alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other.” (p. 536.)
The two decisions, Arnold and Dyerson, established the law in precise accord with the quotations from the treatise referred to, and the principles enunciated have been approved and applied many times. Typical cases recognizing duty to discover helpless peril are: McMahon v. Railway Co., 96 Kan. 271, 150 Pac. 566; Atherton v. Railway Co., 107 Kan. 6, 190 Pac. 430; Morlan v. Hutchinson, 116 Kan. 86, 225 Pac. 739; and Muir v. City Railways Co., 116 Kan. 551, 227 Pac. 536.
Typical cases of continuing negligence are: Railway Co. v. Bentley, 78 Kan. 221, 227, 93 Pac. 150; Marple v. Railway Co., 85 Kan. 705, 118 Pac. 692; Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756; Maris v. Street Railway Co., 98 Kan. 205,158 Pac. 6; and Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. 508, 21 P. 2d 322.
In the case last cited plaintiff drove his automobile on an interurban railroad track in front of an oncoming car and did not have time to get across. He invoked the doctrine of last clear chance. It was held the doctrine of last clear chance did not apply. Plaintiff’s negligence continued up to the time of the collision. To show that the doctrine of last clear chance did not apply, decisions of this court were collated, and the elements of the doctrine were stated as follows:
“(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaintiff was injured.” (p. 512.)
This statement is open to criticism in that in (3) the term to be defined is used in the definition whereby a special slant is given to the definition. “Clear” chance must still be defined, and a chance is a clear chance if exercise of vigilance would have discovered the helpless peril and avoided the injury. Besides that, to make a scientifically complete and accurate definition, the statement should be expanded. The following is the carefully worked out statement of the American Law Institute:
“Section 15. Defendant’s Last Clear Chance. A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable, to avoid it by the exercise of reasonable vigilance and care and
(b) the defendant
(i) knows of the plaintiff’s situation and realizes the helpless peril involved therein; or
(ii) knows of the plaintiff’s situation and has reason to realize the peril' involved therein; or
(iii) would have discovered the plaintiff’s situation and thus had reason to realize the plaintiff’s helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and
(c)thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.” (Restatement, Torts [Tent. Draft No. 10], § 15.)
To complete the subject of last clear chance the next section of the Restatement, relating to negligently inattentive plaintiff, should be given.
“Section 16. Last Clear Chance — Negligently Inattentive Plaintiff. A plaintiff who, by the exercise of reasonable vigilance, could have observed the danger created by the defendant’s negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant
(a) knew or had reason to know of the plaintiff’s situation, and
(b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm.” (Restatement, Torts [Tent. Draft No. 10], § 16.)
The case of Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6, has been cited as one of continuing negligence. In that case a motorcycle rider collided with a street car and was thrown under the running board of the car and dragged some distance. The jury found plaintiff was negligent in various respects. The only negligence attributed to defendant was failure to see plaintiff before the collision occurred. The syllabus reads:
“In an action to recover damages for injuries resulting from a collision between a motorcycle upon which plaintiff was riding and a street car of the defendant the doctrine of ‘the last clear chance’ does not apply where the negligence of the defendant is predicated upon the theory that defendant should have discovered the plaintiff’s danger in time to have avoided the injury, but did not in fact discover it.” (Syl. H 2.)
In the opinion it was said:
“We deem it unnecessary to enter into a discussion of the doctrine of ‘the last clear chance.’ It was relied upon in the petition and is urged here, but the doctrine finds no room for application to the situation presented by the facts determined by the jury. The plaintiff’s own negligence extended up to and actually contributed to his injury. There was no new breach of duty by the motorman subsequent to plaintiff’s negligence.” (p. 208.)
The opinion then cited the Dyerson case and other cases to show the doctrine of last clear chance does not apply when plaintiff’s negligence continued to the time of injury. Among the cases cited were the Marple case and the Coleman case, listed above as continuing-negligence cases. The opinion then said:
“The theory upon which plaintiff seeks to support the doctrine is that the motorman ought to have discovered the perilous situation of the plaintiff in time to have avoided the injury. In Coleman v. Railway Co., supra, and in Marple v. Railway Co., supra, it was held that the doctrine never applies where the negligence of the defendant is predicated upon the theory that defendant should have discovered plaintiff’s danger in time to have avoided the injury but did not in fact discover it.” (p. 209.)
Neither the Marple case nor the Coleman case held anything even remotely resembling what is stated here. Both cases were continuing-negligence cases. In each case the trial court had included in the instructions to the jury an element of the inapplicable doctrine of last clear chance — duty to discover peril. Since the jury might think this would warrant recovery by a plaintiff whose negligence continued to the very moment of collision, the instructions were held erroneous. There is no hint in either opinion that duty to discover peril is not an element of the last-clear-chance doctrine, and the Dyerson case, which settled the doctrine and its limitation in this state, was cited and relied on in both the Coleman and Marple cases. The Marple decision was per curiam. It was cited and relied on in the Coleman case, and the syllabus in the Coleman case tells just what was there decided:
“A railway company is not liable for injuries suffered by a person in attempting to pass over its track at a street crossing merely because its employee managing the train ought, in the exercise of reasonable care, to have discovered his perilous situation and stopped the train, where his own negligence operating at the same time contributed to produce the injury.
“The doctrine of the last clear chance does not apply so long as the parties are concurrently negligent.” (Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756.)
All the opinion in the Maris case professed to do was to tell what was held in the Marple and Coleman cases. The misstatement of what was held did not affect what was actually held, nor change the law in any respect, and the court has never regarded the Maris case as changing the law.
In the Atherton case, decided in 1920, four years after the Maris case, a last-clear-chance effort was made by distinguished counsel to take duty to discover peril out of the last-clear-chance doctrine. The syllabus reads:
“The trial court correctly charged that after plaintiff’s truck was negligently driven between the street-car tracks and the plaintiff was in a position of peril and his own negligence had ceased, the defendant would be liable if it saw or by the exercise of ordinary care would have seen him in such position in time to avoid injuring him, and failed to do so.”
In the opinion the court stated the following theorem, which it proceeded to demonstrate by reference to authority:
“The rule is so firmly fixed in this state and so thoroughly supported by the great weight of authority that it cannot' now be changed.” (Atherton v. Railway Co., 107 Kan. 6, 8, 190 Pac. 430.)
Now the only fault with the syllabus and the concluding portion of the opinion in the Maris case was that they omitted to express what was implicit in both — the controlling fact that plaintiff’s negligence continued to the moment of collision; and all that is necessary to make the syllabus in the Maris case state the law correctly is to add to it the concluding sentence of the first syllabus in the Coleman case relating to concurring negligence.
In the opinion in this case on the former appeal the contention of counsel for defense that there is no duty to discover peril was stated, and counsel’s citation 'of the Maris case in support of the contention was noted. The facts of the Maris case and the holding as expressed in the syllabus were stated. The court then said:
“However, w-e think this point of law is not important in this case, because the bus driver testified that he saw the Dodge in front of him before it had quit moving.” (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 45, 10 P. 2d 33.)
The result is the court did no more than present fully counsel’s point. The decision in the Maris case was neither approved nor disapproved, because the bus driver’s testimony took the point out of the case. Under these circumstances the contention that the imperfectly phrased syllabus of the Maris decision is the law and became the law of this case at the second trial is wholly without merit.
The jury awarded plaintiff damages as follows:
For destruction of car................................ $500.00
For medical services.................................. 354.60
For death of his wife.................................. 7,500.00
For personal injuries.................................. 27,000.00
Total
$35,354.60
It would unduly prolong this opinion, and be of interest to no one except the parties, to describe the consequences of plaintiff’s injuries and to state other pertinent facts bearing on the reasonableness of the award of damages. There is no indication the verdict was the result of passion or prejudice. The court is of the opinion the award for personal injuries was too large, and the majority of the court is of the opinion that item of damages should be reduced to $20,000. Other items of the verdict are approved.
The foregoing disposes of the merits of this controversy. Denial of a continuance was within the discretion of the district court, which was not abused. The motion for change of venue was without merit. The motion for new trial was properly denied.
The judgment of the district court is modified, provided plaintiff assent to the modification, by reducing the total amount of the judgment to $28,354.60. As modified, the judgment is affirmed. If, however, assent to modification be not expressed to this court within twenty days, the cause will be remanded to the district court for a new trial of the single issue of damages for personal injury to plaintiff. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for compensation for an injury sustained by plaintiff while in defendant’s employment.
The claim was denied by the commissioner of workmen’s compensation, but upon appeal was allowed by the district court.
Claimant was employed by John Morrell & Company as a traveling salesman. While driving upon the highway near Belleville, the windshield of his car was broken by a chunk of mud intentionally thrown from another car. Glass from the windshield was driven into his eye, causing the loss of sight and necessitating its removal. He claimed the injury occurred in the course of his employment and arose out of it, as he was required to travel upon the highway to reach customers.
As to the time, place and circumstances of the accident it happened in the “course of employment,” such phrase simply meaning that it happened while he was at work in his employer’s service. (Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863.) But to impose liability upon the employer, the injury must also arise out of the employment. The compensation act requires that the injury “arise out of and in the course of” the employment. Both elements must be present to justify a recovery. “Arising out of” means that the accident came out of the employment and makes it a condition precedent to the right to recover compensation that the occurrence shall have resulted from the risk reasonably incident to the employment and that there be a causal connection. While not ordinarily essential that it be peculiar to the particular employment in which the workman was engaged at the time of the injury, it must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business. Claimant’s injury might have been sustained while traveling for his own pleasure as well as while he was in defendant’s employment. The employment in no way provoked or invited the attack. Apparently the occupants of the car would have thrown the mud whether or not claimant had been employed by defendant. There was no causal connection as was found in the case of Stark v. Wilson, 114 Kan. 459, 219 Pac. 507, where a streetcar conductor, while standing on the rear platform operating his car, without fault on his part was stabbed and killed by a passenger. It was there held that robbery is a hazard incident to employment as a street-car conductor, since he is known to be in possession of money, and that an injury inflicted in the perpetration thereof or in an assault provoked by the fact that he was the conductor of the car is compensable, but the court pointed out that—
“The accident must result from a risk naturally and reasonably incident to the employment. The risk must be within rational comprehension as an incident of the employment, and must be one to which the workman would not- be equally exposed outside of the employment. It is not enough for the dependents to say the conductor would not have been killed if he had not been at his place on his car at the time he was stabbed. They must say he was killed because he was a street-car conductor on duty, and so was overtaken by a hazard to which performance of his duty exposed him.” (p.462.)
The meaning of the phrase “arising out of” is further distinguished in Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, and in Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174, and was defined in Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, by quoting from McNicol’s case, 215 Mass. 497, 498:
“ ‘It is sufficient to say that an injury is received “in the course of” the employment when it comes while the workman is doing the duty which he is employed to perform. It “arises out of” the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'" (p. 553.)
The rule was stated that:
“If in any case the cause of injury takes.its rise from something extraneous to the employment, the injury does not arise out of the employment, and recovery should be denied on that ground, not on the ground that the employment is not proximate cause. The problem is usually solved, however, by invoking the doctrine of proximate cause.” (p. 554.)
There was a causal connection between the employment and the death of a traveling salesman in the case of Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536, wherein the claimant while traveling over a highway was killed by contact with a high-voltage wire which had been strung above the highway and was blown down in a storm; the injury from the wire was a hazard of the road to which the employment of the deceased exposed him.
It appears that the injury sustained by claimant was the result of an attack by a third party in no way connected with his employment. Compensation has been denied for injuries inflicted by belligerent workmen and through horseplay. The rule was stated in Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, quoting from Corpus Juris:
“ ‘An employee is not entitled to compensation for an injury which was the result of sportive acts of coemployees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise “out of the employment,” and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.’ ” (p. 310.)
This rule was again expressed in Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113, where it was stated that an employee intentionally injured by another employee cannot recover under the workmen’s compensation act unless the wrongful conduct has become habitual and the habit is known to the employer. (See, also, 15 A. L. R. 588; 21 A. L. R. 758; 29 A. L. R. 437; 40 A. L. R. 1122 and 72 A. L. R. 110.) It would seem to follow that if a workman cannot recover for injuries intentionally inflicted by a fellow employee over whom the employer presumably has some control, he is not entitled to compensation for malicious injury by a third person in no way connected with the employment and entirely outside the employer’s authority, unless there is some circumstance that, by reason of his employment, makes him peculiarly and especially subject to assault. (See Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259; Stark v. Wilson, supra; Phillips v. Kansas City L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4.)
All persons are exposed to the pranks of boys throwing missiles at passing cars and at other objects, movable or stationary, and the claimant was no more exposed to such hazard by virtue of his employment than anyone else. Neither can it be said that this was a hazard of the road. This was not a piece of mud thrown by the wheels of a passing car. It was deliberately thrown, and it might have been thrown at claimant wherever he was. While there seems to be a tendency toward more liberality in recovery with respect to street risks incurred in the course of employment (see note 80 A. L. R. 126), we do not believe that under the facts of this case it should be held, as a matter of law, that the claimant’s injuries arose out of his employment.
The judgment of the lower court awarding compensation is reversed, and the cause is remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the holder of a promissory note which had been sold to him after its maturity date and at that time indorsed to him by the bank of which defendants are the receivers. Defendants’ demurrer to the petition was overruled. They stood on the demurrer, judgment was rendered against them, and they have appealed.
The legal question presented is the liability to his transferee of one who, for value, sells and indorses a past-due promissory note. Appellants contend that plaintiff is not a holder in due course, as that term is defined in R. S. 52-502 (N. I. L. § 52), and that defend ants are not liable as indorsers, as such liability is stated in R. S. 52-607 (N. I. L. § 66). The point would be well taken if the action here were against the maker of the note. (Beasley Hardware Co. v. Stevens, 42 Ga. App. 114, 155 S. E. 67; Security Holding Co. v. Johnson, 57 S. D. 163, 231 N. W. 536; McMillan v. Gardner, 88 Kan. 279, 128 Pac. 391; Wulfekuhler State Bank v. Wible, 121 Kan. 66, 245 Pac. 1067.)
But this is not an action against the maker of the note. It is an action by an indorsee against the indorser to him of an overdue note. In 31 Harvard Law Review, 1104, Chafee has an interesting and instructive article on Rights in Overdue Paper, which we need not analyze carefully here.
Prior to the adoption of our negotiable-instruments law it was the rule of the law merchant (8 C. J. 379, 406) and the rule in this state (Swartz v. Redfield, 13 Kan. 550; Shelby v. Judd, 24 Kan. 161; Lank v. Morrison, 44 Kan. 594, 24 Pac. 1106) that one who sold and indorsed a. promissory note after its maturity date, as between himself and the transferee reissued the instrument as one payable on demand. That rule was embodied in our negotiable-instruments law (R. S. 52-207 [N. I. L. §.77]), which reads:
“An instrument is payable on demand: (1) Where it is expressed to be payable on demand, or at sight, or on presentation; or (2) in which no time for payment is expressed. Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person so issuing, accepting or indorsing it, payable on demand.”
The statute appears specifically to apply to a situation such as is presented here. The instrument was “indorsed when overdue,” and “is, as regards the person so . . . indorsing it, payable on demand.” It was alleged in the petition in this case that demand for payment had been duly made upon the indorser, and, as the case comes to us, that matter was not put in issue. As supporting these views, see Idaho St. Bank of Twin Falls, Ida., v. Hooper Sugar Co. et al., 74 Utah 24, 276 Pac. 659; 68 A. L. R. 969; Riesch v. Degnitz, 200 Wis. 379, 228 N. W. 488; Sheffield v. Cleland, 19 Ida. 612, 115 Pac. 20; Sledge & Norfleet Co. v. Dye, 151 Miss. 693, 118 So. 414; Ginter v. McBride et al., 222 Mo. App. 1156, 14 S. W. 2d 41.
If, perchance, the statute.and authorities just cited should, for any reason, be deemed inapplicable to the situation here presented, we note that our statute (R. S. 52-107 [N. I. L. § 196]) provides: “In any case not provided for in this act the rules of the law merchant shall govern,” and, as we have heretofore seen, the rule of the law-merchant sustains the judgment of the trial court.
Appellants cite Prudential Inv. Co. v. National Reserve Life Ins. Co., 137 Kan. 659, 21 P. 2d 373, but we are unable to see that it has specific application here. That case had to do with marking corporate or municipal bonds as to ownership, how they could be so marked, the effect of so marking them, how the mark could be eliminated, and the effect of the elimination.
We find no error in the record, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for wrongful death. The trial court sustained defendant’s motion for judgment on the pleadings and the opening statement of plaintiffs’ counsel. Plaintiffs have appealed.
The facts set out in the petition and opening statement may be summarized as follows: Wichita street is a north-and-south street in the city of Wichita. The defendant railroad company has a double line of tracks along the center of the street. In the block north of its intersection with Central avenue on each side of the tracks the street is paved for vehicular traffic, and there are parkings, sidewalks and "residences (one apartment) facing the street. The deceased was an elderly man, slightly hard of hearing, who occupied his time and made some money picking up papers, scraps of light metal and the like, which he sold. He used a cane with a brad or sharp point with which he would pick up articles and put them in a gunny sack which he carried over his shoulder. Shortly before noon on February 5, 1931, on a clear day, he walked between two of the residences on the east side of the street westward onto the pavement of the street at a point about 100 feet north of Central avenue and then walked in a southwesterly direction across that part of the pavement east of the railroad tracks. As he did so defendant’s motor car came along the street from the north on the east of its two tracks, proceeding slowly at ten to twelve miles per hour. As the deceased neared the railroad track the motorman saw him and rang the bell and sounded a klaxon. The deceased appeared to pay no attention to him, but stepped on the track and was struck by defendant’s car. He fell between the tracks, a little nearer to the west rail than to the east, and was killed. About the time deceased stepped on the track and was struck defendant’s motorman applied the brakes with such force that the motor car was stopped within twenty-eight feet of the point of collision, with its brakes set so tight that it was necessary to get a locomotive to move it.
The facts as stated of course show a clear case of negligence on the part of deceased which contributed to his death. He was not crossing at an intersection, but near the center of the block. The railroad track itself was a sign of danger. The defendant’s motorman properly and diligently rang the bell and sounded the klaxon. It is not contended he knew anything of the deceased’s slight deafness. He had reason to suppose the deceased heard the warning bell and the klaxon. (52 C. J. 253.) The doctrine of the last clear chance is not available to plaintiffs, for the negligence of the deceased continued up to the time and place of collision. (Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. 508, 511, 512, 21 P. 2d 322.)
Appellants do not seriously contend that the deceased was not guilty of negligence which brought about or contributed to his death, but plaintiffs alleged in the petition that defendant’s motorman wantonly and willfully ran the motor car against the deceased, causing his death, and it is argued that when wantonness and willfulness cause injury or death contributory negligence is not‘a defense. In this case, however, plaintiffs pleaded and their counsel stated the facts which resulted in the death. The facts so pleaded and stated do not warrant the conclusion pleaded that defendant’s motorman intended to kill the old gentleman, or that he wantonly did so, hence that allegation in the petition is an unwarranted conclusion from the facts pleaded. (See Gilbert v. Railway Co., 92 Kan. 697, 142 Pac. 270.)
The result is the judgment of the court below must be affirmed. It is so ordered.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for conversion of a player piano. Plaintiff recovered, and defendants appeal.
Plaintiff is a dealer in musical instruments. He sold the piano to Mrs. Ella Dearen, who resided in Atchison, taking the purchaser’s note for the price, secured by chattel mortgage on the piano. Mrs. Dearen removed to St. Joseph, Mo., taking the piano with her without consent of plaintiff. In St. Joseph Mrs. Dearen resided with her daughter, Anna Brumfield, in whose home the piano was kept. Mrs. Dearen died, owing a large part of the price of the piano. Plaintiff made demand on Mrs. Brumfield for possession of the piano, and delivery of possession was refused. Plaintiff discovered that before her death Mrs. Dearen had transferred the real estate on which she resided in Atchison to Mrs. Brumfield. Therefore plaintiff brought suit for damages for conversion in Atchison county, and attached Mrs. Brumfield’s real estate there.
The evidence was conflicting, and there were no special findings of fact. This court cannot know how much, if any, of the testimony for defendants was believed, and all of it inconsistent with plaintiff’s evidence must be disregarded. The chattel mortgage vested plaintiff with title to the piano. The mortgage contained a provision against removal from Atchison. Its removal without plaintiff’s consent gave him right to possession, and the possession of the mortgagor in St. Joseph was tortious. Mrs. Brumfield knew the facts, and after the mortgagor’s death she had no right to possession as against plaintiff. There was testimony that Mrs. Brumfield desired to take over her mother’s account and pay the balance due, but when she learned the amount she did not wish to take over the account. When plaintiff sent a man to get the piano, he was told he could not have it, that Mrs. Brumfield wanted something for taking care of it.
Mrs. Brumfield was not a warehouseman. She had no statutory lien for storage, and she had no’ common-law lien for storage (National Bank v. Kilborn, 114 Kan. 29, 216 Pac. 812). There was no proof she did anything involving either effort or expense in taking care of the piano. So far as the evidence disclosed, it simply continued to sit where her mother left' it. At no time previous to demand for possession did Mrs. Brumfield intimate she would ask compensation for storage. When possession was demanded she named no time nor rate of storage nor indicated any sum which plaintiff might pay to obtain possession. At the trial she offered no proof of valué bf anything she did. She testified the piano was a worry to héx*, and she thought plaintiff should pay her for her worry. Undér these circumstances the court was justified in finding as a matter of fact that she neither had nor made a bona fide daini for storage of the property, even if she were in position to make such a claim. However, she never did have any rightful claim to possession, a fact which distinguishes the case of Tire Co. v. Kirk, 102 Kan. 418, 170 Pac. 811, on which defendants rely. The result is, refusal to deliver the piano on demand constituted conversion.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
A rehearing was ordered in this case. It has been reargued orally, and additional briefs have been duly considered.
Appellant suggests that our first opinion reversing the judgment and remanding the cause for a new trial should be modified in certain particulars. Appellees suggest that in view of certain admissions in appellant’s petition to modify our first opinion the trial court’s judgment should now be affirmed.
Considering first the matters urged by appellant, he contends that instruction No. 15 was erroneous and prejudicial. It reads:
“15. The examination required of a director, himself, into the affairs of the bank must be full and complete. In making such an examination, it is necessary that the director make an investigation himself, and he is not authorized to accept figures or balances given by some other officer or director of the bank. He is supposed to ascertain, himself, the amount of cash in the bank, examine the cash items in detail and ascertain the amount in the aggregate, he must make the same examination of notes, rediscounts, certificates of deposit, and must ascertain whether or not the general ledger of the bank corresponds with the daily ledger and statements, he must also ascertain the collection record, as to collections made and remitted, and deposits in checking accounts, and all other affairs of the bank so as to ascertain, if possible, by investigation the true condition of the bank, and if a director does not make this investigation, and accepts the statement or figures of some other officer of the bank and such statement or figures are incorrect, the director is held by law to know the true condition of the bank.”
It is contended that this instruction exacts a higher standard of thoroughness on the part of a director in examining a bank than is imposed by the statute. This contention is measurably justified. The statute, quoted in full in our original opinion (137 Kan. 190) is not fairly open to the interpretation that each director must examine the bank independently. The directors may, and indeed should, collaborate in examining the bank; but, of course, if a director does not attend the meetings of the board of directors and does not collaborate with them in examining the bank, then to avoid civil liability in a case like the present his independent examinations must be of such frequency and thoroughness that he will, “if possible,” know its condition. (R. S. 9-163.)
Another criticism of instruction No. 15 is that it was merely a general statement of abstract law, while the recognized rule of good trial practice is that instructions should be confined to concrete statements of law applicable to the issues raised by the pleadings and to the pertinent facts developed by the evidence. (State v. Medlicott, 9 Kan. 257, syl. ¶ 5.) Since the only infirmities of the bank which rendered it insolvent inhered in the $53,000 worth of forged notes and the shortage of $41,000 of deposits which had been systematically concealed by the cashier's dishonest manipulation of the adding machine, it was immaterial in this case whether appellant failed in respect to the other duties detailed in instruction No. 15. In this connection appellant also insists that his requested instruction No. 5 should have been given. It reads:
“5. The law requires a director of a bank to make examinations of the institution with such frequency, thoroughness and accuracy as will with reasonable certainty acquaint him with the condition of the bank, and the examination should be of such a character as will result in knowledge of the condition of the bank, if such knowledge could possibly within the range of reasonable frequency and thoroughness be obtained.”
This requested instruction No. 5 conformed quite closely to the statutory provision itself, and it, or something to the same effect, should have been included in the instructions given.
The trial court also declined to give requested instruction No. 6. It reads:
“You are instructed that if you find the defendant did not attend regular quarterly meetings of the board of directors, yet if at other times he made thorough examinations of the condition of the bank by examining its note case, the character and amount of deposits, the cash reserve, the amount of surplus and undivided profits, the financial responsibility of borrowers, and the security held by the bank for loans, and other matters disclosing the true financial condition of the bank, and that such examinations were of the frequency and thoroughness required by law, as otherwise stated in these in structions, then he fully complied with the requirements imposed upon him by law, even though he failed to attend regular meetings of the board.”
In view of what has been said above, some such instruction should have been given.
On the error assigned on the exclusion of evidence which would have explained why defendant so frequently failed to attend the regular monthly meetings of the board of directors, this court is satisfied with the disposition made of that point in our first opinion.
Touching the exclusion of proffered testimony of the other dL rectors which would have shown that they did not discover the forged notes or the falsification of the amount of deposits, we hold that what these other directors did or failed to do in examining the bank could have no practical bearing on the issue of the frequency and thoroughness of the examinations made by appellant, consequently this excluded evidence was irrelevant and immaterial. On mature reflection, however, the court now withdraws its dictum in paragraph 9 of our first opinion in which we suggested the competency of evidence to show the proper method of examining a bank and the deductions the jury might draw therefrom in respect to the issues of fact involved in this case; and we also withdraw what we said in the same paragraph touching the admissibility of expert opinion evidence.
It is finally urged that in the new trial ordered this court should direct that the issue of fact resolved in favor of appellant in the thirteenth special finding should stand. But as first tried this cause was cluttered with alleged delinquencies of defendant in respect to his duty as agent in the sale of plaintiff’s farm, and was also complicated by bringing into consideration the irrelevant provisions of the statute which govern criminal and not civil liability of bank directors; therefore we regard it as more just to all concerned that the new trial ordered should be de novo and not limited. But nothing we have said should be construed to prevent the litigants, with permission of the trial court, from reforming the pleadings for purpose of simplifying the issues to be joined and adjudicated.
Less space will be required to dispose of appellees’ suggestion that appellant’s admissions in his petition to modify and the brief in its support now make it clear that the judgment in their behalf should be affirmed. That theory is altogether too subtle to be persuasive. It wholly ignores the prejudicial effect of instruction No. 4 which, if followed implicitly, should have resolved special finding 13 as well as special finding 14 in their favor. For the error inherent in that instruction, even if there was no other substantial error in the record, the judgment could not be permitted to stand.
With the foregoing modifications of our first opinion, we adhere to our former judgment reversing the judgment and remanding the cause for a new trial.
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The opinion of the court was delivered by
Burch, J.:
The action was one by landowners to enjoin the sheriff from selling their land on execution, and to quiet title against the judgment sought to be enforced by means of the sale. The judgment creditor was made a party defendant. The relief prayed for was granted, and the judgment creditor appeals.
In November, 1921, Milton C. Combs executed his note to the Federal Land Bank of Wichita for $10,000, and secured payment by first mortgage of 1,760 acres of land which he owned, and which is the land involved in the present action. In December, 1922, Combs executed his note for $10,000 to Mayo Thomas, and secured payment by second mortgage of the land. This note and the mortgage securing it were assigned to Katie E. Thomas, the appellant. In May, 1928, the land bank commenced an action to foreclose its mortgage, and Katie E. Thomas was made a party defendant. She appeared and answered, and in a cross petition prayed judgment against Combs for a balance of $7,000 due on her note. She also prayed for foreclosure of her mortgage as a second lien. Judgment was rendered in favor of the land bank, and it was decreed to have a first lien. A personal judgment was rendered in favor of Katie E. Thomas and against Combs for $8,557.83. Judgment was also rendered in her favor for foreclosure of her mortgage, and she was decreed to have a lien subject to the lien of the land bank. On prsecipe of the land bank an order of sale was issued and, on November 3, 1928, the land was sold to the land bank for the amount of its judgment, interest and costs. Katie E. Thomas did not bid at the sale. The sale was confirmed, and a certificate of purchase was issued to the land bank. Combs conveyed the land to Archie McFall. The conveyance conferred on McFall privilege to redeem as landowner. Within twelve months after the sale McFall redeemed by paying into court the purchase price and accrued interest and costs, a certificate of redemption was duly issued to McFall, the redemption money was paid to the land bank, and the land bank surrendered its certificate of purchase, all in accordance with the redemption law. McFall conveyed the land to Frazier, Martens, and the Gabel Land and Live Stock Company, the plaintiffs in the present action. In October, 1932, Katie E. Thomas caused execution to be issued on her unsatisfied personal judgment against Combs. The execution was levied on the land, notice of sale was published, and the present action was commenced.
The foreclosure action which has been referred to bore the district court number 2,297. On the day the judgment was entered in that case judgments were entered in cases 2,298 and 2,299, in favor of the land bank and against Combs, for foreclosure of mortgages on other lands. Those lands were sold to the land bank, Combs conveyed to McFall, and McFall redeemed. Katie E. Thomas was not a party to the actions in cases 2,298 and 2,299. After McFall had redeemed, and after expiration of eighteen months from the dates of sales, Katie E. Thomas undertook to enforce her unsatisfied personal judgment against Combs rendered in case 2,297 by sale on execution of the land involved in the other cases. In an action commenced by McFall, sale was enjoined, and on appeal to this court by Katie E. Thomas the judgment was affirmed. (McFall v. Ford, 133 Kan. 593, 1 P. 2d 273; 133 Kan. 678, 3 P. 2d 463.) Writ of certiorari was denied by the supreme court of the United States (285 U. S. 537), an an application for rehearing by that court was denied.
Under the redemption law of this state land sold to satisfy a judgment may be redeemed by the landowner and by certain creditors. Within the first twelve months after sale the landowner has exclusive privilege to redeem. If redemption be not made within that period, any creditor whose demand is a lien may redeem within fifteen months from date of sale, and any creditor whose demand becomes a lien before expiration of the time within which creditors may redeem, may redeem. (R. S. 60-3440 and 60-3441.) The redemption law also contains the following provision:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem, within the fifteen months hereinbefore provided for.” (R. S. 60-3460.)
In the decision in the case of McFall v. Ford there was a difference of opinion occasioned by the fact that Katie E. Thomas was not a party to the actions in cases 2,298 and 2,299, and the minority view was that because she did not have her day in court at any stage of the proceedings resulting in sale and redemption of the land involved in those actions, her privilege to enforce the lien of her judgment in case 2,297 was not cut off by the statute forbidding resale after redemption. In this instance Katie E. Thomas was an original party defendant to the action in case 2,297. She pleaded her note and pleaded her mortgage as a second lien. She obtained a personal judgment against the principal defendant, Combs, and she obtained a judgment foreclosing her mortgage as a second lien. She thus became a party having an adjudicated inferior lien. The judgment ordered the land sold, and ordered the proceeds to be applied, first to payment of taxes; second, to payment of costs and accruing costs; third, to payment of the land-bank judgment; and fourth, to payment of the judgment in favor of Katie E. Thomas. The judgment further provided that on confirmation of sale a certificate of purchase should be issued to the purchaser, and the judgment concluded as follows:
“And that said defendants and each of them (which included Katie E. Thomas) and any and all persons whomsoever claiming by, through or under them or any of them, upon the confirmation of said sale shall be, and they are hereby by the court forever barred, foreclosed and excluded from any and all right, title, interest and estate, lien upon or equity of redemption in and to said described real estate, and every part thereof; subject only, however, to the right of redemption as by law in such case made and provided.”
The redemption law so far as pertinent has been set forth above. The right of redemption included protection of the redemptioner and his grantees from resale in case he redeemed, and Katie E. Thomas was bound by the judgment.
R. S. 60-3126 provides that judgments shall be liens on the real estate of the debtor within the county. Katie E. Thomas contends that when her judgment against Combs was rendered she had two liens on the same land to pay the same debt, one the contract lien merged in the foreclosure judgment, and the other by virtue of the statute. Therefore, when the foreclosure sale failed to produce money to satisfy the judgment, and the debtor’s grantee redeemed, the general lien could be enforced by sale on simple execution.
The judgment lien statute is a general statute, operative in all cases except those for which special provision is made. The statute does not even exempt homesteads, but has no application to them. The redemption statute applies specifically to sales, on any kind of process, of land which has once been sold. Besides that, the contention of Katie E. Thomas is contrary to the judgment in the foreclosure case. The judgment was that on confirmation of the foreclosure sale Katie E. Thomas had no interest in or lien upon the land, except such as the redemption law gave, and the redemption law expressly forbade her to sell the land again.
In connection with the subject just discussed, Katie E. Thomas renews a contention made in the case of McFall v. Ford to the effect the foreclosure sale left title just where it was because no sheriff’s deed was issued, and consequently the general judgment lien was not affected by sale and redemption, except that the lien was advanced to a first lien. In the opinion denying a rehearing in McFall v. Ford it was pointed out that what the statute treats as a sale and calls a sale, is a sale, for the purpose of the statute. It is the statutory sale which is confirmed, and in this instance, after confirmation of the sale to the land bank, resale at the behest of Katie E. Thomas was forbidden. That is the plain law of this state.
Katie E. Thomas contends the redemption statute of this state contravenes provisions of the constitution of this state, and contravenes the due process and equal protection of the law provisions of the constitution of the United States. She is not in position to call on the court to consider either of these contentions.
Katie E. Thomas’ answer in the present case pleaded unconstitutionality of the redemption statute. The cause was submitted on the pleadings and a stipulation and agreed statement of facts. The district court simply found generally for plaintiffs, and the case is presented to this court precisely as it was presented to the district court. While appellees have not made the point that Katie E. Thomas is not privileged to raise the constitutional questions, challenge of the constitutionality of an act of the legislature of this state is a matter of such gravity the court ought not to consider the challenge when the face of the record discloses disqualification to make it.
The redemption statute antedated the Katie E. Thomas mortgage. The statute assumed to define the nature and extent of the remedy in case she were obliged to enforce the security. When it became necessary for her to foreclose, the proceeding prescribed by the statute was followed. The very judgment she now seeks to enforce by execution prohibited her from resorting to execution after sale, confirmation and redemption. Whether the statute be sound or unsound, that was the judgment of the court. She acquiesced in the judgment, and it became final. Sale was made, and was confirmed, and the landowner redeemed. The present plaintiffs then purchased the land, became owners in fee simple and privies in interest with the redemptioner, and went into actual and peaceable possession. Under these circumstances, Katie E. Thomas cannot be heard to say the statute forbidding resale is unconstitutional.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal by codefendants Diana R. Edwards and Dave L. Longstreth from their convictions by jury trial of felony murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). Each defendant received a life sentence on the murder conviction and a concurrent fifteen years to life sentence on the robbery conviction.
In the early morning hours of September 24, 1974, the body of Rudy R. Russell was found in the parking lot of Frankie’s Lounge in Wichita. He had been shot in the chest. There were no leads in the homicide until December 6, 1975, when an informant told police that Diana R. Edwards had said she was present at the killing. Police located Ms. Edwards in Leavenworth and Wichita officers questioned her at her home on January 14, 1976. Because of people coming in and out of the apartment, Ms. Edwards requested that the questioning continue elsewhere. The officers and Ms. Edwards went to the Leavenworth police station where the questioning continued. Ms. Edwards was not given the Miranda warning at any time in Leavenworth. She admitted being present at the homicide but did not implicate herself. She identified codefendant Dave L. Longstreth as the person who shot Russell as Longstreth was robbing him.
The officers relayed this information to their superior in Wichita. They were advised to see if Ms. Edwards would accompany them to Wichita for further questioning (her home had previously been, in El Dorado). She agreed and was questioned the following day at the Wichita police station. She was given a Miranda warning at that time and was told she was free to leave but declined to do so. She repeated essentially the same story given earlier. Longstreth was arrested a short time later. On questioning, Longstreth admitted shooting the victim in a robbery attempt, but implicated Edwards as being an accomplice in the robbery. Edwards was then confronted with the Longstreth statement and gave a subsequent statement which somewhat modified her earlier statements. She and Longstreth were both charged and convicted of felony murder and aggravated robbery. The statement of Longstreth and the final statement of Edwards are similar in many respects. All statements concur as to the basic acts of the two defendants. The defendants’ statements are in accord that they were living together in El Dorado, that they drove to Wichita with Ms. Edwards being the driver, that they stopped at the T-Bone Lounge, that Longstreth had a gun there but did not get out of the car, that they drove to Frankie’s Lounge, that Longstreth got out of the car and approached Russell, ran back to the car after he shot him, and the pair then drove back to El Dorado. There is no substantial disagreement on how they disposed of the gun used as well as the destruction of the credit cards taken and the disposal of the victim’s wallet. The final Edwards’ statement implies a knowledge of the fact that Longstreth intended to rob Russell. The statement of Longstreth is that he robbed Russell at the urging of Edwards.
At trial Edwards testified and strongly denied any knowledge of the robbery plan. Longstreth did not testify. The statement of Longstreth was introduced as was the final statement of Edwards. No limiting instruction was requested or given.
With this summary of the facts, we will turn now to the points of error urged by each defendant.
DIANA R. EDWARDS
Ms. Edwards claims error in the admission of her statement. She contends that the final statement was “fruit of the poisonous tree” of her earlier statements. This is based on the contention she was actually in custody when questioned in Leavenworth without a Miranda warning.
The rules on custodial interrogation were given in State v. Bohanan, 220 Kan. 121, 551 P.2d 828 (1976):
“A defendant’s statements to a police officer are not automatically inadmissible for failure to give him the Miranda warnings unless the statements are the product of custodial interrogation.
“A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency.” (Syl. 1, 2.)
The determination of custodial interrogation must be on a case-by-case basis. In Bohanan we further said:
“Since Miranda this court has developed a number of general guidelines to be applied in determining whether or not a custodial interrogation has taken place. In State v. Brunner, 211 Kan. 596, 507 P.2d 233, we held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. We have also declared that a general questioning of citizens in the course of an investigation in the fact finding process does not constitute custodial interrogation. We defined an investigatory interrogation as the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. (State v. Frizzell, 207 Kan. 393, 485 P.2d 160.) In State v. Carson, 216 Kan. 711, 533 P.2d 1342, Syl. 5, we suggested that circumstances bearing on whether a person questioned was subjected to ‘custodial interrogation’ requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of interrogation. In Carson we also stated that the fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning but it may be one of the determinative factors in arriving at a decision whether such a warning is needed.” (pp. 128-129.)
In Bohanan we found the Miranda warning was not necessary because defendant was not in custody. When he gave a confession there were no charges or warrant, questioning was merely based on a hope of getting more information leading to identity of the person committing the crime, the person was free to go, and there was no threat or force. All these factors exist in the present case. The record has been carefully examined and it is clear that Ms. Edwards was not in custodial interrogation in Leavenworth. The questioning was part of the investigative process and no Miranda warning was necessary. The point is without merit.
Ms. Edwards next complains of being tried in a joint trial with Longstreth who did not testify, but whose statement incriminated her. The trial court in admitting the statement over her objection, applied the doctrine of interlocking confessions. In State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978), we held that this doctrine was not an exception to Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). The Sullivan case held:
“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.
“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.” (Syl. 3, 4.)
The question then becomes whether the admission of the Longstreth statement without a limiting instruction as to Edwards was harmless error beyond a reasonable doubt. The record has been carefully examined. It is improbable that Edwards would have been convicted without the Longstreth statement. Under these circumstances its admission without a limiting instruction was not harmless error. The convictions of Edwards must be reversed and the case remanded for a new trial as to Edwards.
DAVE L. LONGSTRETH
Mr. Longstreth claims error in the admission of his statement on the same “fruit of the poisonous tree” theory urged by Ms. Edwards. The previous determination of this issue adversely to Ms. Edwards disposes of this point.
Mr. Longstreth next claims error in the failure of the court to sever the trials. He had ample opportunity to cross-examine Ms. Edwards. In addition, his own statement alone could have convicted him on both counts. This point is without merit.
Longstreth’s theory of defense was voluntary intoxication. The trial court refused to instruct on voluntary intoxication. Thus defendant contends he was thereby deprived of his defense. The defendant presented evidence of his drinking habits. His own statement showed his intent to rob when he approached the victim. In State v. Rueckert, 221 Kan. 727, 732-733, 561 P.2d 850 (1977), we said:
“Evidence of intoxication alone does not necessitate the giving of instructions covering lesser degrees of homicide in a felony murder case when the underlying felony is aggravated robbery. Voluntary intoxication is not a defense to a general intent crime, although it may be used to demonstrate the inability to form a particular state of mind necessary for a specific intent crime. (State v. Farris, 218 Kan. 136, 542 P.2d 725.) Specific intent is not an element of the crime of aggravated robbery. (State v. Thompson, 221 Kan. 165, 558 P.2d 1079.) Therefore, either defendant perpetrated the robbery and is responsible for the murder, or he did not commit the robbery and murder, and is not guilty of any degree of homicide. . . .”
See also State v. Cunningham, 222 Kan. 704, 707-708, 567 P.2d 879 (1977), where drug intoxication was determined not to be a defense to aggravated robbery as no specific intent is required.
Voluntary intoxication is not a defense to general intent crimes. Specific intent is not an element of a felony murder or aggravated robbery. Failure to give the instruction requested by Longstreth was not error.
Longstreth next claims error in the giving of instruction No. 9 as follows:
“The defendants are charged with First Degree Murder under the rule of law sometimes called the ‘Felony Murder Rule.’ It is not a defense to the charge of murder under the Felony Murder Rule that the killing was accidental.
“You are further instructed that if the jury is convinced beyond a reasonable doubt that it was reasonably foreseeable that a killing might occur in the perpetration of the crime of Aggravated Robbery the exact manner in which that killing might occur need not be foreseen.”
He contends “approximate cause” (sic) should have been substituted for “reasonably foreseeable.”
Instruction No. 2 included the following element: “(3) While in the perpetration of the crime of Aggravated Robbery, a felony.”
The two instructions, taken together, adequately state the law of Kansas on felony murder.
Longstreth’s final claim of error relates to the trial court’s permitting the state to introduce evidence pertaining to the identity and death of Rudy Russell after Longstreth’s counsel made the following statement:
“MR. WILSON: We wish to admit, Your Honor, that the deceased is Rudy R. Russell, and that his identity is not a question of fact in this case; and that is as such that Mr. Russell did die on September 24th, 1974.”
The state declined to accept that admission in lieu of testimony.
In a criminal prosecution the making of an admission by the defendant does not bar the state from proving the fact independently as though no admission had been made. (State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 [1975]; State v. Wilson, 215 Kan. 28, Syl. 5, 523 P.2d 337 [1974].)
All points raised by defendant Longstreth have been carefully considered and found to be without merit.
The judgment of the lower court is affirmed as to the appellant Longstreth, but the convictions and judgment of Diana R. Edwards are reversed, and the case as to her is remanded for a new trial. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of three counts of aggravated robbery (K.S.A. 21-3427). The defendant, Steven R. McCarty, was sentenced pursuant to the mandatory minimum sentence provisions of K.S.A. 1976 Supp. 21-4618, which applies to convictions of Article 34 crimes where the defendant used a firearm. The facts in the case are not greatly in dispute and are as follows: Count 1 involved the robbery of Griff’s Drive-In restaurant in Kansas City, Kansas, on October 30, 1976. Two restaurant employees positively identified the defendant, Steven R. McCarty, as the robber who displayed a pistol and compelled them to hand over the restaurant’s money. Count 2 involved the robbery of Miller’s Retail Liquor Store in Kansas City on December 7, 1976. In this robbery the defendant’s accomplice was identified as having a gun. Although the defendant McCarty was identified as one of the robbers, there was no testimony that he personally used a firearm. Count 3 involved a robbery of the Highway Oil filling station in Kansas City on December 16, 1976. According to the testimony of the station employee, the robbery was committed by the defendant McCarty and another man and it was the defendant McCarty who pointed a pistol at the employee and demanded all of the money on the premises. Money was taken in each of the three robberies described in the three counts. The defense to each count was alibi. The only real issue presented at the trial was the identity of the defendant as one of the robbers.
As his first point on appeal, the defendant contends that the trial court erred in denying the defendant’s request that the court submit to the jury a special question as to whether a firearm was used by defendant in the commission of each of the crimes charged. The record shows that, following introduction of the evidence in the case and after the parties had rested, the trial court showed both counsel the proposed instructions to be given to the jury. There were no objections to the instructions, but counsel for the defendant requested an additional verdict form so that the jury could find as a matter of fact whether or not the defendant had used a firearm in the commission of each of the three crimes. The trial court declined to give such an instruction. It did give the jury an elements instruction on each of the three counts which required the state to prove that the defendant was armed with a deadly weapon and that the property of each victim was taken under threat of bodily harm. The jury was further instructed that a handgun is considered a deadly weapon.
The defendant contends in support of his position that he has been sentenced under the mandatory sentencing law without an opportunity for a hearing on the factual issue whether he used a firearm in the commission of the crimes and that this was an issue of fact to be determined by the jury rather than the trial judge at the time of sentencing. The defendant also complains that at no time during the trial did the jury or judge make a specific finding of fact that the defendant used a firearm. Defendant maintains that under the circumstances he has been denied due process of law.
The issues raised under the defendant’s first point are controlled by our recent decision in State v. Mullins, 223 Kan. 798, 577 P.2d 51 (1978). In Mullins we held that K.S.A. 1976 Supp. 21-4618 does not add an additional element to the criminal offenses defined in Article 34 of Chapter 21 of the Kansas Statutes Annotated and that the state is not obligated to charge, or to prove during trial, that the accused used a firearm in the commission of an Article 34 offense in order that 21-4618 be invoked. We further held that whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing. It need not be submitted to the jury. (State v. Kleber, 2 Kan. App. 2d 115, 575 P.2d 900.) The refusal of the trial court to submit to the jury the factual issue of whether the defendant used a firearm in the commission of the three robberies involved in this case did not deny the defendant his constitutional right to a trial by a jury nor due process of law.
Defendant further complains that the trial court never made a specific finding that the defendant had used a firearm in these robberies. The record shows otherwise. At the close of the evidence, and again on the denial of the defendant’s motion for a new trial, the trial court stated that the evidence was clear that the defendant did in fact use a firearm during the commission of the robberies. On June 23, 1977, the trial court sentenced the defendant on each of the three counts for a term of not less than five years nor more than life, the sentences to run consecutively. The sentences were imposed under K.S.A. 21-4618. At the time the sentences were imposed, the defendant did not request a hearing before the judge to determine whether the defendant personally had used a firearm in the commission of each of the three robberies. At that time the trial court and counsel must have assumed that 21-4618 required a mandatory minimum sentence on a conviction of aggravated robbery if a firearm was used either by the defendant personally or by his accomplice in the robbery. Of course, the trial court and counsel did not have the benefit of our opinion in State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559, which was handed down on February 25, 1978. There we held that 21-4618 applies only to the defendant personally armed with a firearm at the time the crime is committed, not to an unarmed accomplice.
From the record we note that, following imposition of the original sentences, the defendant filed a motion to modify the sentences and on October 4,1977, the sentences were modified so that the sentences under counts 2 and 3 were made to run concurrently but consecutively to the sentence under count 1. We have concluded that, under these circumstances, the defendant was not prejudiced by the court’s imposition of a mandatory sentence for the robbery committed under count 2. As noted above, the testimony presented under count 2 was undisputed that the defendant did not personally use a firearm. The defend ant was sentenced under count 2 to the statutory minimum of five years to a maximum of life. Since the sentence on count 2 was made to run concurrently with the sentence on count 3, we have no hesitancy in finding that the defendant suffered no prejudice. The evidence was undisputed that the defendant personally used a firearm in the commission of the aggravated robberies included under counts 1 and 3. Hence, the mandatory minimum sentence of five years was required under those counts by K.S.A. 1976 Supp. 21-4618. Since the defendant did not suffer prejudice as the result of the imposition of a mandatory sentence on count 2, we find no reason to set aside the sentence or require a resentencing.
The defendant’s other point on the appeal is that the trial court erred in refusing to permit defense counsel to cross-examine a police officer in regard to the defendant’s request to submit to a polygraph test. We find this point to be without merit. It is the rule of this state that testimony in a criminal trial that a defendant either refused a polygraph test or offered to submit to one is not admissible into evidence. (State v. Roach, 223 Kan. 732, 576 P.2d 1082 [1978]; State v. Emery, 218 Kan. 423, 425, 543 P.2d 897 [1975].)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an action brought individually and derivatively by James G. Newton, plaintiff-appellee, against Hornblower, Inc., a Kansas corporation, Hornblower, Ltd., a Kansas limited partnership, Hanover House, Inc., a Kansas corporation, E. H. Gubser and Edward I. Cohen. Judgments were entered in favor of plaintiff in varying amounts and in connection with varying claims totaling $133,331.03 actual damages, $100,000.00 punitive damages against Gubser, and $125,000.00 punitive damages against Cohen. In addition, attorneys fees and litigation expenses in the amount of $69,576.06 were allowed plaintiff against Cohen, Gubser, Hornblower, Inc. and Hornblower, Ltd. An additional judgment was rendered in favor of Newton, as Trustee for Velmer J. Gardner, in the amount of $4,030.80 actual damages, and punitive damages against Gubser in the amount of $3,067.00 and against Cohen in the amount of $3,833.00.
The parties are not in agreement as to the complicated factual situation, a recitation of which covers 19 pages of the appellants’ brief and 22 pages of the appellee’s brief. We will attempt to condense those facts considerably.
Hornblower, Inc. was organized in June of 1962 by Newton, Gubser and Cohen, each investing the sum of $400.00 in return for one-third of the corporate stock. The corporation was formed for the primary purpose of acting as the general partner of Hornblower, Ltd. in connection with the construction, ownership and operation of a Ramada Inn in Wichita, Kansas.
Hornblower, Ltd., a Kansas limited partnership, was organized in September, 1962, with Hornblower, Inc., the general partner, owning 60%, Newton, Gubser and Cohen, limited partners, each owning 13% and Gardner, a limited partner, with 1%. Gardner formerly had certain rights to a Ramada Inn franchise for the Sedgwick County area and in return for his release of those rights to Hornblower, Inc. and Hornblower, Ltd., he received a 1% interest in the limited partnership. Hornblower, Inc. obtained from Ramada Inns, Inc. of Phoenix, Arizona, an exclusive franchise for the construction, ownership and operation of Ramada Inns in Sedgwick County, Kansas. This franchise was subsequently assigned by Hornblower, Inc. to Hornblower, Ltd.
Ramada Inn East was constructed on leased ground at 8300 East Kellogg, Wichita, and opened for business in April of 1963. Hornblower, Inc. was the management entity for the motel and Hornblower, Ltd. was the operating entity. Hornblower, Ltd. paid to Hornblower, Inc. a management fee of 5% of the gross income from Ramada Inn East. In addition, Hornblower, Inc., as the general partner of Hornblower, Ltd., received 60% of the profits of the partnership.
Cohen, Newton and Gubser were the original officers and directors of Homblower, Inc. and each took an active part in the construction and operation of the motel through December, 1964. In December, 1964, Newton resigned as an officer of Hornblower, Inc. but retained his position as a director. From that time forward, Cohen and Gubser were the managing officers and directors of Hornblower, Inc. and handled the management and operation of the motel. Newton withdrew from any active participation in the management of the corporation or the limited partnership.
The original motel consisted of 110 rooms plus restaurant, banquet and recreational facilities. It has proved highly successful over the years and has been quite profitable to all three of the original principals.
Hanover House, Inc., a Kansas corporation, was organized in May, 1967, with its stockholders being Cohen and the immediate family of Gubser. The corporation was organized to operate the restaurant at the motel and to furnish and equip a 47-room addition to the motel.
Plaintiff brought this action for actual and punitive damages claiming that defendants Cohen and Gubser had systematically taken actions beneficial to themselves individually and detrimental to plaintiff, Hornblower, Inc. and Hornblower, Ltd. Specific claims include excessive management fees and salaries, misappropriation of corporate funds and assets, payment of expenses of Hanover House, Inc. by Hornblower, Inc. and Ltd., and, among others, misappropriation of business opportunities.
With the foregoing identification of the parties and limited factual background, we will proceed to the issues raised by appellants and develop additional facts as may be necessary to discuss the points involved.
Appellants designate some 18 different points in their record on appeal but have consolidated the principal ones in their briefs and arguments to 9.
I.
Appellants’ first point attacks the jurisdiction of the trial court due to certain alleged deficiencies in the pleadings and pretrial order. The contention is that the second amended petition, the last one filed, along with certain amendments allowed by the pretrial order, are insufficient to meet the requirements for a derivative action under K.S.A. 60-223a and therefore the court lacked jurisdiction.
K.S.A. 60-223a provides:
“Derivative actions by shareholders. In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the petition shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the state of Kansas which it would not otherwise have. The petition shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary under the applicable law, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may be maintained only if the court is satisfied that the plaintiff will adequately represent the interest of the corporation or association. In the conduct of the action the court may make appropriate orders corresponding with those described in K.S.A. 60-223(d). The action may be dismissed or compromised only with the approval of the court upon notice to shareholders or members in such manner as the court may direct.”
The final pleadings were accepted as filed in the pretrial order of August 22, 1975. When the case was called for trial on September 8,1975, defendants moved for summary judgment as to all claims based upon the alleged derivative nature of the action. Appellants contend the second amended petition failed to comply with K.S.A. 60-223a in several particulars, principally in its failure to allege that plaintiff had made any prior efforts to obtain action by the directors and partners, Gubser and Cohen, and the reasons for failing to make any such efforts. Appellants assert such failure to comply with the statute is jurisdictional. After argument on the motion for summary judgment, the trial court allowed an amendment to the pretrial order, amending plaintiff’s pleadings to include allegations that no request was made by plaintiff for action by the directors and officers of the corporation or the other partners of the partnership for the reason plaintiff believed such action would be futile. The trial court also made the requisite finding that plaintiff could adequately represent the interests of the corporation, limited partnership and Velmer J. Gardner, the 1% limited partner, who was not joined as a party in this action. Over the objections of the defendants, the case then proceeded to trial and, while the record is not entirely clear, apparently as a derivative action under K.S.A. 60-223a and 60-223b.
K.S.A. 60-223a parallels Rule 23.1 of the Federal Rules of Civil Procedure, and authorities interpreting the federal rule are persuasive. While the statute has not been previously before this court, there is considerable authority for the proposition that if the majority of the board of directors are themselves accused of self-dealing, demand upon them to sue themselves is deemed futile. Liboff v. Wolfson, 437 F.2d 121 (5th Cir. 1971); Levitt v. Johnson, 334 F.2d 815 (1st Cir. 1964), cert. den., 379 U.S. 961, 13 L.Ed.2d 556, 85 S.Ct. 649 (1965); Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964), cert. den., 380 U.S. 956, 13 L.Ed.2d 972, 85 S.Ct. 1081 (1965); Meltzer v. Atlantic Research Corporation, 330 F.2d 946 (4th Cir. 1964), cert. den., 379 U.S. 841, 13 L.Ed.2d 47, 85 S.Ct. 78; Cathedral Estates v. Taft Realty Corporation, 228 F.2d 85 (2d Cir. 1955).
Wright and Miller discuss the demand requirement under such conditions as follows:
“In some instances, requiring plaintiff to make a demand on the board of directors to take the action he desires would force him to undertake a purely ritualistic act. An obvious example of a situation of this type is when the basis of plaintiff’s complaint is mismanagement or fraud on the part of a majority of the directors itself. Thus, rigid adherence to Rule 23.1 in this context would oblige plaintiff to demand that the directors bring suit against themselves, a futile gesture. . . .” 7A Wright and Miller, Federal Practice and Procedure § 1831, p. 378 (1972).
The courts are generally lenient in excusing the need for a demand prior to bringing a stockholder derivative action when a petition or complaint recites circumstances that would make the demand futile or useless. On a motion to dismiss the complaint for failure to make a prior demand, the usual standard is whether any set of facts can be shown that would prove futility is applicable. Jannes v. Microwave Communications, Inc., 57 F.R.D. 18 (N.D. Ill. 1972). The determination of whether a demand on the corporate directors is necessary or whether an excuse is sufficient to enable the bringing of a derivative action without demand is within the sound discretion of the trial court. Walden v. Elrod, 72 F.R.D. 5 (W.D. Okl. 1976); see also de Haas v. Empire Petroleum Company, 435 F.2d 1223 (10th Cir. 1970). The trial court did not abuse its discretion in allowing amendment of the pretrial order and the action to proceed derivatively as well as individually. K.S.A. 60-216.
II.
In their second point on appeal appellants argue the doctrines of estoppel, waiver and laches and the statute of limitations bar plaintiff from recovering any damages for most of his claims.
Following the opening of Ramada Inn East, Hornblower, Inc. was receiving a management fee from Hornblower, Ltd. of 5% of its gross income. Newton, Cohen and Gubser received from the corporation a 5% management fee and shared the same equally. At a board of directors meeting in December, 1964, Newton withdrew as an officer of the corporation and relinquished total management to Cohen and Gubser. The parties testified there was a difference of opinion, between Newton on the one hand and Cohen and Gubser on the other, as to how the motel should be managed and they decided “to split the sheets” and not enter into any additional ventures together. Newton, however, retained his position as a director of the corporation and kept his ownership interest in both the corporation and partnership. At the same meeting, the management fee to be paid by the corporation was reduced to 4% of the adjusted gross of all room revenues and was paid equally to Cohen and Gubser. At the annual board meeting in December, 1965, the fee was changed to 3% of gross room sales payable equally to Cohen and Gubser. In December, 1972, the fee was raised to encompass the entire 5% received by the corporation from the partnership and was paid equally to Cohen and Gubser. There were no formal meetings of the board of directors, stockholders or partners between December, 1965 and December, 1972. Cohen and Gubser contend meetings were held informally several times a year at the national and regional meetings of the Ramada Inns, Inc. Newton contends that while he attended those meetings and did talk on occasion with Cohen and Gubser, there were no detailed discussions of the Ramada Inn East operations and no meetings of the three were actually held to set policy or make decisions. No minutes of such alleged meetings were prepared until after a demand was made by Newton in 1972 for a copy of any minutes. Newton had received regular reports from the corporation from 1964 to 1972 and received regular distributions of dividends from the corporation during this period.
Prior to May, 1967, Ramada Inns, Inc. had been putting pressure upon Cohen and Gubser to open a new motel in Sedgwick County or to expand the existing one. Cohen and Gubser worked out an agreement with the motel land owner to finance the construction of a 47-room addition to the existing motel. The addition was opened in April, 1968. No contact was made by Cohen and Gubser with Newton relative to the plans, financing, construction, etc. of the addition.
May 17, 1967, Hanover House, Inc. was incorporated. The corporate stock was owned 50% by Cohen and 50% by the family of Gubser. Newton was not consulted or advised of the formation or ownership of the corporation. On May 18, 1967, Hanover House, Inc. was assigned the restaurant lease and assumed operation of the food service for the motel. Although the owner of the motel ground had agreed to finance the construction of the 47-room addition, he would not agree to finance the furnishings. On the same date, May 18, 1967, Hanover House, Inc. entered into an agreement whereby Hanover House, Inc. would provide the furnishings for the 47-room addition in return for an assignment of 30% of the profits of Hornblower, Ltd., (the 30% agreement). Newton was not consulted about the 30% agreement. On subsequent financial reports furnished to Newton, the payments under the 30% agreement were shown as “equipment rental.” During the same period, from May, 1967 to late 1972, various expenses of Hanover House, Inc. were actually paid by Hornblower, Inc. and Ltd. The ultimate result was to divert substantial funds that would have been available for distribution to Newton, Cohen and Gubser, as equal stockholders of Hornblower, Inc., to Hanover House, Inc. where they were distributed to Cohen and the family of Gubser.
Appellants assert that plaintiff is barred by the doctrines of laches, waiver, estoppel and the statute of limitations from asserting any claims for most of the questioned payments. Plaintiff contends the defenses are not available because the true facts had been concealed from him. He had not been consulted about the 30% agreement nor advised of the ownership of Hanover House, Inc. and the monthly reports did not disclose the true nature of the questioned payments. Cohen and Gubser contend Newton, as a director and stockholder, took no steps to inquire into the operations of the motel. Defendants assert that Newton, as a director, is chargeable with notice and knowledge of the activities, records and management of the corporation. In support of this contention, appellants cite two Kansas cases setting out the duty of a director to keep himself informed of the affairs of the corporation. Noll v. Boyle, 140 Kan. 252, 36 P.2d 330 (1934); Darling & Co. v. Petri, 138 Kan. 666, 27 P.2d 255 (1933). In Darling, the court stated in the course of its opinion:
“Can a director of a corporation be heard to say that he does not know the nature of the business his corporation is conducting? The duty of a director as a member of its board of directors is to direct, guide and manage its corporate affairs. He is in effect a trustee. To discharge these responsibilities it is his duty to keep himself informed of its business activities, and especially in respect to its business policies. . . .”, at page 670.
Appellee counters with this court’s recent statement in Sampson v. Hunt, 222 Kan. 268, 272, 564 P.2d 489 (1977) dealing with a managing director’s duty toward a non-managing director:
“. . . Although the majority of the earlier cases held to the contrary, the more recent cases hold that in a closely held corporation where one director or officer has a superior knowledge of corporate affairs because he is intimately involved in the daily operations of the corporation while the other director or officer has only a limited role in corporate management, the fiduciary duty is the same as if the latter were a stockholder not actively engaged in corporate affairs. (Helms v. Duckworth, 249 F.2d 482 [D.C. Cir. 1957]; Childs v. RIC Group, Inc., 331 F. Supp. 1078 [N.D. Ga. 1970]; Kardon v. National Gypsum Co., 73 F. Supp. 798 [E.D. Pa. 1947].)”
Kansas has always imposed a very strict fiduciary duty on officers and directors of a corporation to act in the best interest of the corporation and its stockholders. The duty imposed by this position of trust requires an officer or director to work for the general interests of the corporation. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, Syl. ¶ 2, 531 P.2d 428 (1975). As recognized in the recent case of Delano v. Kitch, 542 F.2d 550, 554 (10th Cir. 1976), the duty imposed by Kansas is much stricter than in many jurisdictions:
“It is apparent from an examination of the Kansas decisions that the prevailing rule in Kansas sets a higher or stricter fiduciary standard required of directors and officers of corporations than in some other jurisdictions. We stated in Blazer v. Black, 196 F.2d 139 (10th Cir.), that the Kansas rule was somewhat different from that elsewhere prevailing. This statement was in reference to a director seeking to purchase corporate shares from a stockholder. It would not seem necessary in this diversity suit to detail the development of the state doctrine. It is sufficient to point out that in the very early Kansas cases of Thomas v. Sweet, 37 Kan. 183, 14 P. 545; Mulvane v. O’Brien, 58 Kan. 463, 49 P. 607; Stewart v. Harris, 69 Kan. 498, 77 P. 277; Peckham v. Lane, 81 Kan. 489, 106 P. 464; Consolidated Oil, Gas & Mfg. Co. v. Overfield, 113 Kan. 294, 214 P. 809; Abbott v. Inland Oil, 161 Kan. 316, 167 P.2d 287, down to Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 531 P.2d 428, [(sic) 216 Kan. 256, 531 P.2d 428 (1975)] the position of the Kansas courts has been clear and consistent in enforcing a very strict fiduciary duty on directors in their relation both to the corporation and to the stockholders. The court in Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 531 P.2d 428 [(sic) 216 Kan. 256, 531 P.2d 428 (1975)] said: ‘The officers and directors of a corporation occupy a position of trust, . . . with respect to the corporation and its stockholders.’ ”
In the present case there are no third parties involved (other than Gardner with a 1% interest in the limited partnership) and plaintiff relied solely on the good faith of Cohen and Gubser.
Appellants urge that simply because plaintiff Newton had a duty to the corporation to keep himself reasonably apprised of the status of the corporation he should be charged with knowledge of the 30% agreement and other expenditures and should thus be estopped to bring this action. Although this court has held that the doctrine of estoppel is generally applicable to derivative claims (see Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 351, 161 P.2d 504 [1945]; Fox v. Kansas Farmers' Union Royalty Co., 157 Kan. 297, 307, 139 P.2d 815 [1943]), the doctrine is by its very nature equitable. The doctrine of estoppel is for the protection of innocent persons, and as a rule only the innocent may invoke it. Stratford Arms, Inc. v. Zoning Board of Adjustment, 429 Pa. 132, 239 A.2d 325 (1968). Equitable estoppel is founded upon principles of morality and fair dealing and is available only for the protection of claims made in good faith. Singewald v. Girden, 37 Del. Ch. 252, 139 A.2d 838 (1958). The party raising the defense of estoppel is himself bound to exercise good faith in the transaction. Board of County Commissioners v. Brown, 183 Kan. 19, 325 P.2d 382 (1958). Thus, a party may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, or fraud committed or participated in by him, or on acts or omissions induced by his own conduct, concealment or representations. 28 Am.Jur.2d, Estoppel and Waiver, §§ 78, 79 (1966).
In Harman v. Willbern, 374 F. Supp. 1149 (D. Kan. 1974), aff’d, 520 F.2d 1333 (10th Cir. 1975), the court held that absent actual knowledge of the wront' ful activities on the part of co-directors, the same cannot be imputed to the other director unless in the exercise of reasonable care attending his responsibilities, he should have been aware of suspicious circumstances demanding corrective action.
The transactions of which defendants say plaintiff should have been aware appeared at the time to be normal and proper, at least on their face. Plaintiff was a director “in name only.” No corporate meetings were held for some time. Plaintiff was not actively engaged in the management of the business, having relied on the defendants to do so. Plaintiff also did not call any directors meetings himself. From his viewpoint, all was going well. As stated by the court in Harman v. Willbern, 374 F. Supp. at 1163:
“As previously noted, it is only when viewed with the perspective aided by hindsight of what actually occurred that the events which transpired during this seven month period look suspicious. At the time, all of the transactions now relied upon by the plaintiff appeared normal and proper, at least on their face. ... To now hold that these seemingly normal and proper transactions should have put a prudent director on notice of intended looting or precipitated a thorough investigation, based solely upon what actually transpired, is not permissible.”
Defendants were the active managers and officers and partners of both the corporation and the limited partnership, and plaintiff, as a stockholder, director, and limited partner, totally relied upon the defendants’ reports for his information. A review of the financial information and other corporate papers furnished by the defendants did not disclose any wrongdoing on behalf of the defendants. The trial court, in weighing the evidence presented, found that plaintiff acted in a reasonable manner in reviewing the financial information provided and that concealment by the defendants was the true cause of plaintiff’s lack of knowledge.
Appellants also contend that plaintiff’s claim should be barred by the defenses of waiver, laches, estoppel and the statute of limitations.
One cannot take advantage of waiver, laches, estoppel and the statute of limitations where his own concealment is the basis of the delay. The trial court found as a matter of fact the defendants concealed the facts giving rise to this claim and there is ample evidence to support the trial court in this regard.
III.
The basic issue raised by appellants’ third point is who bears the burden of proof in connection with certain expenditures and actions of the defendants.
In arriving at his decision, the trial judge categorized the plaintiff’s actual damages as (1) unauthorized expenditures, and (2) appropriation of business opportunities. The question of the appropriation of business opportunities is included in appellant’s fourth point and will be considered later in this opinion.
One of plaintiff’s principal claims against the defendants was that they breached their fiduciary duties to the corporation, the limited partnership and the plaintiff, individually, by making unauthorized expenditures of corporate and partnership funds to the benefit of the individual defendants and to the detriment of the corporation, partnership and plaintiff.
Plaintiff first became alarmed in early 1972 that all might not be well at Ramada Inn East when he noticed a substantial jump in management salaries. For the first time, plaintiff inquired about the motel operation and asked for an explanation. In August, plaintiff received a revised financial report which reduced management salaries by $7,200.00 and increased employees meals and accounting expense by $7,200.00. Upon receiving the revised financial report, plaintiff, in September, 1972, retained his personal accountant, E. Thomas Moulder, C.P.A., to investigate the operation of Ramada Inn East. In October, 1972, Mr. Moulder submitted a preliminary report to plaintiff. On October 10, 1972, Cohen and Gubser held a special meeting of the Board of Directors of Hornblower, Inc. and (1) removed plaintiff as a director, (2) amended the by-laws to provide for only two directors (3) eliminated preemptive rights of stockholders, and (4) increased the management fees payable to Cohen and Gubser. On December 18, 1972, Cohen and Gubser voted themselves special compensation of $12,000.00 each.
The trial court, in assessing actual damages, found that Cohen and Gubser had made unauthorized expenditures of corporate and partnership funds to their own personal benefit. Expenses, which should have been paid by Hanover House, Inc., were paid by the corporation or partnership, thereby reducing profits available for distribution to the stockholders and partners, which included plaintiff, and increasing profits to Hanover House, Inc., in which plaintiff did not participate. In addition to restaurant expenses of Hanover House, Inc., paid by the corporation and partnership, the trial court found that insurance premiums on defendants and members of their families and employees, excessive travel expenses, telephone expenses and excessive salaries and fees were unauthorized expenditures in a total amount of approximately $90,000.00. During the course of the trial, the defendants admitted some 100 payments had been made by error from the corporation or partnership but contended they were honest mistakes and defendants were willing to account for them.
Appellants contend the court was in error in finding there were unauthorized expenditures, other than those admitted by defendants, for the reason the plaintiff did not sustain his burden of proof on the contested items. Mr. Moulder testified for plaintiff and went through certain expenditures, item by item, and stated that he questioned their validity and correctness as corporate or partnership expenses. Moulder did not perform an audit of the books of defendants and did not attempt to personally verify the correctness of the questioned expenditures. Defendants contend such testimony was insufficient and therefore the judgment is not supported by sufficient evidence.
Defendants, in their testimony, merely went through the same expenditures, item by item, and testified they were valid corporate or partnership expenses without any supporting evidence.
Officers ánd directors of a corporation occupy a strict fiduciary relationship with respect to both the corporation and its stockholders. The same fiduciary standard applies as between directors. Sampson v. Hunt, supra.
Any unfair transaction induced by a fiduciary relationship between the parties gives rise to a liability with respect to unjust enrichment of the fiduciary. Where such transaction is attacked, the burden of proof is on the fiduciary to establish the fairness of the transaction, and to this end he must fully disclose the facts and circumstances, and affirmatively show his good faith. Stewart v. Harris, 69 Kan. 498, 77 P. 277 (1904); 76 Am. Jur. 2d, Trusts, § 230 (1975). Where the fairness of the transaction is challenged, there must be an affirmative showing of fairness and good faith, the burden being upon the parties seeking to sustain such transactions to prove this by clear and satisfactory evidence. Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 65 L.Ed. 425, 41 S.Ct. 209 (1921); First Trust & Savings Bank v. Iowa-Wisconsin Bridge Co., 98 F.2d 416 (8th Cir. 1938); 19 C.J.S., Corporations, § 789 (1940).
Defendants being in a fiduciary relationship toward plaintiff, the corporation and partnership bore the burden of proof in justifying the expenditures once they were put in issue by the plaintiff.
In challenging the trial court’s findings with respect to the alleged unauthorized expenditures, defendants contend it was error for the trial court not to believe defendants with respect to their testimony in support of the expenditures. The trial court found defendants simply failed to meet their burden of proof and although a different finder of fact may have weighed the evidence differently, it is not the function of an appellate court to retry the case. As stated in Parsons Mobile Products, Inc. v. Remmert, supra, at Syl. ¶ 1:
“On appeal it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is concerned only with the evidence which supports the trial court’s findings and not with the evidence which might have supported contrary findings.”
And more recently, we stated in Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 4, 548 P.2d 719 (1976):
“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.”
See also Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, 524 P.2d 690 (1974).
There was sufficient competent evidence to substantiate the trial court’s findings that defendants had the burden of proof and failed in meeting that burden.
IV.
In their fourth point on appeal defendants attack the court’s findings relative to what the trial court denominated “appropriation of business opportunities.” These transactions will be referred to as the “30% agreement” and the “site releases.”
As early as 1965, Ramada Inn, Inc. indicated that Hornblower, Ltd., as holder of the Ramada Inn franchise for all of Sedgwick County, should be considering an expansion program by either starting another motel or increasing the size and capacity of the existing motel. By 1967, it became apparent that some expansion was required and plans were developed for construction of a 47-room addition to the Ramada Inn East. Financing for the construction was provided by the owner of the ground but he would not undertake the financing of the necessary equipment, furniture, etc., required to furnish the 47-room addition. Defendants then undertook to form Hanover House, Inc. and it was organized May 17, 1967. On May 18, 1967, Hanover House, Inc. entered into an agreement with Hornblower, Ltd. whereby Hanover House, Inc. would provide the furnishings for the addition in return for a perpetual payment by the partnership of 30% of its net profits. On May 18,1967, Hanover House, Inc. was assigned the lease for the operation of the restaurant at the motel. Hanover House, Inc. did provide the necessary furnishings for the 47-room addition and the addition opened for business in April, 1968. Plaintiff was not advised or consulted about the construction of the addition or the methods of financing the addition and its furnishings. Monthly payments of 30% of the net profit of the partnership were made to Hanover House, Inc. and shown on the monthly financial statements as equipment rental. Plaintiff was not informed of the fact that the corporate stock of Hanover House, Inc. was owned fifty percent by Cohen and fifty percent by the family of Gubser. The court found from the evidence that the original cost to Hanover House, Inc. of furnishing the 47-room addition was $60,923.81. From May, 1968, through August, 1975, the partnership paid Hanover House, Inc. “equipment rental” of $220,151.48. The trial court awarded actual damages based upon the 30% agreement of approximately $48,000.00, held the agreement void and vested title to the furnishings in the partnership.
Defendants contend the trial court was in error, asserting there was no other financing available, they had done the best they could for the corporation and partnership, and that the method utilized was reasonable and necessary. There was conflicting evidence as to the availability of more conventional means of financing and the trial court findings of fact will not be disturbed on appeal.
The second area of so-called “appropriation of business opportunities” involved certain site releases for the construction of additional Ramada Inns in Sedgwick County. Once again, in 1972, Ramada Inns, Inc. was agitating for more expansion. Defendants contend the corporation and/or partnership were not financially capable of further expansion. A location was available in central Wichita at the intersection of Broadway and Kellogg and defendants, along with two other individuals, formed Kelway, Inc., with each of the four principals owning a 25% interest. The partnership then released to Kelway, Inc. the right to construct a Ramada Inn at the downtown location. A high rise Ramada Inn was subsequently erected and is operating at that location. Due to the distance between Ramada Inn East and Ramada Inn Central, plaintiff does not assert any claim for damages. The next site release involved what is known as Ramada Inn Tudor located at 9100 East Kellogg, only a short distance from Ramada Inn East. Tudor was under construction when its developer encountered financial difficulties and was unable to complete the project. The original development was not contemplated as a Ramada Inn but when the partially completed structure became available, the defendants saw another opportunity for Kelway, Inc. Again, there was a release of the right to construct a Ramada Inn by the partnership to Kelway, Inc. The trial court found that the opening of an additional Ramada Inn in such close proximity to the existing one did cause damage to Ramada Inn East. A trust was imposed upon the interests of Gubser and Cohen in Kelway, Inc., in favor of the limited partnership, to the extent of any monies received by the defendants arising from the Tudor operation.
Defendants argue that under the by-laws of Hornblower, Inc., they had a right to enter into the 30% agreement and the site releases and that such dealings were contemplated when the corporation was formed.
The by-laws provided:
“CONTRACTS WITH OFFICERS
“All officers of this corporation are permitted to do business with the corporation, either as a supplier of labor, materials or services, either directly for their own account or through any business, firm or corporation in which they may be a stockholder, director or officer. All officers of the corporation therefore shall be in the same position as any other member of the public from the standpoint of doing business with this corporation, and shall not be restricted in any way from doing business with the corporation because of the fact that the officer or director is an officer or director or stockholder of this corporation.”
This provision of the corporate by-laws, with certain restrictions, has now been essentially included in the new corporation code adopted in 1972. K.S.A. 17-6304. However, neither the by-laws of the corporation nor the new code authorizes a breach of the fiduciary duty imposed upon directors and officers, and the statute also requires a full disclosure of the material facts. In the instant case no disclosures were made to plaintiff until he instigated his own investigation. The discussion and authorities cited under point II of this opinion apply equally to the actions of the defendants in appropriating the business opportunities which rightfully should have inured to the benefit of the corporation and the partnership. Corporate officers and directors are required to actively promote the interest of the corporation and shall not place themselves in a position of personal interest conflict. Delano v. Kitch, supra; Parsons Mobile Products, Inc. v. Remmert, supra.
V.
Appellants next contend that the trial court erred in the admission of expert testimony as to the reasonableness of the management fees and salaries the defendants allowed themselves.
Plaintiff’s witness, Moulder, was allowed to testify that in his opinion the 5% management fee was excessive and that the salaries and bonuses paid the defendants were excessive. Moulder graduated with honors from Cornell University School of Hotel Administration, which included three years of summer apprenticeship in hotel administration. He spent the next thirteen years in management positions of hotels and motels of comparable size to Ramada Inn East. He handled every phase of hotel, food and beverage operations. He obtained a license as a certified public accountant in the State of Missouri and has handled all the accounting functions of the Ramada Inn operation in Springfield, Missouri, since January, 1969.
It would appear that Moulder was eminently qualified in the field of hotel and motel management. The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge. Plains Transp. of Kan. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978), and cases cited therein. The trial court did not abuse its discretion in allowing the testimony of the witness Moulder and its finding of actual damages is amply supported by the evidence. The evidence revealed that plaintiff, Gubser and Cohen had each received $67,960.00 in dividends and in addition, Gubser and Cohen had each received an additional $106,150.00 in fees and salaries.
When compensation or bonuses are voted by the directors to themselves, they must be reasonable and commensurate with the value of the services rendered. Knepper, Liability of Corporate Officers and Directors (2d Ed. 1973), § 6.06, p. 109. See also Missouri River R.R. Co. v. Richards, 8 Kan. 101 (1871). An officer-director whose vote is necessary to pass a resolution fixing compensation has the burden of showing its reasonableness. Wilderman v. Wilderman, 315 A.2d 610 (Del. Ch. 1974). The same rule applies to officer-directors who are also the majority stockholders. Goldman v. Jameson, 290 Ala. 160, 275 So. 2d 108 (1973); Knepper, supra, § 4.10, at 21 (Supp. 1976).
Defendants, having the burden of showing the reasonableness of the salaries and the management fees, failed to convince the trial court. The entire course of conduct by the defendants during this period of time demonstrates a lack of good faith and their intent to victimize the plaintiff. When plaintiff started his investigation of the defendants’ activities, he was immediately removed from the board of directors; salaries, never before authorized, were approved and paid by the defendants to themselves; management fees were increased; and dividends to plaintiff terminated. These facts were considered by the trial court and adequately substantiate his findings in this regard.
VI, VII and VIII.
Appellants’ next three points deal with the allowance of punitive damages, attorney fees and expenses to plaintiff. We will first address the issue of punitive damages.
Appellants contend it was error for the trial court to allow punitive damages in a stockholders’ derivative action as such an action has traditionally been a suit in equity rather than one at law. Appellants cite a volume of legal authority for the abstract proposition that in an equity action the court is without power to award punitive damages. Assuming, without deciding, that this ancient distinction still prevails, appellants totally ignore the fact that the claims of the plaintiff, in addition to their derivative nature, were also brought individually as a stockholder and partner against the defendants and that the trial court found as a matter of law that the defendants had breached their fiduciary duty to the plaintiff. This court, on several occasions, has approved the recovery of punitive damages as well as actual damages where a breach of a fiduciary duty is involved. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976); Beverly v. McCullick, 211 Kan. 87, 505 P.2d 624 (1973); Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 (1973); and see 14 Washburn L.J. 466 (1975). There was no error in the allowance of punitive damages.
Appellants next contend that if punitive damages are recoverable in the instant case then the court abused its discretion in the amount of damages awarded. Punitive damages in the amount of $100,000 were assessed against Gubser and $125,000 against Cohen. The amounts are substantial. A careful examination of the entire record justifies the conclusion reached by the trial court that defendants systematically embarked upon a course of conduct designed to deprive plaintiff of his rightful share of the fruits of his investment. Defendants assert that plaintiff should not be heard to complain because he has received a substantial return on an original investment of $400.00. It is undoubtedly true that the returns to all three investors were fantastic. Between December 31,1965, and December 31,1973, plaintiff and defendants Cohen and Gubser had each received $67,960.00 in dividends. However, the defendants also received another $106,150.00 each, by way of fees and salaries, mostly through concealment and deception. It is also true, however, that defendants did all the work and plaintiff had washed his hands of all responsibility for operation of the motel. It is obvious that, as early as 1967, when Hanover House, Inc. was formed, defendants had concocted a scheme which ultimately led to the diversion of all the profits of the corporation and partnership to the defendants or entities controlled by them. The end result was the cessation of the payment of any dividends or partnership profits to plaintiff.
“Exemplary, or punitive, damages Eire generally defined or described as damages which are given as an enhancement of compensatory damages because of the wanton, reckless, malicious, or oppressive character of the acts complained of. Such damages go beyond the compensatory damages suffered in the case; they are allowed as a punishment of the defendant andas a deterrent to others. . . .”22 Am. Jur. 2d, Damages, § 236 (1965).
Kansas has long followed this rule. In Watkins v. Layton, 182 Kan. 702, 324 P.2d 130 (1958), this court said at p. 705:
“The earliest Kansas cases indicate that damages, sometimes called exemplary, vindictive or punitive, are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive, or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; and 15 Am. Jur., Damages, § 266, p. 700.)”
Considering the avowed purpose of punitive damages and the actions of the defendants in this case, we cannot say that the amount of punitive damages shocks the conscience of the court or that the trial court abused its discretion in the allowance of such amounts.
In addition to the punitive damages granted plaintiff, the trial court granted plaintiff judgment for $69,576.06 for attorney fees and expenses incurred in the litigation. Plaintiff has also asked this court to allow an additional $24,298.79 for attorney fees and expenses incurred subsequent to the entry of judgment. Appellants cite numerous decisions of this court wherein we have repeated the long standing rule that attorney fees and expenses of a prevailing party in litigation are not recoverable from the defeated party in the absence of a clear and specific statutory provision therefor. Appellants rely on the following Kansas cases as authority for their position: Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 494 P.2d 1113 (1972); Gault v. Board of County Commissioners, 208 Kan. 578, 493 P.2d 238 (1972); McGuire v. McGuire, 190 Kan. 524, 376 P.2d 908 (1962); Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181 (1961); Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P.2d 775 (1952); Myers v. Strauss, 171 Kan. 91, 229 P.2d 774 (1951); Murrow v. Powell, 167 Kan. 283, 205 P.2d 1193 (1949); State, ex rel. v. Sage Stores Co., 158 Kan. 146, 145 P.2d 830 (1944); Beck v. Good, 147 Kan. 578, 77 P.2d 968 (1938); Nicholson v. Fawley, 112 Kan. 124, 210 P. 482 (1922); Zimmerman v. McMurphy, 111 Kan. 654, 208 P. 642 (1922); Evans v. Insurance Co., 87 Kan. 641, 125 P. 86 (1912); Stover v. Johnnycake, 9 Kan. 367 (1872).
On the other hand, appellee contends that the prevailing rule is that attorney fees and expenses are recoverable in a stockholders’ derivative action. Persuasive arguments are propounded in support of plaintiff’s position. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 24 L.Ed.2d 593, 90 S.Ct. 616 (1970); Bailey v. Meister Brau, Inc., 378 F. Supp. 883 (N.D. Ill. 1974); Tanzer v. Huffines, 315 F. Supp. 1140 (D. Del. 1970); Cole Real Estate Corp. v. Peoples Bank & Trust Co., 160 Ind. App. 88, 310 N.E.2d 275 (1974); 13 W. Fletcher, Cyclopedia of the Law of Private Corporations, §§ 6044 and 6045 (rev. perm. ed. 1970).
This court has long recognized that consideration of attorney fees and costs of litigation may be taken into consideration in arriving at the amount of punitive damages in an appropriate case. Brewer v. Home-Stake Production Co., 200 Kan. 96, 434 P.2d 828 (1967), and cases cited therein. In commenting upon his award of attorney fees, the trial judge in this case stated that he had not taken them into consideration in his determination of the amount of punitive damages but would have done so if he felt the attorney fees were not properly recoverable. Plaintiff argues that, based upon the judge’s remarks, the attorney fees should be allowed as punitive damages. To increase the already substantial punitive damages by such an amount would, in our opinion, be excessive. Regardless of the trial court’s comment, we are not inclined to depart from the long established rule in Kansas that attorney fees, as such, are not recoverable absent statutory authority. Additionally, we might point out that while the case at bar was brought by plaintiff, both individually and derivatively, as a matter of fact, he was the only stockholder other than the two individual defendants. His action was not one predicated to benefit a large group of other individuals at plaintiff’s expense as is frequently true in a stockholders’ derivative action. We hold that under the factual circumstances of this case, it was error to grant plaintiff judgment for attorney fees and expenses of litigation absent express statutory authority. For the same reason, plaintiff’s request for fees and expenses on appeal is denied.
IX.
Appellants’ final major point on appeal is a catchall of various complaints based upon alleged bias and prejudice of the trial judge. Appellants contend they have not received a fair trial. The trial of this action was hotly contested, lasted several days and resulted in a voluminous record. We have carefully examined the record and all of the court’s various rulings, findings, conclusions and judgments and find no merit in appellants’ position. All parties were given every opportunity to adequately present their evidence, the court made 96 detailed findings of fact and conclusions of law, which cover 30 pages of the record, and also went to great lengths to explain its findings and conclusions in a supplemental memorandum and subsequent court hearings.
The judgment is affirmed with the exception of the judgment for attorney fees and expenses in the sum of $69,576.06, which is reversed and set aside.
Plaintiff’s application for additional fees and expenses on appeal is denied. | [
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